R. v. Nguyen Date:, 2012 BCPC 97

Citation: R. v. Nguyen Date: 20120228 2012 BCPC 0097 File No: 212301-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. THIEU NHAN NGUYEN BAN ON PUBLICATION 517(1) CCC; 486.4(2) CCC; Restricted Access EXCERPTS FROM PROCEEDINGS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. BAGNALL Counsel for the Crown: K. Turnbull Counsel for the Defendant: A. Turton Place of Hearing: Vancouver, B.C.

Date of Hearing: February 28, 2012 Date of Judgment: February 28, 2012 [ 1 ] THE COURT: On March 30, 2011, the accused entered a plea of guilty respecting a charge of sexual assault, which arose as a result of events which occurred on December 6, 2009. The Crown had proceeded summarily with respect to the Information. The judge who was presiding on March 30, 2011, ordered that a Pre-Sentence Report be prepared and the sentencing was adjourned until July 18, 2011. [ 2 ] On that day, the matter appeared on my list.

Counsel asked that the sentencing be adjourned and then difficulties arose with respect to the scheduling of this matter. Those problems persisted for some months. Sentencing finally reconvened before me on January 30, 2012. I heard submissions on that day and on February 9, 2012, and reserved my decision respecting sentence until today. [ 3 ] The facts are as follows. The accused's spouse was a friend of the mother of the complainant, known as T., who was seven years old at the time. The families socialized regularly.

On December 6, 2009, the complainant was dropped off at the home of the accused and his spouse so that they could babysit for her while her mother was out.

[4] During the visit, the accused lifted the complainant up in his arms to look at the Christmas tree and, while he held her, he rubbedher vaginal area with his hand under her underwear. She felt pain so she screamed and told him to stop. He did stop and he put herdown. [5] After this, she reported that her vaginal area was itchy and sore. Later on the same day, she told her mother what had happened. [6] The next day, the complainant's mother confronted the accused about what her daughter had told her. He admitted his actionsand apologized. [7] The complainant was examined by a doctor.

She suffered no physical injury. [8] The Information was sworn on March 17, 2010. The accused was interviewed on March 4, 2011. He said the following abouthis interaction with T.: When she was watching the TV for a little while, T. then asked me if she could have some water and so I took some water for her todrink. I got a cup of water for her to drink. When she finished it a little later, she asked for another cup and so that time I joked aroundwith her, the truth is I did joked around with her and I did touched her, I hugged her, I hugged her.

I rubbed her stomach and said to her,"If you drink too much, it's not good," something like that. To be honest, during that time, I did touched her a little bit, yes, but -- but -- but right after the -- the -- that moment -- right? Right then Iknew if -- I can't do -- I can't do this kind of stuff. It's not good to do these kind of stuff and so I stopped right away, right. [9] Mr. Nguyen's written apology is included in the written materials filed by the Crown. It reads in its entirety: I really don't know what happened in my mind.

However, right in that moment, I talk to myself, "No, No, You have to stop that stupidaction to T. immediately and feel very sorry, very regret. From that day, I became so depress. I understood that I already ruin my life. From now on, how can I teach my sons as I did before while I want them to be a good men, especially to be a well education people tohelp the community or to be a scientist as I named them? How can I be back to the normal life as before while my sons, my friend, and my family proud of me? I am very very sorry and regret. [10] English is not Mr. Nguyen's first language.

Making allowances for that fact, it is still apparent that his regret centres on theeffect his actions have had on himself and his family. There is no mention of the effect of his actions on the complainant nor of the effecton her family in the accused's letter nor in his interview. [11] The impact of the accused's actions on T. is set out in the Victim Impact Statement written by her mother and included in thematerials filed by the Crown. She referred to the loss of trust resulting for her daughter and for herself, and to changes in her daughter'sbehaviour which have resulted.

She described her daughter as having frightening dreams and sleep disturbance, as being more clingywith her mother, and as being more prone to anger, screaming, and profanity. [12] The Pre-Sentence Report was based entirely on information provided by the accused because he provided the writer of theReport with no other contacts. He is 52 years of age. His first marriage, in Vietnam, resulted in the birth of two children, now grown,and ended in divorce. He came to Canada in 1989 and is now a Canadian citizen. He began a common law relationship with his presentspouse and they have two sons aged twelve and nine.

The family is intact, but Mr. Nguyen and his spouse live together as roommates,not as a married couple. He is trained as a computer technician, but is presently unemployed. He has no criminal record. [13] Mr. Nguyen accepts responsibility for his actions, but cannot explain them. The author of the Pre-Sentence Report wrote that hedoes appear to understand the impact of his behaviour on the complainant and this, of course, is important in these proceedings. [14] Counsel are in agreement respecting the appropriate sentence and they indicated to me that they were making a joint submission.

They agree that a sentence of incarceration is necessary here, they agree that 12 months is the appropriate length of the sentence, andthey agree that the sentence ought to be served by way of a Conditional Sentence Order. [15] A great deal has been written, and likely will be written in the future, about the weight to be given to a joint submission. Counselfor the accused provided me with three cases respecting this issue. One of those cases was decided in Ontario, Regina v. Cerasuolo(2001), (ON CA), 151 C.C.C. (3d) 445, a decision of the Ontario Court of Appeal.

This is a jurisdiction thatapproaches plea bargaining and joint submissions in a different way than we do in British Columbia. [16] In Ontario, the concern is expressed in the jurisprudence that an accused who gives up his right to a trial should have "confidencethat his plea negotiation will be respected by the sentencing judge". In light of the corollary suggestion that a judge who is not going to"go along" with a joint submission ought to consider favourably an application to withdraw a guilty plea, the law in Ontario seems to bethat joint submissions should almost always be followed by the sentencing judge.

Indeed, the law there is that in order to depart from ajoint submission, the sentencing judge must conclude that the proposed sentence would be "contrary to the public interest and that thesentence would bring the administration of justice into disrepute" (Regina v. Cerasuolo, at paragraph 8). It is clear that this statementdoes not accurately reflect the law in British Columbia. [17] Counsel for the accused also referred to Regina v.

Bezdan, 2001 BCCA 215, in which this was said at paragraph 15: I would not go so far as to say that a sentencing judge can only depart from the sentence suggested in the joint submission if he or she issatisfied that the proposal is contrary to the public interest, or that the sentence proposed would bring the administration of justice intodisrepute. It is not clear to me that these two circumstances cover all situations in which a sentencing judge might conclude that thesentence proposed was "unfit".

[ 18 ] These comments of Madam Justice Prowse were quoted with approval by Madam Justice Ryan in Regina v. Koenders , 2007 BCCA 378 . Madam Justice Ryan also said at paragraph 45: “Joint submission” has become a term of art. It denotes an agreement made between the Crown and defence, where, in return for a guilty plea, counsel will together urge the sentencing judge to impose a particular sentence. It is clear from the cases that the court is not bound by a plea bargain, or the joint submissions of counsel, although the latter ought to be given appropriate weight.

Sentencing judges will not often depart from the recommendation. [ 19 ] I have read and considered the following cases not cited by counsel in addition to Regina v. Koenders : Regina v. Olson , 2011 BCCA 8 ; Regina v. Penney , 2010 BCCA 307 ; and Regina v. Furey , 2007 BCCA 395 . [ 20 ] In her submission respecting joint submissions, Ms. Turton also referred to Regina v. Lister , 2003 BCCA 269 , a case in which she represented the appellant offender.

That case involved the disposition in British Columbia of charges which arose in Saskatchewan and focused on the resulting tension for the sentencing judge between the sentencing range here and the sentencing range in the jurisdiction in which the charges arose, all of which is not relevant, strictly speaking, to the case at bar. [ 21 ] It is my view that the fact that counsel agree as to the appropriate sentence should be and is a factor to be taken into account by the sentencing judge, but that there remains an obligation on the judge to determine and hand down a sentence which is fit.

We work within an adversarial system in which counsel advocate for a particular result and the sentence is decided by the court. [ 22 ] To suggest, as is set out in some of the cases that I reviewed, that where the sentencing judge is disinclined to "go along" with the joint submission, the offender ought to be given an opportunity to apply to withdraw his or her plea of guilty is simply to enshrine the notion that the sentencing judge should be bound by the fact that counsel agree as to sentence.

The spectre is raised of counsel "shopping around" their joint submission until they find a judge who is willing to "go along" with it. The potential for this sort of result does not enhance the repute of the administration of justice. Judges should neither be, nor feel, pressured into handing down any particular sentence. Judges must ultimately in all cases hand down fit sentences according to the law. [ 23 ] Where counsel agree about the appropriate sentence, that fact ought to have significant weight for the sentencing judge.

If the sentence about which counsel agree is within the appropriate range for the offence and offender in question, in other words, on the face of it a fit sentence, then weight is not really an issue. [ 24 ] The problem arises where the sentence proposed by counsel appears to be inappropriate for the offence in question and the offender in question, in other words, an unfit sentence. In those circumstances, in my view, counsel should be prepared to explain to the court why the proposed sentence should result, having regard to all of the surrounding circumstances.

Counsel should not think it sufficient to assert that they agree on the appropriate sentence, with nothing more presented. To assert that the fact of a joint submission is a basis on which an otherwise inappropriate sentence might be handed down is to suggest that the judge ought to abdicate the responsibility that a judge has to counsel. [ 25 ] It is extraordinary that it needs to be said, but apparently it is necessary to say, that in each case, counsel must advocate for the position he or she puts forward.

Counsel must, regardless of whether a joint submission is made, convince the sentencing judge that what he or she suggests falls within the law and is an appropriate end result. [ 26 ] Counsel for the Crown provided me with two cases in support of her submission that the accused in the case at bar ought to be sentenced to be incarcerated by way of a Conditional Sentence Order. The first was Regina v. Edwards , 2003 BCCA 214 .

This case involved not a charge of sexual assault such as in the case at bar, but a charge of sexual exploitation contrary to s. 153 of the Criminal Code . [ 27 ] When that case was decided, a Conditional Sentence Order as provided for in s. 742.1 was available for that offence. The law has changed since this case was decided. A Conditional Sentence Order is no longer available for this offence because a minimum sentence of incarceration is required upon conviction for sexual exploitation. [ 28 ] The facts in Edwards are also completely different than the facts in the case at bar.

The complainant in Edwards was a girl aged 14 and 15. The sexual contact between the accused and the complainant, while unlawful, was consensual. The complainant in the case at bar was seven years of age at the time of the offence and in no way consented to being touched by the accused. [ 29 ] The second case referred to by the Crown was Regina v. Burn , 2007 BCPC 353 . This case also deals with a charge of sexual exploitation and a Conditional Sentence Order was available at the time it was decided, but is no longer available.

The complainant in the Burn case was 16 years of age and again, while unlawful, the sexual contact between the complainant and the accused was consensual. [ 30 ] It is unfortunately necessary to highlight how inappropriate it was for counsel for the Crown to rely on these cases in support of her position. The facts in these cases are as different as a seven-year-old child is from a teenager. In addition, these cases were decided before a profound change in the law. A Conditional Sentence Order is no longer available for the offences in question. I am at a loss to understand why Ms.

Turnbull cited these cases to the court as if they had precedential value. [ 31 ] Ms. Turton relied on the case of Regina v. Gracieuse , an unreported decision of Judge Stone of the Provincial Court, Port Coquitlam Registry Number 83463, decided on August 17, 2010. The accused in that case was charged with sexual assault of his 12- year-old daughter as a result of one incident. Counsel for the Crown submitted that a jail sentence was necessary, but that it was appropriate that the offender serve that sentence in the community. Ms.

Turton acted for the accused in that case and she agreed. [ 32 ] There was no discussion about the availability of a Conditional Sentence Order in respect of a charge of sexual assault, an issue to which I will return in a few minutes. Counsel for the Crown simply told the court that such a sentence was available where the Crown proceeded summarily and the court accepted that proposition.

[33] In that case, counsel did not agree respecting the appropriate length of the Conditional Sentence Order. The court ultimatelysentenced the offender to serve 18 months by way of a Conditional Sentence Order. Judge Stone took into account, apparently, as I readthe decision, as the primary factor in determining the appropriate sentence, that the complainant and her mother both wished to maintainthe family unit. These circumstances are not at all like those in the case at bar. [34] What is the appropriate sentence for this offender and this offence?

As I have indicated, the cases referred to by counsel werenot of assistance to me. I have read and considered the following cases: Regina v. T.P.C., 2000 BCSC 742 Regina v. D.D., (ON CA), [2002] O.J. No. 1061 (Court of Appeal) Regina v. G.R.H., 2004 BCPC 1722 Regina v. R.E.M., 2005 BCSC 698 Regina v. R.S.H., 2005 BCSC 927 Regina v. C.G.D., 2009 BCSC 404 Regina v. N.V., 2010 BCPC 404 Regina v. R.A.J., 2010 BCCA 304 Regina v. Sabbe, 2011 ONSC 3627 [35] I note that these cases are not necessarily comparable to the case at bar in terms of the circumstances of the offence and theoffender.

The cases are of assistance because of the general comments that are made about the sexual abuse of children. [36] In Regina v. D.D., the Ontario Court of Appeal commented as follows at paragraphs 33 through 36: Before going further, I wish to emphasize that the ranges which I have identified are not meant to be fixed and inflexible. On thecontrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases.

Thesuggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similarcases. The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfytheir deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, theobjectives of sentencing proclaimed by Parliament in s.718(a), (

b) and (

c) of the Criminal Code, commonly referred to as denunciation,general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognizedobjectives of sentencing. We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once ourmost valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselvesagainst predators like the appellant and as such, they make easy prey.

People like the appellant know this only too well and they exploitit to achieve their selfish ends, heedless of the dire consequences that can and often do follow. In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little wasknown about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longerholds sway. The horrific consequences of child sexual abuse are only too well known. [37] In Regina v. R.E.M., Mr.

Justice Romilly of the Supreme Court of British Columbia noted at paragraph 32: It is my view that a clear message must be sent to every person in a position of trust in relation to a child that sexual contact with themwill not be tolerated in this society and that it will result in lengthy periods of imprisonment being imposed. I note that in R. v. Stone(1999), (SCC), 134 CCC (3d) 353 the Supreme Court of Canada, at para. 239, considered the objectives of thesentencing process and stated: It is incumbent on the judiciary to bring the law into harmony with prevailing social values.

This is also true with regard to sentencing.To this end, in M.(C.A.), supra, Lamer, C.J. stated, at para. 81: The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender'sconduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct shouldbe punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. ... Our criminal law isalso a system of values.

A sentence which expresses denunciation is simply the means by which these values are communicated. Inshort, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a mannerwhich positively instils the basic set of communal values shared by all Canadians as expressed by the Criminal Code. [38] In Regina v. R.S.H., Madam Justice Wedge invoked the principle of retribution in a sentencing respecting sexual assault of achild. In her decision, she quoted more extensively from the comments of Chief Justice Lamer referred to by Mr.

Justice Romilly as Ihave indicated. She said at paragraph 46: The Court of Appeal in J.A.F. also emphasized the weight that must be given to the principles of deterrence and denunciation where theoffence involves a breach of trust. Also important, said Hall J.A. at para. 19, is the oft-forgotten role of retribution:

In the course of giving reasons for judgment in a relatively recent case in this Court Madam Justice Ryan made some comments that Ithink are worth repeating. I refer to the case of R. v. Johnson (1996), (BC CA), 84 BCAC 261 at p. 268: In analyzing the place that retribution has in the sentencing process, the court compared it to the concept of denunciation. The ChiefJustice said this (at pp. 558-559): Retribution requires that a judicial sentence properly reflect the moral blameworthiness of that particular offender.

Then there is a continuation into the quote that I have already read. [39] Madam Justice Wedge also said at paragraph 60: Both specific and general deterrence are primary considerations in these circumstances, as is denunciation. Time and again our courtshave said that deterrence and denunciation must weigh heavily in cases involving sexual offences against children. They are the mostvulnerable among us. They rely entirely upon adults, and particularly the adults they know and love, to keep them safe.

As noted by theOntario Court of Appeal, there is no longer any debate as to the horrific consequences of the sexual abuse of young children. Childrenare our most valuable resource, and our criminal justice system must reflect that fact in the sentences imposed for crimes committedagainst them. As said by Lord Justice Lawton in R. v. Sargeant (1974), 60 Cr.App.

R.74, at p. 77 “Society, through the courts, mustshow its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass”. [40] Relevant to the decision respecting the appropriate sentence here are the following sections of the Code: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall giveprimary consideration to the objectives of denunciation and deterrence of such conduct. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to theoffence or the offender, and, without limiting the generality of the foregoing, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders,with particular attention to the circumstances of aboriginal offenders. [41] In Regina v.

G.R.H., Judge Ball of the Provincial Court reviewed the factors to be considered in determining the appropriatesentence in cases involving charges of sexual assault as follows at paragraph 18: ... the nature and intrinsic gravity of the offences; the frequency of the offences, and the time period over which they were committed;the abuse of trust and abuse of authority which are involved in the relationship between the accused and the victim; the disordersunderlying the commission of the offence, including the offender's psychological difficulties and the like; the offender's record of prioroffences, if any; and the offender's behaviour after the commission of the offences, including co-operative contrite actions andcompassion and empathy for the victim; the time between the commission of the offences and the guilty verdict as a mitigating factor;the victim, the gravity of the attack on the physical and psychological integrity of the victim reflected in the age, nature of assault, thefrequency and duration of the assault, the character of the victim and the vulnerability of the victim. [42] Taking into account the circumstances of the offence and the circumstances of the offender and guided by the law that I havereviewed, both statutory and common law, I am satisfied that a sentence of incarceration is necessary here.

I am not satisfied that asentence of 12 months is appropriate. I am satisfied that the imposition of a Conditional Sentence Order would not adequately addressthe principles of denunciation and deterrence, which principles must be given "primary consideration" as set out in s. 718.01 of the Code.

[ 43 ] During submissions on January the 30th, 2012, a question arose with respect to the availability of a Conditional Sentence for the offence of sexual assault. Counsel both took the position that such a sentence is available where the Crown has proceeded summarily, in spite of what seemed to me to be the plain wording of s. 752 of the Code . That

section reads: “ serious personal injury offence” means (

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, or (

b) an offence or attempt to commit an offence mentioned in

section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). [ 44 ] The definition of "serious personal injury offence" clearly includes offences of sexual assault where the Crown has proceeded summarily. However, the precise language of s. 742.1 leaves open the question of whether the Crown's decision as to how to proceed determines the availability of a Conditional Sentence. That

section reads: If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s compliance with the conditions imposed under

section 742.3. ( emphasis added) [ 45 ] The position of both counsel is that the clause "prosecuted by way of indictment" must modify all of: "a serious personal injury offence" and "a terrorism offence or a criminal organization offence for which the maximum term of imprisonment is 10 years or more". Counsel referred to the case of Regina v. Thompson , 2010 ONCJ 399 .

The entire decision of the court respecting this issue is at paragraph 20: The Crown’s position is that in s. 742.1, the phrase “prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more” modifies the words “a criminal organization offence“, and does not apply to the words “other than a serious personal injury offence as defined in s. 752”. Thus, the

section should, according to the Crown, be read as follows: If a person is convicted of an offence other than: (

a) A serious personal injury offence as defined by s. 752; (

b) A terrorism offence; (

c) A criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more; (

d) An offence punishable by a minimum term of imprisonment ... a conditional sentence may be imposed. In my view, this

interpretation is incorrect. A review of the sections of the Code which define criminal organization offences ( ss 467.1- 467.2) reveals that all of these offences must be prosecuted by way of indictment. There is no option to prosecute any of them by way of

summary conviction. To restrict the application in s. 742.1 of the words “prosecuted by way of indictment” to criminal organization offences alone would be nonsensical. To give meaningful effect to the wording of the

section requires that the words “prosecuted by way of indictment” be read to modify all of the offences that precede those words, including the offence of sexual assault. [ 46 ] With respect to statutory

interpretation, Mr. Justice Iacobucci said this at paragraph 26 in the case of Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42 : In Elmer Driedger’s definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983): Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Driedger’s modern approach has been repeatedly cited by this Court as the preferred approach to statutory

interpretation across a wide range of interpretive settings. [ 47 ] With respect, I do not agree with the conclusion reached by Justice Maresca in Thompson . In my view, because of the placement of the commas and the separating words in s. 742, that is, the plain grammatical sense of that section, and considering the

section in the context of the entire Criminal Code , the excluded category of offences are: - a serious personal injury offence as defined in s. 752 (which clearly includes the offence of sexual assault regardless of the manner in which the Crown proceeds); or

- a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is 10 years or more or - an offence punishable by a minimum term of imprisonment. [ 48 ] The other case referred to by counsel respecting this issue was Regina v. Eggett , 2010 ONCJ 513 , in which the court considered the availability of a Conditional Sentence where the Crown proceeded summarily respecting a charge of assault with a weapon. The answer to that question is clear, in my view, because of the very clear language in s. 752(

a) which refers only to where the Crown has proceeded by way of indictment. The situation is quite different for offences such as sexual assault which are listed in s. 752(b). [ 49 ] The sentence proposed by counsel in the case at bar is neither available nor appropriate. [ 50 ] I have already indicated that I have concluded that a sentence of incarceration is necessary. The accused sexually assaulted a seven-year-old child who had been left in his care by her mother. He was in a position of authority over her.

He was in a position of trust with respect to the child, although not equivalent to the position of trust of a parent, for example. The child and her mother have experienced psychological pain as a result of the accused's actions. [ 51 ] A plea of guilty was entered by the accused with respect to this charge, but not until 15 months after the events and a year after the Information was sworn. The accused has no criminal record. He apparently has some insight in the effect of his actions. [ 52 ] You should stand now, please, Mr.

Nguyen, so that I can formally pass sentence. [ 53 ] In my view, the appropriate sentence here is that you be incarcerated for a period of three months. [ 54 ] In addition, Mr. Nguyen will be placed on probation for a period of three years. The statutory conditions will apply and I will add the following: He will report within 72 hours of his release from custody to the probation office at 275 East Cordova Street, Vancouver, B.C., and thereafter as directed. He will take counselling as directed by his probation officer. He will have no contact directly or indirectly with PMN nor with NDN.

He will not enter the 4200 block of Beatrice Street, Vancouver, B.C. Except in a public place, he will not be in the presence of a female person under the age of 16 years unless he is also in the presence of another person over the age of 21 years. He will not allow any female person under the age of 16 years to enter his residence unless she is accompanied by a parent or guardian. He will possess no weapons. [ 55 ] The Order will be prepared in writing. It will be read and explained to Mr. Nguyen and a copy will be given to him.

I delegate to the clerk of the court the other responsibilities I have under the Criminal Code . [ 56 ] There will be no surcharge with respect to this matter. [ 57 ] Pursuant to s. 487.051(1) of the Criminal Code , I will make an order that Mr. Nguyen provide a sample of his DNA to be lodged in the national databank. [ 58 ] Pursuant to s. 490.012(1) of the Criminal Code , I will make an order that he comply with the requirements of the Sex Offender Information Registration Act for a period of 10 years. [ 59 ] Ms. Turnbull, you want to stay the other counts on the Information, do you? [ 60 ] MS.

TURNBULL: Yes, please. [ 61 ] THE COURT: Thank you. [REASONS FOR SENTENCE CONCLUDED]