)) HER MAJESTY THE QUEEN – v. –, 2010 ONSC 7251

CITATION : R. v. Truong, 2010, ONSC 7251 C OURT FILE NO.: 0499/08 DATE: 2010-12-22 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – PHUC TRUONG Accused )) )) )) )) ) ) ) ) Ryan Wilson , for the Crown David Wilson , for Phuc Truong HEARD AND RELEASED ORALLY: December 22, 2010 REASONS FOR SENTENCE M.A. Code J. A. Overview [ 1 ] The accused Phuc Truong was found guilty of three counts relating to the possession of a 357 Magnum revolver, after a five day trial by judge alone.

The three counts charge possession of the revolver as separate offences contrary to s. 91(2) of the Criminal Code , s. 95(1) and s. 91(1) . [ 2 ] The gravamen of the offence under s. 91(1) is the failure to have a license to possess and the failure to register any firearm. It carries a maximum sentence of five years imprisonment on indictment. [ 3 ] The gravamen of the offence under s. 91(2) is the failure to have a license to possess in relation to a restricted weapon, like the revolver.

It also carries a maximum sentence of five years imprisonment on indictment. [ 4 ] The gravamen of the offence under s. 95(1) is the possession of a “loaded” restricted firearm without a license and registration certificate. It is subject to a maximum sentence of ten years imprisonment on indictment. At the time of the present offence in January, 2008, it was subject to a mandatory minimum sentence of one year imprisonment on indictment for a first offence. It is now subject to a three year minimum. [ 5 ] There was no issue in this case that the 357 Magnum revolver was not registered, that Mr.

Truong did not have a license to possess it, that it was loaded with six rounds of ammunition and that it was obviously a restricted weapon. The only issue at trial was as to who possessed the gun. That issue was resolved against Mr. Truong. [ 6 ] These are my reasons for sentence. B. The Facts Relating to the Offences. [ 7 ] The facts relating to the possession of the revolver are set out at length in the sixteen page written Reasons for Judgment released on December 3, 2010. I will not repeat them. [ 8 ] In brief

summary, the most important facts relating to sentencing are the following: • First, I found that Mr. Truong was the principal who was in personal possession of the revolver; • Second, the revolver was loaded with ammunition and was ready to be fired. Indeed, it can be inferred that it had been fired at some point, given the presence of gunshot residue; • Third, the revolver and the accused Mr. Truong had come on the night in question to high rise apartment premises in Regent Park where he did not reside. The premises were obviously a “crack house” and the accused Mr.

Truong must have known at some point that he was at a place where crack cocaine was being consumed and distributed. At least four crack addicts or users were on the premises at

the time and crack was being consumed; • Fourth, there is no explanation for Mr. Truong’s presence on these premises. He was not a crack user and I have rejected the explanation, implicitly advanced by the defence, to the effect that Mr. Truong and his friend Mr. Lac were on the premises looking for marijuana. [ 9 ] I am satisfied of the above facts beyond reasonable doubt and they obviously indicate that the offences of which Mr. Truong has been found guilty are very serious. I need not repeat my reasons for acquitting Mr.

Truong of possession of the fifteen grams of crack cocaine that the police found on the premises. Although I am satisfied that Mr. Truong knew the premises were a “crack house”, and that crack cocaine was obviously being consumed and distributed, I cannot be sure as to who was in control of this particular quantity of crack cocaine found by the police. C. The Facts Relating to the Offender. [ 10 ] The parties have filed Mr. Truong’s criminal record, a pre-sentence report, a letter from Mr. Truong’s high school teacher, various high school certificates and marks transcripts, and a letter from Mr.

Truong’s employer. [ 11 ] The following five points summarize the more important aspects of Mr. Truong’s antecedents: • First, he was born January 25, 1989 and had just turned nineteen at the time of these offences on January 28, 2008. He is now twenty-one years old and will be twenty-two years old next month. He is obviously still a young man. • Second, his parents are refugees from Vietnam who came to Canada over twenty years ago. They settled in Toronto in Regent Park, where Mr. Truong was born and raised. The parents are now separated. They appear to remain supportive of Mr.

Truong, although he did not reside with either of them while he was on bail. • Third, Mr. Truong acquired a Youth Court record, between 2004 and 2006 when he was age fifteen to seventeen. He was convicted of robbery, fail to appear and possession of marijuana for which he received conditional discharges. However, at one point he was in custody for a period of seven months, in relation to the robbery, presumably due to being denied bail. He was associated at the time with a gang known as the “Asian Assassins”. He consumed marijuana on a daily basis.

Not surprisingly, in light of these facts, his performance in school at this time was poor and he did not complete high school. • Fourth, as an adult, the accused committed the present offences in January, 2008 at age nineteen, as already noted. He was released on bail on a form of “house arrest” on February 7, 2008, after eleven days in custody. After less than five months on bail, he was arrested again for possession of marijuana, obstruct police and fail to comply with his recognizance, on June 30, 2008.

He was not granted bail and remained in custody until he pleaded guilty five months later on November 24, 2008. It is unclear whether he pleaded guilty to all three offences but, at a minimum, he pleaded guilty to the marijuana offence. It is also conceded that he was in breach of his recognizance, whether he pleaded guilty to this offence or not. He was sentenced to one day imprisonment (in addition to credit for fifteen days pre-trial custody). There was another twenty days of pre-trial custody, between conviction and sentence, after I revoked Mr. Truong’s bail. The parties agree that Mr.

Truong has now spent about six months in pre-trial custody for which he has not yet received credit. It has all been spent at the Don Jail. • Finally, and most positively, Mr. Truong has made good use of his time on bail in the last two years, since he was convicted and sentenced for the marijuana offence that he committed while on bail. His terms of “house arrest” permitted him to work and attend school. He did both, completing the last ten credits he needed to graduate from high school in June, 2010 and working full time for a contract cleaning company from March, 2009 to December, 2010.

He has filed glowing letters of reference from his high school teacher and his employer. Equally importantly, he has stayed out of trouble for the last two years. He plans to reside with his mother, attend George Brown College and acquire a trade upon his release from custody. He has abstained from drug use since 2009. The PSR concludes that he “started to show some maturity and demonstrate pro-social changes in 2009 and 2010” and describes his recent progress as “remarkable”. These developments obviously augur well for Mr. Truong’s rehabilitative prospects. D.

The Positions of the Parties. [ 12 ] The Crown and the defence do not agree on the appropriate range of sentence for this offence and this offender, although they are not too far apart. The Crown submits that two and one-half to three years imprisonment is the appropriate range and the defence submits that one and one-half to two years imprisonment is the appropriate range. They have helpfully placed a large number of sentencing decisions before the Court. [ 13 ] The Crown and the defence also disagree on the credit that should be given for pre-sentence custody and for the fact that Mr.

Truong has been on bail on a form of “house arrest” for almost three years. The defence submits that 2:1 credit should be given for the six months pre-sentence custody, pursuant to the common law convention that existed at the time of the majority of that custody in 2008. The defence also submits that some six months of additional credit should be given for the strict bail terms that Mr. Truong has complied with for the last two years.

These two forms of credit would reduce the fit sentence by some eighteen months. [ 14 ] The Crown submits that the accused is not entitled to 2:1 credit for his pre-trial custody, as he brought the vast majority of it on himself by committing further offences in breach of his bail. Furthermore, his restrictive bail conditions could have been reviewed, had he not proven that they were necessary due to his own misconduct.

[15] The parties are agreed that deterrence and denunciation are the most important sentencing values for this kind of serious guncrime, although the defence stresses that the other sentencing values, especially rehabilitation, cannot be completely over-looked. E. Analysis. [16] The principles of sentencing are set out in ss. 718, 718.1 and 718.2 of the Criminal Code and I am guided by those principles.

The most fundamental principal is the principle of proportionality found in s. 718.1. [17] In cases involving possession of loaded handguns, like the case at bar, the authorities are clear that exemplary or denunciatorysentences must be imposed because of the grave danger to the public posed by the proliferation of handguns in this city. Generaldeterrence, specific deterrence and denunciation are unquestionably the most important sentencing principles. In this regard, I simplyecho and adopt what was said by Armstrong J.A. in R. v. Danvers (2005), (ON CA), 199 C.C.C. (3d) 490 at paras.77 and 78 (Ont.

C.A.): There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongestpossible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the communityand must be addressed. [18] From my reading of the recent case law, the appropriate sentencing range for a first offence of possession of a loaded handgunsimpliciter, that is, in cases where there are no additional convictions such as for drug trafficking, is between two years less a day andthree years imprisonment.

Much longer sentences are imposed for recidivists. I am referring to the appropriate range for s. 95(1) casesdecided under the one year mandatory minimum regime, like the case at bar, which has been in force since 1998. The mandatoryminimum was increased to three years in 2008. The most useful cases, in this regard, are the following: • R. v. S.C. (2006), 215 O.A.C. 228 (Ont. C.A.) where the Court held that two years less a day was the appropriate sentence for anineteen year old first offender who pleaded guilty. He had a minor Youth Court record for which he had received probation.

He hadstrong family support and good rehabilitative potential; • R. v. Allen (2006), 71 W.C.B. (2d) 915 (S.C.J.) where the Court held that twenty-one months was the appropriate sentence for atwenty year old first offender who pleaded guilty and had strong family support. It should be noted that this sentence appears to havebeen influenced by concerns about parity, given that a co-accused had already received what appeared to be an unduly lenient sentence inanother court; • R. v. Stephens, [2009] O.J.

No. 6102 (S.C.J.) where the Court noted that two years less a day had previously been held to be theupper end of the range for first offenders but went on to hold that the range can move depending on the aggravating and mitigatingcircumstances of a particular case. Stephens was a twenty-five year old first offender who did not plead guilty but was convicted after atrial. He had “a very positive pre-sentence report”, had made “productive use of his time while on bail, including furthering hiseducation” and had “very realistic” prospects of rehabilitation.

A sentence of twenty-seven months was held to be appropriate; • R. v. Lawes (2007), 2007 ONCA 10 , 72 W.C.B. (2d) 487 (Ont. C.A.) where a sentence of three years was upheld, aftergiving credit for an additional twenty-eight days of pre-trial custody. The accused did not plead guilty but was convicted after a trial. Hehad a substantial Youth Court record, including convictions for robbery and assault with a weapon for which he received short custodialsentences.

He also had an adult record for a number of relatively minor offences. [19] In determining where to situate this offence and this offender in the range indicated by the above line of authority, an assessmentof the mitigating and aggravating circumstances is critical. [20] In my opinion, there are aggravating circumstances in this case. The accused brought the loaded gun to a “crack house” inRegent Park, where crack cocaine was being consumed and distributed amongst crack addicts. He had no good reason to be there. Carrying a loaded handgun in this kind of volatile environment is extremely dangerous.

These circumstances aggravate the offence.

[21] In terms of mitigating circumstances, the accused cannot benefit from the usual mitigating circumstances seen in the cases at thebottom end of the range, namely, guilty pleas, remorse and absence of a criminal record. However, he is still young and he has madeexcellent progress in the last two years and I agree that he finally seems to be showing rehabilitative potential. He is entitled to someleniency, within an otherwise appropriate range. [22] Balancing these mitigating and aggravating circumstances, I am satisfied that a sentence of two and one-half years imprisonmentis appropriate in this case.

The accused is entitled to at least six months credit for pre-trial custody. I am not persuaded that he shouldbe given 2:1 credit, or credit for restrictive bail conditions, as the “reasons for the detention” and for the restrictive terms of release werehis own misconduct while on bail. See: R. v. Downes (2006), (ON CA), 205 C.C.C. (3d) 488 at para. 25 (Ont.C.A.); R. v. Warren (1999), (ON CA), 127 O.A.C. 193 (Ont. C.A.); R. v. Pangman (2001), 2001 MBCA 64 ,154 C.C.C. (3d) 193 at para. 66 (Man.

C.A.). [23] As the accused is still young and has good rehabilitative potential, he should not be sent to a federal penitentiary. Theappropriate sentence is two years less a day imprisonment followed by two years probation on the following terms: (

a) Report as required; (

b) Seek and maintain employment or schooling; (

c) Not associate with anyone known to have a criminal record; (

d) Not possess any weapons. [24] In addition, I am making a DNA Order pursuant to s. 487.051 of the Criminal Code, given the gravity of the offence, and alifetime s. 109 firearms prohibition Order. [25] The parties are agreed that a conviction should be entered, pursuant to the Kienapple principle, only on the count relating to thes. 95(1) offence. The other two counts are stayed. M.A. Code J. Released Orally: December 22, 2010 CITATION: R. v. Truong, 2010 ONSC 7251 Court file: 0499/08 Date: 2010 12 22 ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – PHUC TRUONG Accused REASONS FOR SENTENCE Code J. Released: December 22, 2010