Court and Parties

DATE: 2021·09·23 ONTARIO COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

— AND —

PHILLIP BUI

Before: Justice Wayne G. Rabley Heard on: July 13 and September 2, 2021 Reasons for Judgment released on: September 23, 2021

Counsel: H. Somal...................................................................................................................... for the Crown R. Marchak............................................................................................................... for the accused

RABLEY J.:

[1] Phillip Bui is before me to be sentenced for the offences of Robbery and Aggravated Assault. He pleaded guilty on July 13th and a Pre-Sentence Report was prepared. Submissions as to sentence were made by counsel. I have had the opportunity to review caselaw relative to this area and these are my reasons for judgment.

[2] On October 15th, 2019 the victims Hunter Boutilier and Andrew Kryvotsyuk met up with a friend Andrew Jackson in a wooded area in the City of Kitchener. At 11 a.m. Phillip Bui, Sebit Kujo, a young person and two unknown offenders also arrived in the area. One of the unknown offenders asked if anyone had cannabis and when one of the victims replied that he did, the first individual pulled up his shirt to reveal a black BB gun and demanded that they turn it over.

[3] The gun was pointed at Kryvotsuk and the two unknown offenders tried to take his backpack. Kryvotsuk realized that the weapon was a BB gun and knocked it to the ground where it broke. As the unknown offender reached down to pick it up and fix it, Kryvotsuk tackled him and they went to the ground. The unknown offender used the gun and pistol whipped Kryvotsyuk in his face and head several times.

[4] Kryvotsuk was stabbed three times on the upper part of the back of his leg. One of these stab wounds is known to have been administered by Phillip Bui. He had arrived in the area separately and had been given a knife by another member of the group which he accepted without asking why. he believed that it may be necessary for protection but was seen with the knife in hand at the time Kryvotsuk was stabbed by him and others.

[5] Kryvotsuk tackled Bui who then dropped his knife. While this was going on, Boutilier was also attacked. He was held down and repeatedly kicked. He too was stabbed three times in the leg. It is unknown who it was that stabbed him. Jackson tried to walk away but was initially detained. He continued to leave but returned when he heard the struggle. He tackled Bui but was then stabbed in the head. He then ran away to Resurrection High School and sought help. 911 was called and the police responded.

[6] Both Kryvotsyuk and Boutilier were taken to the hospital for treatment. Kryvotsyuk’s injuries to his face and leg were closed with staples and sutures.

[7] The next day, Sebit Kujo walked into the Waterloo Regional Police Central Division of his own volition and gave a video taped statement confessing to his role in the attack. He named two others including someone by the name of Phillip. This corroborated the statement of Jackson who identified Bui as one of the participants. As a result, Phillip Bui was arrested. He denied involvement in the incident.

POSITIONS OF THE PARTIES

[8] The Defence submits that given that Mr. Bui is a youthful first offender who has pleaded guilty that I consider a Conditional Sentence in the range of 15 months. In the alternative, the Defence suggests a sentence of incarceration in the range of 9 to 12 months. The Crown submits that the serious nature of the offence requires real jail and taking into account his personal circumstances that I sentence Mr. Bui to a period of incarceration of 15 months.

VICTIM IMPACT

[9] I received victim impact statements from Hunter Boutilier and Andrew Jackson. They have been traumatized by the events that unfolded that day. Mr. Boutilier has tried to work through the situation with counselling but could not afford to continue. No doubt the emotional wounds from this incident will have left significant scars on these young men for many years.

PRINCIPLES TO BE APPLIED

[10] The Criminal Code instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law, and help maintain a just, peaceful, and safe society. Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are also contained in the Criminal Code. These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime and to promote a sense of responsibility of offenders and an acknowledgment of the crime they have caused the communities and specific victims in our communities.

[11] Ultimately, the fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed and the degree of responsibility of the person who committed it. This means that for the sentence I impose to be appropriate, it must be tailored to Mr. Bui’s circumstances and the circumstances of the offence he committed. In determining an appropriate sentence, it is helpful to consider any aggravating and mitigating circumstances that are present at the time. This would include features of Mr. Bui’s background, features of the crime he has committed, and any other evidence I received during this sentence hearing.

[12] It is also important to take into account the Doctrine of Restraint and the fact that Mr. Bui is a first offender. As stated by our Court of Appeal in R. v. Priest (1996), 110 CCC (3d) 289 (Ont. C.A.):

Even if a custodial sentence was appropriate in this case, it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.

BACKGROUND OF THE OFFENDER

[13] Phillip Bui was born in Kitchener and is now twenty years of age. His parents separated when he was quite young but his mother has been in a committed common-law relationship since he was six. He has a good relationship with his parents as evidenced by the letter of support I have received as well as his two brothers who are now aged twelve and nine.

[14] Mr. Bui was an average student in school and completed his grade twelve. He has worked part time for a fast food restaurant in Kitchener since April of 2019. In the future, he is hoping to study auto mechanics at a community college. Both Mr. Bui and his mother describe him as being a shy and compassionate person who was negatively influenced by anti-social peers. As he stated in the PSR, he felt a need to become involved in the offences to “show off” in front of his friends.

[15] Mr. Bui is very remorseful for his actions. He expressed his sorrow for what he did and I accept that his apology was heartfelt and sincere. Since the offences, he has distanced himself from his negative peers and regrets his involvement with them.

AGGRAVATING FACTORS

[16] There are a number of aggravating factors in this case. In my view, they are: a) weapons including knives were involved during the course of a robbery; b) the offences have had a significant impact on the victims; and c) Mr. Bui was involved in an attack with multiple aggressors;

MITIGATING FACTORS

[17] There are also mitigating factors in this case. In my view, they are: a) Mr. Bui is a youthful first offender; b) he entered a plea of guilty and has shown genuine remorse; c) he has a pro-social background and a family which is supportive; d) he has distanced himself from a negative peer group who were a bad influence on him.

ANALYSIS

[18] Counsel jointly submit and I agree that the ruling in Sharma opens the door for a court to consider the appropriateness of a conditional sentence. This has recently been confirmed by the Court of Appeal in R. v. Gray, [2021] O.J. No. 626.

[19] Counsel for Mr. Bui submits that I consider the principle of parity. I am told that Mr. Kujo also pleaded guilty and received a conditional sentence of 5 1/2 months after a joint submission was made. I acknowledge that parity is a principle that must be considered but I agree with the Crown that it has less impact in a case such as the one I have before me. Mr. Kujo played a different role than Mr. Bui. Also, Kujo voluntarily turned himself in and provided a statement which assisted the police in their investigation. I am told that he was not one of the aggressors and did not stab anyone during the incident. The circumstances are significantly different than Mr. Bui’s and in my view merit a different disposition.

[20] I am not bound by a range of sentence, but it is useful to consider ranges as set out by our higher courts. In R. v. Tourville, 2011 ONSC 1677, Justice Code reviewed a number of cases where courts sentenced offenders for aggravated assault. The sentencing range varied from one of a suspended sentence in an exceptional circumstance to significant penitentiary terms. In my view, Mr. Bui’s case falls within the mid-range described by Justice Code where he said:

In the mid-range are cases where high reformatory sentences have been imposed of between eighteen months and two years less a day. These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused has resorted to excessive force. See: R. v. Chickekoo (2008), 79 W.C.B. (2d) 66 (Ont. C.A.); R. v. Moreira, [2006] O.J. No. 1248 (S.C.J.); R. v. Basilio (2003), 175 C.C.C. (3d) 440 (Ont. C.A.).

[21] Justice Code went on to explain that cases involving “unprovoked” or “premeditated” assaults where there is no suggestion of an element of consent or self-defence or cases where the individuals have serious criminal records might find themselves receiving sentences from four to six years.

[22] I recognize that sentencing is an individualized process. Therefore, it is important to look at Mr. Bui’s particular circumstances and the offences that he has committed. However, it is also important to look at judicial precedent when determining what a fit and appropriate sentence should be. Recently there have been a number of decisions that deal with this issue.

[23] In R. v. Abd ul Ali, 2020 ONSC 7059, the two accused were charged with Aggravated Assault after they confronted their victim, punched him in the face causing him to fall to the ground and then kicked him in the head and back a number of times. The victim suffered facial injuries and the vision in his right eye was affected. The offenders were 28 and 35 years of age with very little or no record. Justice Corrick accepted that the assault was not planned or premeditated. After hearing submissions, she could not find that “a conditional sentence can adequately address the sentencing objectives of denunciation and general deterrence.” She sentenced each offender to 15 months in custody to be followed by two years of probation.

[24] In R. v. Minhas, [2021] O.J. No. 1240, the accused pleaded guilty to Assault Causing Bodily Harm and Aggravated Assault after he stabbed two individuals at a house party. Mr. Minhas was 18 years of age at the time with no criminal record. He was remorseful for what he had done. Justice Henschel considered but then rejected a conditional sentence because it “cannot adequately address denunciation and deterrence” and “would not be consistent with the fundamental purpose and principles of sentencing set out is s. 718 to 719.2.” Taking into account totality, Minhas was sentenced to 18 months in custody, 12 months for the aggravated assault and an additional 6 months for the assault causing bodily harm.

[25] In R. v. Mair, 2019 ONCJ 700, the accused had an argument with two strangers outside of a Tim Horton’s store and then began fighting with them. He produced a blade and stabbed both men, injuring one more than the other. Mair was a youthful first offender who was struggling with addiction and suffering from mental health issues. He expressed his sorrow for what he had done and he pleaded guilty. After considering his personal circumstances and the appropriate legal principles, Justice Ghosh sentenced Mr. Mair to 18 months in jail.

[26] In R. v. Randhawa, 2019 ONCJ 633, the accused was found guilty of aggravated assault and assault with a weapon after trial. During a confrontation between others, Randhawa removed a knife from around her neck to defend her friend and swung it at the two victims, striking one in the stomach area causing a minor cut and the other in the collarbone area. Just prior to the offence, the accused had been using cocaine and had mental health issues. Prior to sentencing she undertook a course of treatment to deal with these issues and was successful in her rehabilitative steps. She was apologetic for her actions. Justice De Fillilpis was very sympathetic to Randhawa’s personal circumstances, but in his concluding remarks, he made the following comments:

I agree with Justice Ratushny in White that “it is a rare case when a stabbing that has occurred without legal justification would be punished by a suspended sentence and probation and no incarceration”. The reason is simple; denunciation and deterrence demand this response in most cases. In my opinion, the circumstances of this offence and offender do not justify a departure from the established sentencing principles. This does not mean that the defendant’s background and post-offence efforts should be ignored. Indeed, they are mitigating factors and warrant a disposition below the mid-range sentence identified by Justice Code in Tourville.

[27] Ultimately, Justice De Fillipis sentenced Randhawa to 12 months in jail. I agree with His Honour’s comments. I also adopt the same rationale as Justices Corrick and Henschel with the need to impose incarceration in these types of situations. In my view, although a conditional sentence is available, I am of the view that it does not address the denunciation and deterrence that are necessary in this case. Mr. Bui was an active participant in a robbery and stabbed the victim who appeared to be fighting to defend himself against armed aggressors. It was a cowardly act and one which I accept he is now remorseful for. However, although Mr. Bui is regretful, has the support of his family and a reasonably positive PSR, he does not have the significant mitigating factors that Justice De Philips noted in the Randhawa case.

[28] Mr. Bui is a youthful first offender. He pleaded guilty and is entering custody during the fourth wave of the Covid 19 pandemic. These are important considerations and I factor them into my consideration. In my view, it is also appropriate to give meaning to the doctrine of restraint and I do so in trying to fashion a sentence that is lower than the range set out in Tourville for this type of offence. As a result, I sentence Mr. Bui to 15 months’ incarceration concurrent on each offence to be followed by 18 months of probation.

[29] The terms of probation will be as follows: (a) keep the peace and be of good behaviour; (b) appear before the court when required to do so by the court; (c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; (d) report to a probation officer within 2 working days of your release from custody and thereafter as required; (e) reside at an address to be approved of by your probation officer and not change that address without receiving the prior written authority of your probation officer; (f) find and maintain suitable employment or attend at school and provide confirmation of same to your probation officer when requested to do so; (g) do not possess any weapon(s) as defined by the Criminal Code (for example, a BB gun, pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person); (h) do not associate in any way with Andrew Kryvotsyuk, Andrew Jackson, Hunter Boutilier or Sebit Kujo and do not attend at any place known to you to be their place of education, residence or employment; (i) attend for counselling as directed, specifically with respect to issues identified by your probation officer. You must sign any authorizations requested by your probation officer for the release of this information.

[30] I will make an Order that Mr. Bui provide a sample of his DNA. In my view the community interests outweigh his privacy interests in a case such as this. There will be a weapons prohibition for a period of 10 years. Given that Mr. Bui will be in custody, I will waive the victim surcharges. I will also make an order pursuant to section 743.21 of the Criminal Code prohibiting Mr. Bui from communicating in any way with Andrew Kryvotsyuk, Andrew Jackson or Hunter Boutilier.

Released: September 23rd, 2021 Justice Wayne G. Rabley