R. v. Vu, 2015 ONCJ 432

COURT FILE No.: Toronto DATE: 2015.08.07 Citation: R. v. Vu , 2015 ONCJ 432 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — HOANG VU Before Justice Fergus ODonnell Heard on 27 May and 23 July, 2015 Written reasons for judgment released on 7 August, 2015 Mr. B. Stagg........................................................................................................... for the Crown Mr. M. Leitold.................................................................................................. for the defendant, Fergus ODonnell, J.: 1 .

Hoang Vu has pleaded guilty to a single count of assault with a weapon, upon which the Crown proceeded by indictment. The Crown, through Mr. Stagg, seeks a sentence of fifteen months' imprisonment; on Mr. Vu's behalf, Mr. Leitold asks for a sentence under six months' imprisonment. As Mr. Vu is a permanent resident, a sentence of six months or longer would deprive him of the right to appeal his inadmissibility to Canada. 2 . I was given a

summary of the facts, along with a medical imaging report about the victim's injuries and both still photos and video of the assault and the encounter leading up to it, although the camera angle is such that Mr. Vu is off-camera for most or all of the lead-in. I also received a pre-sentence report. 3 . Mr. Vu and the victim both lived in supportive housing for people with addiction issues. Mr. Vu has also suffered for some time from what he characterizes as serious depression and others consider to be schizophrenia. He has been receiving care in the community for that. Both Mr.

Vu and the victim were users of controlled substances. Although Mr. Vu had achieved prolonged periods of abstinence, he had used crack cocaine within a few hours before the offence. 4 . The offence played out as follows. In the wee hours of Christmas morning, 2014, the victim attended at Mr. Vu's apartment to discuss a drug debt he owed to Mr. Vu. The video shows the victim in a fairly long conversation with a person who is admitted to be Mr. Vu, although Mr. Vu cannot be seen in the camera image and the victim is not always fully visible.

The video does not capture sound so there is no record of the conversation. There was a third person present, a friend or acquaintance of Mr. Vu's, although his identity was not admitted. 5 . After some conversation, the video shows the victim unsuccessfully trying to close a corridor fire-door in a defensive manner, with Mr. Vu managing to come through the door nonetheless, swinging a knife and causing a puncture wound to the victim's chest. 6 . Fortunately for both the victim and Mr. Vu, while the stab wound caused significant blood loss, it penetrated only to the "subcutaneous tissue and pectoralis muscle".

The victim was given five stitches, held for observation for a few hours and released from hospital the same morning. The victim reports suffering from ongoing nightmares, flashbacks and paranoia over the fear of being attacked again. There is pain in his chest that interferes with his arm movement 7 . Mr. Vu turned forty-three years old about a month after this offence. He is a permanent resident of Canada, having arrived here from Vietnam via a camp in Indonesia as a "boat person" when he was eleven. He came along with his uncle and was followed by his younger brothers, for whom he cared upon their arrival.

He was married, with children, but that relationship fell apart due to his wife's religious beliefs and Mr. Vu has been out of contact with his children since then. He says that he would be embarrassed for them to see him in the condition he finds himself in. In addition to his drug addiction and mental health issues, Mr. Vu suffers from hepatitis C, for which he has not been receiving treatment while in custody. 8 . Mr. Vu's criminal record runs back to 1991, at which time he would have been about nineteen. By my count he has a total of eleven convictions.

His jail sentences have typically been a day or two or three in addition to perhaps a few days of pre-sentence custody. All but one of his offences was non-violent, including three thefts, a couple of simple possession of drugs charges and offences of similar low level. For his only assault conviction, twenty-one years ago, he received ten days in jail on top of two days of pre-sentence custody. There are long gaps in his criminal record, including from 1994 to 2000 (when he was convicted of impaired driving), from 2000 to 2006 and from January, 2009 to Christmas Day 2014 when he committed this offence.

9 . Mr. Vu's pre-sentence report is positive. It is comprehensive and the author has garnered insight from a variety of sources, including the victim, two of Mr. Vu's siblings, his support worker and the investigating officer. It sets out his family history and his various travails in much greater detail than I shall set out in these reasons. His drug of choice is crack, but he will use heroin or oxycontin as crutches when necessary. He has been on the methadone programme for three years. He finds it difficult to maintain prolonged periods of sobriety because all his friends are addicts.

He had asked to be moved from the building he was living in (and where the assault occurred) because he felt it was an unsuitable environment for him. 10 . Mr. Vu's caseworker has four years of experience working with Mr. Vu. In his letter, he speaks very favourably of Mr. Vu's compliance with his various treatment regimens: In my experience with Hoang he has been polite, cooperative and motivated. He was compliant with his medication and had many significant periods of abstinence. He never missed an appointment with me and took very good care of his home and pets.

Hoang is a kind, gentle and soft-spoken man who has a strong desire to be friends will all his peers often leaving him vulnerable to intimidation from other program tenants in the building. 11 . Mr. Vu is reputedly fastidious by nature and derived great comfort from the companionship of his cats, who are now lost to him as a result of his incarceration. The Crown, fairly, commented upon the fact that Mr. Vu came back out of his apartment and mopped up the victim's blood from the corridor. The Crown said this was potentially an aggravating fact, reflecting cover-up, but given both Mr.

Vu's general nature and the fact that he was entirely forthright with the police from the outset, I think that this was at best an ambiguous event and is more likely a reflection of tidiness rather than deception. 12 . Overall, the record before me clearly establishes that Mr. Vu's offence, while serious, was entirely out of character and that his prospects for rehabilitation are very favourable. 13 . Mr. Stagg and Mr. Leitold helpfully provided me with a wide range of sentencing authorities and led me through them and the principles and ranges they said were established by them.

The cases clearly establish that the range of sentence for Mr. Vu's offence (and even for more serious offences) is broad, to a large extent reflecting the various manners in which the offence can be committed, the differences in the context of the offences, the variations in the gravity of the conduct and consequences and the divergences in the individual offenders' personal background, criminal record and prospects for rehabilitation. The fact that I neither recite the cases nor all of their details in these reasons is in no way a suggestion that they were not helpful. Indeed, it is very much to the contrary.

The cases provide a very helpful landscape against which to measure Mr. Vu's situation and I do not propose to dissect each one with respect to whether this case involved alcohol, that case involved multiple knife thrusts, the next case involved a defendant on probation, that case yonder involved long planning and another case involved a person with a serious record for violence.

It is not that those comparisons are irrelevant, it is rather that the wholesale dissection in these reasons of each case serves no meaningful purpose (other than to lose the reader's attention), because sentencing is not science or the arithmetic addition and subtraction of similarities and differences. Rather, it is much more of a "steer by feel" process, aided by the guidance of the Criminal Code , and by appellate and trial judges who have trodden the path before. 14 . What the cases establish to my satisfaction is that the sentences proposed by both Mr. Stagg and Mr.

Leitold are within the general range of appropriate sentences for offences of this nature. It falls to the particular details of the offence and offender to define where within that range the sentence should fall. 15 . The Criminal Code dictates that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Here the offence is serious, although not the most serious by any stretch, and the consequences of the stab wound are less serious than chance might otherwise have allowed for. The role of chance in criminal cases is often enormous.

A stab wound one inch to either side or one inch deeper can often change the calculus massively. Here, chance favours Mr. Vu, although it does not dilute his culpability entirely by any means. Although the physical consequences to the victim were relatively modest, the ongoing trauma is unsurprising and probably fits as an aggravating factor under s. 718.2 (a)(iii.1) of the Code. In terms of the degree of responsibility, I must consider that Mr. Vu was the principal in the offence and that, while he stabbed only once, that might have been otherwise if the "third man" had not intervened.

On the other side of the equation, I must keep in mind that this offence had a context in the threatening undercurrent of the victim's attendance and his earlier desire to have dust-up with Mr. Vu. While this does not excuse Mr. Vu's conduct, it is clear, if I may borrow from Mr. Leitold, that the victim did not attend at Mr. Vu's apartment to borrow a cup of sugar. 16 . The sentence I impose must serve to deter Mr.

Vu from similar conduct, must deter others of like inclination, must denounce such resort to violent self-help as fundamentally at odds with the rule of law, must seek to develop a sense of responsibility in Mr. Vu, must allow for his rehabilitation and must allow for him to make reparations. Such reparations are not necessarily solely in relation to the immediate victim, but also to the broader society, since violence of this nature necessarily weakens the broader community's sense of safety. Reparations, such as community service, can also serve a powerful rehabilitative function.

The sentence I impose must use jail only when necessary and to the extent necessary. The various demands of sentencing must be tailored to fit the offence and the offender. 17 . The negative factors in sentencing here are the use of a knife (although the use of some kind of weapon is inherent in the offence), the injuries, both physical and emotional, and Mr. Vu's record. The Crown has suggested that the "two on one" character reflected in the presence of the unidentified "third man" is an aggravating factor, but the record is far from clear enough to draw that conclusion.

I do not know if that person's presence was planned or not. I do not know if Mr. Vu had advance warning of the victim's attendance at his apartment door in the wee hours to discuss their issues. And, in the ultimate outcome, the third man plays a role to limit the violence rather than to further it. 18 . The positive factors here include Mr. Vu's guilty plea. The value of a guilty plea can reflect one or more of a variety of considerations. First, it can be a reflection of true remorse, or it can be a reflection that a defendant has no room to manoeuvre. In this case, the Crown's case against Mr.

Vu was formidable, but I am also entirely satisfied that his remorse is genuine and not merely strategic. A man's behaviour over two decades or longer speaks volumes more than his actions in a split second or two or three or ten and it seems to me that Mr. Vu recognizes that what he did was not at all acceptable, however intimidated he may have felt. It is also clear to me that this was entirely out of character for Mr. Vu. 19 . A guilty plea also saves court resources and allows the complainant, now victim, to avoid the inconvenience and stress of coming to testify.

In this case, that saves court time and inconvenience in two courts. 20 . With respect to Mr. Vu's record, it is obviously relevant, but not tremendously so. The only conviction for any form of violence is twenty-one years ago. The rest of the record is minor and is pretty much consistent with what one might expect from a middle-

aged defendant with a long history of mental health and substance abuse issues. Those issues are themselves relevant to the sentencing decision I must make today, as are the positive pre-sentence report and other materials filed. 21 . I am satisfied that there is no need for further specific deterence of Mr. Vu personally that calls for additional incarceration. The time he has served is also sufficient to send an appropriate general deterrent and denunciatory message.

With those imperatives taken care of, the focus should be on rehabilitation and reparation and on reinforcing the sense of responsibility that I believe Mr. Vu already has in relation to the offence. These latter objectives are better fulfilled through probation and conditions than through further incarceration. 22 . As I have said, I think that the range of sentence encompasses both the Crown and defence positions, but when the sentencing is filtered through the considerations set out above, I am of the view that the appropriate range of sentence is much closer to that advocated by Mr. Leitold than the Crown's.

All things considered, I would say that a sentence of around six to eight months might be suitable here, when combined with probationary terms of sufficient length and force. 23 . The law is clear that potential immigration consequences of a sentence must not drive a judge to impose a sentence that would otherwise be unfit. The law is equally clear that where a sentence that causes immigration consequences and a sentence that does not cause those consequences are both within the appropriate range, the existence of those potential consequences is one relevant consideration for a sentencing judge.

Even then, those consequences may not dictate the lesser punishment, but it would clearly be an error in principle for a sentencing judge not to turn his or her mind to the existence of such collateral consequences in appropriate cases. 24 . In this case, Mr. Vu, despite having been in Canada for three-quarters of his life, is still a permanent resident. His conviction on this offence makes him inadmissible to Canada under the provisions of the Immigration and Refugee Protection Act . A sentence of six months' imprisonment or longer would mean that he would lose any right of appeal from that inadmissibility. 25 .

Mr. Vu left Vietnam as an eleven year old boy. After two years in an Indonesian refugee camp he arrived in Canada as a thirteen year old boy. He is now a forty-three year old man. While he has connections in both countries, it is obvious that, by at least one or two orders of magnitude, his greater connection is to Canada. At this point in his life, Vietnam is a foreign country to him. It seems to me that, even with this one serious offence and with his previous history of mostly trivial criminality, it would be odious to send Mr. Vu back to Vietnam. That is ultimately not my decision to make.

What does fall to me to decide is whether or not the sentence I impose should deprive Mr. Vu of access to a decision maker who could hear his case and might remit the consequences of his offence. Because a sentence in the six month range is within the appropriate range of sentence, it would be odious for me to deny him that opportunity. It would also clearly be an error in principle. 26 . Accordingly, one-hundred-and-twenty of Mr.

Vu's days of pre-sentence custody shall be applied to his sentence, at a rate of 1.5: 1, resulting in a total effective sentence of one-hundred-and-eighty days, or a couple of days shy of six months. In light of that pre- sentence custody, I shall suspend the passing of sentence and place Mr. Vu on probation for three years. I consider a long probation to be important in order to provide external supervision of Mr. Vu's response to his addiction and mental health issues. He is to report to probation forthwith and thereafter as required and he shall live at an address approved of by probation.

He is not to have any contact directly or indirectly with the victim and is not to be within one hundred metres of anywhere the victim lives, works, attends school or is otherwise known by him to be. Mr. Vu shall attend for assessment and counselling for substance abuse and mental health issues as directed by probation and shall sign releases to allow probation to monitor his compliance. He shall not possess any weapons. He shall perform one-hundred-and-eighty hours of community service within the first eighteen months of the probation order.

That is an important part of his reparations to society and I am of the view that Mr. Vu’s character is ideally suited to volunteer work, which he has done in the past of his own volition. I expect that work with an animal charity would be beneficial to the charity and to him. He shall also provide a sample of his DNA for inclusion in the DNA data bank and there will be a s. 109 order. Released: 7 August, 2015