R. v. Dang, 2010 ONCJ 594

COURT FILE No.: Brampton 09-12775 DATE: 08 December 2010 Citation: R. v. Dang , 2010 ONCJ 594 ONTARIO COURT OF JUSTICE Central West Region BETWEEN: HER MAJESTY THE QUEEN — AND — MINH-PHUNG DANG Before Justice Richard H.K. Schwarzl Reasons for Sentence released on December 8, 2010 Mr. Martin Kerbel, Q.C.............................................................................. for Minh-Phung Dang Ms. Cindy Nadler...................................................................................................... for the Crown SCHWARZL, J.: 1.0: INTRODUCTION [ 1 .] Mr. Minh-Phung Dang pled guilty before me to two offences of domestic violence, namely

(1) Forcible Confinement of his girlfriend Ms. Hien Thi Nguyen contrary to section 279(2) of the Criminal Code and

(2) Assaulting Ms. Nguyen with a meat cleaver contrary to

section 267 (

a) of the Criminal Code . The Crown elected to proceed by indictment on each count. [ 2 .] Since the date of his pleas in March, 2010 Mr. Dang’s case has been adjourned on number of occasions for a variety of reasons including the preparation of a pre-sentence report, illness of defence counsel, conflicts with my

schedule and due to concerns raised by me with counsel regarding the sentence being suggested. Both parties had submitted that in the circumstances of this offence and this offender that a custodial sentence within the intermittent range followed by probation is appropriate and I was troubled by this range. 2.0: FACTS [ 3 .] In November, 2009 Mr. Dang and Ms. Nguyen were in an intimate relationship with one another. On the 6 th of November, 2009 the two had been out together at a social gathering. They argued over aspects of their relationship. They left the gathering and while Mr. Dang was driving Ms.

Nguyen’s car, they argued some more. When the car stopped on the way home, Ms. Nguyen got out and began walking away. Mr. Dang grabbed her by the arms, forcing her back into the car. He then threatened to lay Ms. Nguyen in front of the car and run her over. Mr. Dang then sped away with Ms. Nguyen and drove erratically in a residential area for a quarter of an hour. He drove nearly 100 in a posted 50 km/hr zone, veered into on-coming traffic, and drove through a red light. The roads were slippery and the weather was poor at the time. While going through the red light, Mr. Dang told Ms.

Nguyen that he did not care if they both died. [ 4 .] On arriving at Ms. Nguyen’s apartment, Mr. Dang took a meat cleaver, held it against Ms. Nguyen’s throat, and threatened to kill her with it. No evidence was given as to the duration of the assault in the victim’s home. Ms. Nguyen was able to calm the offender down, get loose, and call the police. [ 5 .] Six days following his arrest, Mr. Dang was released on a Recognizance of Bail.

3.0: POSTIONS OF THE PARTIES AS TO SENTENCE 3.1: Minh-Phung Dang [ 6 .] Mr. Dang is 48 years old and comes before the court as a first-time offender. He has pled guilty prior to setting a trial date. He is employed full-time as a cook in a local pizzeria. Mr. Dang has accepted responsibility for his conduct and is amenable to rehabilitation as part of his sentence. The pre-sentence report is generally positive. [ 7 .] The offender submits that in these circumstances, he should be sentenced to 60 days common jail to be served intermittently.

He submits that pre-trial custody with enhanced credit at a ratio of 2:1, or twelve days, be deducted from the term of imprisonment for a final sentence of 48 days intermittent. [ 8 .] Mr. Kerbel advised the court that he believed the victim may not be willing to testify should the matter have been set down for trial. In support of this, he pointed out that Ms. Nguyen declined to provide a Victim Impact Statement. [ 9 .] The defence also submits that there is a joint submission before the court insofar as both parties agree that the sentence should a period of intermittent jail. [ 10 .] Mr.

Dang submits that the proposed sentence is fit for the following reasons:

a) Mr. Dang pled guilty;

b) He pled guilty before trial;

c) There was a triable issue as to whether Ms. Nguyen would show up to testify if a trial was set;

d) There were no physical injuries to the Victim;

e) The pre-sentence report is generally favourable;

f) An intermittent sentence is onerous because it spreads out the service of the sentence over a longer period of time;

g) If probation is added, then that should decrease the custodial portion of any sentence;

h) Mr. Dang can maintain his employment; and

i) The sentence is one involving incarceration for a first-time offender. 3.2: The Crown [ 11 .] The Crown submits that Mr. Dang should be sentenced to 90 days intermittent minus time served on an enhanced credit of 2:1, or twelve days. The Crown also asks that following the service of his custodial sentence, Mr. Dang be placed on probation for 18 months.

The Crown seeks a DNA Order and a s.109 Firearms Prohibition, both of which are mandatory given the nature of the offences. [ 12 .] The Crown disagrees that there is a joint submission because they are seeking 50% more jail time than the offender (90 versus 60 days). [ 13 .] The Crown does, however, agree with Mr. Dang that a sentence in the intermittent range is appropriate.

[ 14 .] With respect to mitigating aspects of the case, the Crown submits that the following weigh in favour of Mr. Dang:

a) He pled guilty;

b) He pled guilty before setting a trial;

c) The pre-sentence report is generally positive in that the offender was cooperative and remorseful; and

d) Significant probation balances off the modest jail time being proposed. [ 15 .] The Crown did not agree that Ms. Nguyen would not respond to a subpoena if the matter were set for trial, but Ms. Nadler acknowledged that Ms. Nguyen was difficult to track down to provide a Victim Impact Statement. When Ms. Nguyen was finally contacted, she declined to provide a Victim Impact Statement, saying only that she wants to forget about the situation. It should be noted, however, that Ms. Nguyen cooperated with Ms.

Laura Giacomelli, the probation officer who prepared the pre-sentence report. [ 16 .] In the pre-sentence report, Ms. Nguyen stated that she is fearful of Mr. Dang, especially since he tried to contact her despite his bail that prohibited such contact. She did not call the police to report these breaches. 4.0: ISSUES 4.1: Is this a joint submission? [ 17 .] This is not a case where a joint submission has been put before the court. Mr. Kerbel recommended 60 days, less time served. Later, in explaining why this was an appropriate sentence, he added that custody can be ameliorated by probation.

The Crown recommended 90 days (less time served) plus lengthy probation. [ 18 .] In R. v. Christie (2004), 2004 ABCA 287 (CanLII) , 189 C.C.C. (3d) 274 the Alberta Court of Appeal defined a joint submission at paragraph 45 as follows: A joint submission reflects a process where both counsel advocate the same disposition for the sentencing of an offender. [ 19 .] It is plain that this case is not a situation in which a joint submission is being presented because each side is asking for different periods of custody.

Initially, the defence was not recommending probation whilst the Crown has always made probation a part of its submissions. [ 20 .] While the submissions of each party bear some similarity to one another in that they each recommend a custodial period in the intermittent range, it would be wrong to characterize the positions as being a “joint submission.” 4.2: What is the appropriate sentence in this case? [ 21 .] Both parties submit that a jail sentence in the intermittent range is appropriate for the reasons set out, above. [ 22 .] Two points, both which I agree with, are implicit by these submissions.

The first is that in all of the circumstances, including those of both the offence and the offender, a custodial sentence is required. The second is that a conditional sentence is not appropriate, because the overarching principles of denunciation and deterrence could not be met by a conditional sentence. [ 23 .] Appellate courts have long recognized that the principles of deterrence and denunciation are of paramount importance in determining the appropriate sentence for crimes of domestic violence: R. v. Inwood , 1989 CanLII 263 (ON CA) , [1989] O.J. No. 428 (C.A.); R. v.

Edwards (1996), 1996 CanLII 1522 (ON CA) , 28 O.R. (3d) 54 (C.A.); R. v. Campbell , 2003 CanLII 48403 (ON CA) , [2003] O.J. No. 1352 (C.A.); R. v. Boucher (2004), 2004 CanLII 17719 (ON CA) , 186 C.C.C. (3d) 479 (Ont. C.A.); R. v. Bytyqi , 2004 CanLII 14964 (ON CA) , [2004] O.J. No. 1938 (C.A.); Regina v. Rahaman , 2008 ONCA 1 (CanLII) , [2008] O.J.

No. 1 (C.A.). [ 24 .] In addition to the views of appellate courts , Parliament has recognized domestic abuse as an aggravating factor on sentence through s. 718.2 (a)(ii) of the Criminal Code . [ 25 .] In Boucher , above, the Ontario Court of Appeal further held at paragraph 23 and 24 that …in the context of an attempted murder, the absence of physical injuries is a function of chance and does not necessarily justify a significant reduction in the range of sentence that is otherwise appropriate . As noted by Lamer C.J. in R. v. Logan, 1990 CanLII 84

(SCC) , [1990] 2 S.C.R. 731, "[T]he attempted murderer is no less a killer than a murderer: he may be lucky ... but he still has the same killer instinct." The Chief Justice also remarked that, "while a conviction for attempted murder does not automatically result in a life sentence, the offence is punishable by life and the usual penalty is very severe"….

Further, where an attempted murder is committed in the context of a domestic relationship, the likelihood of lasting psychological trauma to the victim arising from the irrational and obsessive nature of the misconduct is significant and, where present, justifies the imposition of a substantial penalty separate and apart from the issue of protection. (emphasis added) [ 26 .] Although Boucher was an attempted murder case, the principles referred to apply equally to all domestic violence cases: R. v. Kopriva , 2008 ONCA 54 (CanLII) , [2008] O.J.

No. 233 (C.A.) [ 27 .] I have reviewed the cases provided by counsel including R. v. Benjamin , [2008] O.J. No. 3330 (C.A.) and R. v. Rahaman , 2008 ONCA 1 (CanLII) , [2008] O.J. No. 1 (C.A.). I have also considered the following cases on the topic of sentencing in domestic violence cases: R. v. Markotic , [2007] O.J. No. 860 (O.C.J.) ; R. v. Rooplall , [2008] O.J. No. 3514 ; R. v. Murray , [2008] O.J. No. 5473 (O.C.J.) ; R. v. Harding , [2009] O.J. No. 682 (S.C.J.) ; R. v. Harry , [2009] O.J. No. 5765 (O.C.J.) ; R. v. Meade , [2010] O.J. No. 319 (O.C.J.) ; R. v. M.I. , [2010] O.J. No. 556 (O.C.J.) ; R. v.

Galapate , [2010] O.J. No. 4917 (O.C.J.) . There are many, many other cases to which reference may be made. All the cases stand for the need of courts to balance all the relevant principles of sentencing on a case by case basis. [ 28 .] In this case, the facts are extremely serious. They involve out of control behaviour by the offender who (

a) would not let the victim escape the car when she had the chance; (

b) threatened to run her over; (

c) drove recklessly in a rage while expressing that he didn’t care if they both died; and (

d) held a meat cleaver to the victim’s throat and made more threats to kill her. [ 29 .] Mr. Dang persistently terrorized Ms. Nguyen for a significant period of time both within a motor vehicle and within her own home. She was brutally attacked both psychologically and physically. While these offences appear to be spontaneous and unplanned, the potential of imminent death or grievous bodily harm was real and palpable on these facts. It is unclear whether it was fate, luck or something else that stayed Mr. Dang’s hand. Ms.

Nguyen is fortunate not to have been wounded or worse. [ 30 .] There is no Victim Impact Statement. However, one need only apply common sense to appreciate that what Ms. Nguyen experienced was harrowing and literally life-threatening. Ms. Nguyen has expressed through the pre-sentence report that she continues to fear Mr. Dang. [ 31 .] Following the submissions made by counsel, I expressed my concern about the propriety of a sentence that involved custody limited to the intermittent range and invited further submissions on this concern.

Both counsel accepted this invitation and made further submissions, both orally and in writing, to support their sentencing positions. Those submissions have not allayed my concerns given the entire circumstances of these offences and this offender. [ 32 .] Since this is not a case involving a joint submission, I am not bound by either the lower or upper limits of the submissions put forward by both counsel.

In determining the appropriate sentence in this case, I take into account all of the relevant sentencing principles as well as the presence of both mitigating and aggravating factors. [ 33 .] The mitigating factors in this case include:

a) Pleas of guilty prior to setting of a trial date;

b) A generally favourable pre-sentence report;

c) Willingness to participate in court-ordered rehabilitation;

d) Mr. Dang is a first-time offender; and

e) Mr. Dang is employed full-time as a cook. [ 34 .] The aggravating factors include:

a) Diminution of his acceptance of remorse as indicated at page 5 of the pre-sentence report wherein the offender “tended to shift the blame onto the victim” by alleging provocation;

b) Very serious facts involving the expression of rage and terror over a significant period of time;

c) Significant threats of death;

d) The application of a meat cleaver to the neck of the victim. Although no physical injury was inflicted, such a utensil - by its design - is intended to hack through flesh and bone;

e) The offences were committed in the context of an intimate relationship; and

f) The victim has expressed ongoing fear of the offender. [ 35 .] Balancing the mitigating and aggravating factors against the circumstances of the offence, the circumstances of the offender and both the common law and statutory principles of sentencing, I find that a sentence in the intermittent range does not adequately address the gravity of the offences, the role of Mr. Dang in committing those offences, nor the need to deter and denounce such heinous

behaviour. [ 36 .] In my view, the desire to permit Mr. Dang to continue working must be trumped by society’s need to be protected from such crimes being committed, and to hold him suitably accountable for his actions. A sentence in the intermittent range, in these particular circumstances, trivializes the gravity of the offences and Mr. Dang’s role in them notwithstanding his expressions of remorse and willingness to participate in rehabilitation.

Each one of these crimes is punishable by a maximum of ten years. [ 37 .] In the case before me, I find that a fit global range of sentence is between six and ten months followed by probation. Giving maximum credit to Mr. Dang for his guilty pleas and their timing, the sentence on Count #1 (Forcible Confinement) and concurrent on Count #4 (Assault with a Weapon) is as follows:

a) In addition to pre-trial custody credit of 12 days, 5 ½ months common jail;

b) Following the custodial portion of the sentence, probation for two years upon conditions I will outline after completing these Reasons for Sentence;

c) In-Custody Primary DNA Order; and

d) S.109 Firearms Prohibition. Released: Wednesday, December 8, 2010 _____________________________________ Richard H.K. Schwarzl, Justice of the Ontario Court of Justice