Court File and Parties

Date: 2015-01-28

Court File No.: 13-06286: Central East Region-Newmarket

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Kien Phat Tran & Phuong Thi My Bui

Before: Justice Peter C. West

Oral Reasons for Sentence: January 28, 2015

Counsel

Ms. M. Henshall, Mr. J. Fuller — for the Crown

Mr. J. Giuliana — for the accused, Kien Phat Tran

Mr. D. Heath — for the accused, Phuong Thi My Bui

Introduction

[1] Phuong Tony Bui was born on July 22, 2013 at Markham Stouffville Hospital. He was discharged in good health the day after he was born. He was pronounced dead on August 22, 2013 at Markham Stouffville Hospital. His parents, twenty-one year old Kien Phat Tran (DOB November 28, 1991) "Tran" and twenty-two year old Phuong My Thi Bui (DOB May 2, 1991) "Bui", brought him by taxi to the hospital hidden in a black bag. He had significant bruising and following a post mortem examination the cause of his death was determined to be blunt impact head injuries.

[2] Tran and Bui were not married and their families would not have approved of the couple having a baby outside of marriage. Consequently, they did not tell any of their family about the birth of their son. Although they shared a home with Tran's brother Kien Vinh Tran ("Vinh") Vinh told the police that he did not know that Bui was ever pregnant, or that she had given birth to a child or that the baby lived with Tran and Bui in their home. Both Tran and Bui kept Tony hidden in the bedroom they shared and managed to keep him quiet and undetected by Vinh.

[3] On August 21, 2013, around 11:30 p.m., Tony awakened and began to cry. Tran awoke and attempted to quiet Tony because Tran's brother, Vinh, was home and in a bedroom close to Tran's bedroom. The agreed statement of facts sets out the actions taken by Tran to quiet Tony, which ultimately caused the injuries and bruising to Tony Bui described by Dr. Pickup in the May 1, 2014 Post-Mortem report, attached as Exhibit "A" and depicted in the photographs, attached as Exhibit "B". It is agreed by the Crown and defence that Tran, in a momentary lack of judgment and frustration struck Tony with a ½ closed fist once on the left side of his face near his left temple and then once on the right side of his face near his right temple. Tony stopped crying almost immediately.

[4] Ms. Bui was present in the bedroom when Mr. Tran struck Tony to stop him from crying and was aware of his actions yet she did not seek medical attention for her son. When Bui and Tran awoke around 7 a.m. it appeared something was medically wrong with their son yet 911 was not called for an ambulance to attend the house out of fear that Vinh would discover they had a baby. Tran and Bui did not attend the hospital until after 9 p.m. when they brought Tony, wrapped in a blue towel in a duffel bag to the emergency. Unsuccessful CPR and other resuscitation measures were undertaken on Tony while at the hospital until he was pronounced dead by hospital staff.

[5] The forensic pathologist, Dr. Pickup, concluded that the cause of death was head injury. There was a large subdural hemorrhage (bleeding into the space around the brain), optic nerve sheath haemorrhage and retinal hemorrhages; all caused by multiple blunt force impacts with or without shaking. Dr. Pickup also noted in his report that Tony's body appeared clean, well-nourished and was appropriately developed for a 1-month old male infant.

[6] On August 27, 2013, Tran and Bui, at the request of the police, attended York Regional Police 5 District headquarters and were arrested and charged with second degree murder. They have been in custody since that date.

[7] Both Mr. Tran and Ms. Bui have accepted responsibility for their actions, which caused the death of their child, Tony, by Mr. Tran pleading guilty to the lesser included offence of manslaughter and Ms. Bui pleading guilty to the lesser included offence of failure to provide necessities of life. It is my view based on the agreed statement of facts filed by counsel and admitted by the accused, these guilty pleas are appropriate.

Sentencing Principles and Analysis

[8] This case involves the senseless and tragic death of a young and beautiful innocent child. Both parents will have to face the knowledge their actions caused and led to the death of their child. They will live with this knowledge for the rest of their lives.

[9] There is no doubt this is the type of crime where the sentencing principle of general deterrence must be paramount. Along with the principles of abhorrence, this reflects the feeling of society as a whole when a case like this comes to the court, and denunciation, which requires a sentence that repudiates in no uncertain terms conduct of this nature.

[10] Although both accused are youthful first offenders, this is a case where the principles of sentencing require a significant custodial sentence. This was a matter that was extensively pretried on a number of occasions and I wish to commend counsel for their professionalism in dealing with this tragic case. If this matter had proceeded to preliminary hearing and trial it would have taken much court time and great expense. It is clear it would have been a very difficult trial had it proceeded for all involved. Mr. Tran's and Ms. Bui's guilty pleas have obviated this necessity.

[11] Further, many of the discussions in the recent judicial pre-trials revolved around both accused wanting to accept responsibility for their actions and, in my view, their guilty pleas demonstrate genuine remorse for their actions, which led to the death of their son. It is important to note Tony was a healthy and well-nourished child. The circumstances which gave rise to Mr. Tran's assaultive actions, which were the result of a momentary lack of judgment and frustration, and Ms. Bui's fear of seeking medical attention for Tony's injuries because this would lead to both of their families discovering they had a baby outside marriage, provide an explanation which to some extent is mitigating. Certainly the cases reflect this (see R. v. Alexander, [2011] O.J No. 5500, at paras. 60-61; R. v. Oben, [2013] O.J. No. 1100, at paras. 22-26; R. v. Da Silva, [2005] O.J. No. 2389 and R. v. Mendieta, [2011] O.J. No. 935, at paras. 48-49).

[12] The most aggravating factor is Tony's extreme vulnerability, closely followed by the fact that Mr. Tran and Ms. Bui were his parents. It is very difficult for anyone, especially those of us who are parents and grandparents, to conceive hurting our own children or grandchildren, especially to the extent that poor little Tony was harmed in this case. It is heartbreaking to even think about and shocking to see. Clearly, Mr. Tran and Ms. Bui engaged in a gross violation of the position of trust in relation to their son.

Sentence

[13] In all of the circumstances of this case, the joint submission submitted by Crown and defence for Mr. Tran on the charge of manslaughter of six years less PTC is a fit sentence supported by the caselaw. It was agreed by counsel, in light of R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 and R. v. Ayati-Ghaffari, [2014] O.J. No. 5519 (Ont. C.A.), credit on a 1:1.5 basis should be granted to both accused. They have been in custody since their arrest on August 27, 2013, some 520 days. On a 1.5 to 1 basis this provides for a credit of 780 days or 2 years and 50 days. Consequently, Mr. Tran is sentenced to a further 3 years and 315 days.

[14] Ms. Bui pled guilty to failing to provide the necessities of life to her son, knowing he had suffered injuries as a result of the assaultive behaviour of Mr. Tran. The joint submission by the Crown and defence of an additional six months (180 days) in jail, on top of the credit for pre-trial custody of 2 years and 50 days, is in all of the circumstances of this case a fit sentence. The total sentence for Ms. Bui, before credit for pre-trial custody is given, is therefore 2 years and 230 days in jail.

Ancillary Orders

[15] Under s. 109 of the Criminal Code, Mr. Tran is prohibited for life from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance.

[16] Under s. 110 of the Criminal Code, Ms. Bui is prohibited for 10 years from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance.

[17] Under s. 487.051(1) of the Criminal Code, Mr. Tran hereby ordered to provide a number of samples of bodily substances that are reasonably required for the purpose of a forensic analysis of your DNA.

[18] Under s. 487.051(3) of the Criminal Code, Ms. Bui hereby ordered to provide a number of samples of bodily substances that are reasonably required for the purpose of a forensic analysis of your DNA.

Released: January 28, 2015

Signed: Justice Peter C. West