R. v. Truong Date:, 2017 BCPC 68

Citation: R. v. Truong Date: 20170303 2017 BCPC 68 File No: 243910-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Division) REGINA v. VU NGOC TRUONG ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P.L. DOHERTY Counsel for the Crown: S. Hulko Counsel for the Defendant: T.L. Robertson, QC L.E. Miller, Articled Student Place of Hearing: Vancouver , B.C.

Date of Hearing: March 3, 2017 Date of Judgment: March 3, 2017 INTRODUCTION [ 1 ] THE COURT: These are my reasons for sentence with respect to Vu Ngoc Truong. Vu Ngoc Truong is a physician in the Province of British Columbia and I am sentencing him following his plea of guilty to a charge of fraud over $5,000. Dr. Truong is a certified specialist in urology.

He has pled guilty to a charge that involves defrauding the Medical Services Commission of approximately $20,000, primarily by billing enhanced fees for laser surgical procedures not performed when an alternate procedure at a lower rate was actually performed. BACKGROUND [ 2 ] The period during which the inappropriate billings occurred was from April 9, 2008, to April 30, 2012. The procedure which is part of Dr. Truong's sub-speciality as a urology surgeon involves the treatment of benign enlarged prostate conditions, bladder and prostate cancer. There are two laser procedures used for this condition.

The first is called the green light laser, which was the procedure used by Dr. Truong. The second is the holmium laser, which Dr. Truong billed for with respect to the matters before me. The amount involved is the difference between these two billing procedures forms the majority of the amount involved in the fraud. [ 3 ] The remaining part of the fraud involves an instance of nine procedures that he billed for which he did not perform in respect to another area. It should be noted that although Dr.

Truong fraudulently billed for the enhanced procedure, all of his patients' hospital records, consult reports, and all other documentation were accurately documented as to the procedure that was actually performed. [ 4 ] The way this offence was discovered is that the Medical Services Plan audits physicians on a random basis. They look at potential abnormalities in billings and Dr. Truong was focused on at one point and some irregularities, five to be exact, were found with respect to his billings.

An audit was performed in August 2011 by another urologist and it was discovered that approximately $16,000 in fees were improperly billed for the enhanced laser procedure. There were approximately 35 instances and this occurred in 2011/2012. The other nine procedures I have referred to total approximately $3,700. [ 5 ] It should be noted that Dr. Truong was entirely cooperative with the audit department and at the earliest opportunity he fully reimbursed the Medical Services Plan with the money that he improperly billed for. [ 6 ] There was a further audit of his practice which disclosed no irregularities.

He paid the expense of both audits to be performed. POSITION OF THE PARTIES [ 7 ] Ms. Hulko, on behalf of the Provincial Crown, correctly points out that this case is one that involves a breach of trust case. There is no doubt that a trust relationship exists between the Medical Services Commission and physicians that bill for their services. She correctly points out that general deterrence and denunciation are the primary sentencing factors I should consider when such a breach of trust case is before me.

She points out s. 718.2(a)(iii) of the Code , which makes breach of trust a statutorily aggravating feature, and that provision is further supplemented by s. 380.1(1)(d), (

e) of the Code . [ 8 ] She submits that a jail sentence is appropriate. She is not opposed that the sentence be served as a conditional sentence. She is seeking a sentence of 18 months to two years less a day in jail. She points out to me that it is not a usual procedure that physicians caught over-billing are criminally prosecuted. This is a new approach taken by the Commission and she submits, quite fairly, that a conditional sentence will meet the principles of deterrence and denunciation, given the new approach taken with respect to this criminal prosecution. [ 9 ] On behalf of Dr. Truong, Mr.

Robertson points out that since this offence occurred, that his client has attended over 70 sessions with a psychologist to try and understand why he did such a thing. BACKGROUND OF DR. TRUONG [ 10 ] He points out to his client's background. His client's background is a familiar story of how individuals from other countries come to Canada and become exceptional citizens through very hard work. His client came with his parents as refugees from Vietnam in 1975. His father was a dishwasher. The family lived in a studio apartment where his brother was born. His mother worked as a housekeeper at St.

Paul's Hospital. [ 11 ] Dr. Truong went to Kitsilano High School. Not surprisingly, he was a high academic achiever. He graduated with a bachelor's of science at UBC. He received first class honours. He attended medical school, achieved his medical degree, and then studied a further five years for a specialty in urology. In addition he has completed a one-year fellowship in laser surgery. He is one of four physicians in British Columbia so qualified in his particular field. [ 12 ] The letters he has filed in support testify to the fact that he is a preeminent physician in his field.

He volunteers his time and teaches medical students. [ 13 ] He is 43, married with three children. Certainly any sentence I impose that involves a conditional sentence order will result in a hardship to his spouse and his children. ANALYSIS [ 14 ] Mr. Robertson points out that the sole aggravating feature here is the breach of trust and he correctly points out, and Ms. Hulko

does not disagree with him, the many mitigating factors that are present here in this case. Dr. Truong is of otherwise good character. He has no criminal history. He came from a disadvantaged background. He has taken responsibility for his offending behaviour by paying back the monies immediately, by pleading guilty, and by attending counselling to gain some understanding into his offending behaviour.

He has showed to me a profound sense of remorse and shame by his demeanour and by his letter to me. [ 15 ] It has been explained to me that the College of Physicians and Surgeons have held their disciplinary proceedings against him in abeyance. They wish to see what unfolds in the criminal proceedings. I am told that he could face a reprimand, financial penalty; he could also face a suspension from practice, either temporarily or permanently. [ 16 ] As far as the law in relation to this matter, I do take into account the general sentencing provisions of the Code .

The general principles of sentencing are set out in ss. 718 , 718.1 , and 718.2 of the Criminal Code .

Section 718 defines the fundamental purpose of sentencing and that is to impose a just sanction that has as its objectives denunciation, specific and general deterrence, the protection of society, rehabilitation, reparations for the harm done, and the promotion of a sense of responsibility in the offender.

Section 718.1 requires that a sentence be proportionate to the seriousness of the offence and the moral culpability of the offender. [ 17 ]

Section 718.2(

a) requires the court to consider both aggravating and mitigating factors when determining an appropriate sentence for the particular offence and the offender before the court. [ 18 ] 718.2(a)(iii) dictates that evidence that the offender in committing the offence abused a position of trust or authority in relation to the victim be considered an aggravating factor. [ 19 ] I also note the principles of 718.2(

d) that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders. [ 20 ] As far as imposing conditional sentences, when the court determines a jail sentence is appropriate, I am guided by s. 742.1 of the Code . I do note that counsel are in agreement that a conditional sentence is the appropriate sentence here. The only issue is how long it should be. [ 21 ] I also am reminded by Ms. Hulko of s. 380.1(1)(

d) and (

e) of the Code when considering fraud matters which involve a breach of trust. [ 22 ] I have been cited a number of authorities by both counsel. The case authorities speak of deterrence and denunciation as primary considerations in sentencing individuals for frauds in relation to breach of trust. Ms. Hulko correctly points out that Dr. Truong operates in a system based on trust. The Medical Services Plan cannot audit or check every physician's account. It is relatively easy for some physicians, if they want to, to overbill for services and not get caught.

I must be mindful that the sentence I impose takes this into account. [ 23 ] Both counsel do not disagree that a jail sentence must be imposed. [ 24 ] But having said all that, I must take into account Dr. Truong's individual circumstances. As I stated, his profound sense of remorse is very important in the sentencing proceeding; his immediate restitution of funds he took is also an important factor as is the fact that he paid for the audits of his practice.

Additionally, the exceptional efforts he made to understand his offending behaviour is an important consideration. [ 25 ] I am going to read a quote from his treating psychologist, Dr. Wiedeman. She states: As described above, his remorse is genuine. His willingness to examine himself in psychotherapy has been authentic. He has already experienced severe consequences of the extra-billing. Psychologists are inclined "never to say never" in predictive comments, but in my opinion the risk of a future offense of deliberate extra-billing is extremely low.

In fact, I cannot realistically imagine it happening . . . [ 26 ] I also take into account the effect on Dr. Truong of just having a criminal record. I take into account the effect the sentence will have on his family. [ 27 ] I also note that there are potential further disciplinary actions by the College of Physicians and Surgeons. They may fine Dr. Truong, they may suspend him, they may even take away his licence to practice permanently. I sincerely hope the College takes into account the fact that Dr.

Truong has gone through a very public criminal process and has shown great remorse and shame for his actions. [ 28 ] I hope the College takes into account the very important role he has as a preeminent physician in his field, and that by suspending him would only not just penalize him, but perhaps many British Columbians who would be deprived of his capable treatment. [ 29 ] So in the circumstances, the sentence will be a conditional sentence order of nine months. The statutory terms pursuant to s. 742.3(1) are imposed. [ 30 ] There will be some optional additional conditions I am imposing.

So for the first three months of your conditional sentence, Dr. Truong, you must be confined to your residence with the exception of travelling to and from and being engaged in your medical practice. [ 31 ] You may also leave your residence to attend a physician's appointment or a psychologist's appointment for medical and counselling sessions. You may also leave your residence for medical emergencies. [ 32 ] This permission includes travelling to and from meetings with your conditional sentence supervisor.

[ 33 ] You may, during the first three months of your conditional sentence, be allowed out of your residence between the hours of 9:00 a.m. and 2:00 p.m. for personal errands such as banking, shopping, and personal business appointments. [ 34 ] For the next three months of your conditional sentence order, you shall obey a curfew.

You must be at your residence from 11 p.m. until 6 a.m. the following morning, seven days a week. [ 35 ] You must present yourself at the door of your residence if requested to do so by a conditional sentence supervisor or a peace officer to ensure compliance with the curfew and your house arrest conditions. [ 36 ] During the duration of this conditional sentence order, you are to abstain absolutely from the consumption of alcohol, all non-prescription medication, and all other intoxicants. [ 37 ] You are to perform -- was it 80 hours? [ 38 ] MS.

HULKO: Yes, Your Honour. [ 39 ] THE COURT: Eighty hours of community work service at the direction of and to the satisfaction of your conditional sentence supervisor on or before October 20, 2017. [ 40 ] You are to pay the victim fine surcharge on or before March 24, 2017. [ 41 ] Is there anything else? [ 42 ] MS. HULKO: Your Honour, if I could ask, the Condition 1, the house arrest portion, Your Honour included permission to be outside the residence from 9:00 a.m. to 2:00 p.m. for personal errands. Was that on a specific day of the week? [ 43 ] THE COURT: Oh, I meant to say Saturday. [ 44 ] MS.

HULKO: Saturday. [ 45 ] THE COURT: On Saturdays. [ 46 ] MS. HULKO: And as well, the following three months with the curfew, is Your Honour intending there to be the same exceptions for medical emergencies and for work? [ 47 ] THE COURT: Yes. [ 48 ] MS. HULKO: Dr. Truong is on call and might need to be out -- [ 49 ] THE COURT: Right. [ 50 ] MS.

HULKO: -- during the curfew period. [ 51 ] THE COURT: Right, good point, thank you for that. [ 52 ] So Madam Clerk, on the second aspect of the conditional sentence, the curfew, he is allowed outside his residence for the purposes of travelling to and from and being engaged in his medical practice or for hospital medical emergencies. Does that -- [ 53 ] MS. HULKO: I believe that will cover it, Your Honour. [ 54 ] THE COURT: All right. [ 55 ] MS. HULKO: And if I could add two very minor -- [ 56 ] THE COURT: That is fine. [ 57 ] MS. HULKO: -- factual corrections. [ 58 ] THE COURT: Okay. [ 59 ] MS.

HULKO: With respect to the nine procedures billed, it was nine patients and 18 procedures. [ 60 ] THE COURT: Thank you. [ 61 ] MS. HULKO: Nothing turns on it. As well, the date of the audit was October of 2012. [ 62 ] THE COURT: All right, thank you for that. [ 63 ] MR. ROBERTSON: I have nothing to add, Your Honour. [ 64 ] THE COURT: All right. Well, good luck to you, Dr. Truong. [ 65 ] MS. HULKO: Your Honour, if I could add, as well, this is a secondary designated offence with respect to DNA samples. The Crown has no submissions on that. [ 66 ] THE COURT: All right, I am not making a DNA order.

[ 67 ] MR. ROBERTSON: Thank you, Your Honour. [ 68 ] THE COURT: Thank you. (REASONS CONCLUDED)