Court File and Parties
Ontario Court of Justice
Date: 2018-07-18
Court File No.: Newmarket 17-00430
Between:
Her Majesty the Queen
— and —
Nhan Hien Le
Before: Justice David S. Rose
Heard on: July 11, 2018
Reasons for Sentence released on: July 18, 2018
Counsel:
- Ms. Rizok, counsel for the Crown
- Mr. McKee, counsel for the accused Nhan Hien Le
Reasons for Sentence
Rose J.:
Convictions
[1] Mr. Le was convicted after trial of the following offences:
- Aggravated Assault against Jerry Sukhdeo;
- Assault with a Weapon against Chandrapaul Gangaram;
- Assault with a Weapon against Vadim Logvinovsky;
- Assault against Vadim Audisho.
Facts
[2] The facts of the case are that on January 11, 2017 Mr. Le and the victims were working at DCL Industries. DCL is in the business of metal fabrication of mufflers. To do that it employs welders, like Mr. Le and Mr. Gangaram, as well as supervisors, like Mr. Sukhdeo, and Quality Assurance personnel like Mr. Audisho. I got the impression that DCL is the kind of place where many of the staff have been employed there for years.
[3] Mr. Le was a welder there when, on January 11, he attacked Mr. Sukhdeo, Mr. Gangaram and Mr. Logvinovsky with a metal pipe or bar, about 2 – 3 feet long. The series of assaults happened in fairly short order. Mr. Audisho was struck in the face by Mr. Le after he left the building after he had hit the other victims with the metal bar. The incident happened at about 8:30 am, at the beginning of the shift, when the production line was shifting from fabrication of one type of muffler to another. Because of that Mr. Sukhdeo and Mr. Gangaram were in the process of collecting new parts and bringing them to the production line on a cart. It is at that point that they encountered Mr. Le who assaulted them.
[4] Prior to the assaults Mr. Le had gone upstairs in the factory to the office area to complain to management. He was seen there by Mr. Logvinovsky, and said to him that he was complaining because he wasn't happy. After that conversation Mr. Le returned to his work station on the shop floor.
[5] Based on the evidence I heard there was nothing which might have provoked the attacks. Mr. Le may have had work related complaints, but they were nowhere near anything which might have formed the basis for assaulting his co-workers, let alone the nature of the assaults. The incident was unprovoked.
[6] The assaults ranged from a punch to the face of Mr. Audisho to striking Messrs. Sukhdeo, Gangaram and Logvinovsky with a metal bar. The nature of the injuries suffered deserves mention.
Victim Injuries
[7] Mr. Sukhdeo woke up the day after the attack in the emergency ward of a hospital. He suffered a horrible wound to his head requiring several surgical staples to close. The hit resulted in a fractured eye socket and a brain injury. It was clear to me from Mr. Sukhdeo's testimony at trial that he now suffers from significant and permanent cognitive impairment from the incident. He came into Court with a walker. His Victim Impact Statement makes for difficult reading. His injuries are so serious that he is permanently disabled. He can no longer work. He can no longer enjoy the company of his family. He was a pastor in his church and can no longer participate as he once did. Mr. Sukhdeo was once a proud man, but now "…every morning I cry waking up". As he put it, "…I expect the injuries I sustained on that day will contribute to my early demise". One of the pictures entered into evidence, Exhibit 3, shows the significant amount of blood which Mr. Sukhdeo lost in the attack and which flowed like a small river into the nearby drain.
[8] Mr. Audisho suffered a bruised cheek and no permanent physical injuries. Emotionally he is fearful for his security in the workplace.
[9] Mr. Logvinovsky required 17 stitches to close his head wound, and was in pain for about a month. He had vertigo for 1 – 2 months. He has taken physiotherapy, but was off work for 2 months because of the incident. He is fearful of Mr. Le.
[10] Mr. Gangaram was in the hospital for one day. It took 13 stitches to close the wound above his eye. He was off work for 6 weeks. He now suffers from migraines and sleepless nights.
[11] While the incident was fairly brief in duration it nonetheless had serious, long term implications for the 4 victims and their family. The severity of the injuries and the impact of the attack on the victims is an aggravating factor in sentencing under s. 782(a)(iii.1). I would also identify the unprovoked nature of the attack and the fact that it took place in a workplace as other aggravating factors. Shop workers on a factory floor have the right to expect that their co-workers will support them, to various degrees, and that their workplace will be free of violence. What happened here was the exact opposite.
Background of the Accused
[12] Mr. Le himself is 35 years old. He has no prior criminal record. He has been married for 20 years and has a good marriage. The Pre-Sentence report describes him as hard working. It is clear that Mr. Le is a devoted father and husband, and that he is devoted to his family. He is a welder by trade, and has done that for most of his working life.
[13] The pre-sentence report outlines Mr. Le's counselling sessions from June of 2017 to March of 2018. The sessions were geared to anger management and self-control. The Pre-Sentence report outlines some amount of remorse, but having heard his statement to the Court at sentencing I could not find that he is genuinely remorseful. At trial he maintained that the victims were to blame, and he continues to maintain that.
Position of the Parties
[14] The Crown argues for a 3 – 4 year sentence with ancillary orders, and the Defence argues for an 18 month jail term with probation.
Sentencing Analysis
[15] The range of sentence in Aggravated Assault cases has been identified by Code J. in R. v. Tourville 2011 ONSC 1677. This has been followed in other Aggravated Assault cases, see R. v. Wickham 2015 ONSC 1544, or more recently R. v. Power 2018 ONSC 598. At the bottom end of the sentencing range are exceptional cases where non-custodial sentences were imposed. Within that range are offenders who have a number of noted challenges including alcoholism and drug abuse, but where the offender has made significant progress prior to sentencing.
[16] In the middle range of cases identified by Code J. are offenders who received upper reformatory sentences. Those offenders have been convicted for conduct which has some elements "…suggestive of consent fights…" (Tourville at par. 28) but where the offender used excessive force. Cases in this range are first offenders, like Mr. Le.
[17] Cases in the upper range attract sentences of 4 – 6 years in jail. These cases involve recidivists with serious prior records or involve unprovoked or premeditated assaults devoid of any element of consent or self-defence. The facts of this case are within the upper range identified by Justice Code.
[18] In Mr. Le's case there is some initial appeal to imposing a reformatory sentence because Mr. Le is a first offender, who has spent the entirety of his life supporting and raising a family. This is a mitigating factor. He has never served a jail sentence, let alone a penitentiary sentence. That, however, must be balanced against the nature of this attack.
[19] All victims were defenceless co-workers expecting to do nothing more, and nothing less than earning a living the day of the attack. There was nothing on shop floor of DCL that day which might have caused this vicious attack on workers. Mr. Le's conduct that morning was spontaneous and unprovoked. It left one victim without a significant amount of his previous life. The others' wounds have now healed but they are now mentally scarred to some degree. Having reflected on the nature of the incident, Mr. Le, and his moral blameworthiness, I simply cannot find that a reformatory sentence would adequately fulfill the denunciatory and deterrent objectives required here. This cries out for a penitentiary sentence. The sentence will therefore be:
Sentence
- Aggravated Assault against Mr. Sukhdeo – 3 years 2 months jail;
- Assault with a weapon against Mr. Gangaram – 2 years less a day concurrent to Count 1;
- Assault with a weapon against Mr. Logvinovsky – 2 years less a day concurrent to Count 1;
- Assault against Mr. Audisho – 6 months in jail concurrent to Count 1.
[20] In addition, there will be an order for DNA. There will be a s. 110 order for 10 years. Mr. Le served 3 days of Pre-Trial custody on this Information and therefore 5 days will be deducted from the overall sentence.
Released: July 18, 2018
Signed: Justice Rose