Date: October 6, 2021 Ontario Court of Justice Old City Hall - Toronto

Between: Her Majesty The Queen — And — Nam Nguyen

For the Crown: H. Keating For the Defendant: M. Shifman Submissions heard: August 26, 2021

Reasons for Sentence

RUSSELL SILVERSTEIN, J.:

A. Introduction

[1] Mr. Nguyen has pleaded guilty to an aggravated assault on Noah McCann.

[2] Mr. Nguyen admitted to the following, somewhat edited, statement of facts:

On Sunday March 24, 2019 the victim and his friends had already attended a couple of establishments in the Kensington Market area of Toronto.

All three parties were walking southbound on Spadina Avenue near Swatow Restaurant located at 309 Spadina Avenue. As they were getting close to the restaurant, a group of three males were standing out front. One of the males began making vulgar and inappropriate comments toward the two women who were with the victim.

The victim and the three males exchanged words from a distance, with the accused becoming increasingly agitated and hostile. The victim returned to where the three males were standing and seemingly tried to shake hands with the accused.

One of the three males seemed to try to keep the accused away from the victim, at which point another male (suspect) walked behind the victim. The accused continued escalating the situation by screaming and acting like a complete maniac.

The unknown suspect threw a sucker punch from behind the victim, striking him in the right side of his face. The accused took this opportunity to blitz the victim with numerous punches toward his head and upper body area.

This is all captured by CCTV footage.

Soon after, all parties continued southbound on the sidewalk of Spadina Avenue, out of camera view. The victim was taken to the ground where he was kicked and punched several times.

After the assault, the victim made his way to Swatow Restaurant where an ambulance was called. The victim was transported to Mount Sinai Hospital.

Victim's injuries: Broken jaw in two places, concussion, cuts and bruises to face and body. The victim has 8 screws and 2 metal plates in his jaw as a result of this incident.

The victim was able to provide a statement to police on April 3, 2019.

On April 21, 2019, the accused turned himself into 52 Division to answer to the charges. The accused was arrested and held for a show cause hearing.

[3] Mr. Nguyen admitted to the probation officer who prepared the presentence report that he had drunk approximately five to six shots of Cognac and was intoxicated at the time of the offence.

B. The Circumstances of the Offender

[4] Mr. Nguyen has no prior convictions.

[5] What else I know about Mr. Nguyen comes only from Mr. Shifman’s submissions and from the presentence report.

[6] Mr. Nguyen is 27 years old. He enjoyed a happy childhood. He is single, with no dependents and has a high school education. He lives with his brother. He has a solid work history and is currently employed in the industry of hazardous materials disposal. His supervisor speaks highly of him. According to Mr. Nguyen’s brother, the offence is quite out of character for Mr. Nguyen.

[7] Mr. Nguyen told the probation officer that he was interested in pursuing anger management counseling, yet he has done none to date. Mr. Shifman submitted that during the COVID-19 pandemic such counselling cannot be accessed, but I do not accept this.

C. The Impact of the Offence on Mr. McCann

[8] In his Victim Impact Statement, which was not challenged by Mr. Nguyen, Mr. McCann describes his physical injuries thus:

As a result of the unprovoked attack, my jaw was fractured in 2 places and dislocated. I required a 5-hour surgery to insert 2 metal plates to repair the damage. I had 8 temporary screws put in my upper and lower jaw to prevent movement and allow healing. The physical pain at the time was excruciating. The morphine prescribed dulled the pain but the pain never totally subsided. I was unable to eat solid food for 8 weeks. I now have a scar that runs from below my right ear to just above my jawline. The plate at the front of my jaw was inserted through an incision inside my mouth. I continue to experience pain in my jaw, headaches, still have no feeling in part of my lower lip and have a tingling sensation on the lower left side below my lip as well as occasional jaw locks. My dentist has told me that one of the screws went through the root of one of my molars and it is still unclear the extend of the damage. There were also several chipped and loose teeth as a result of the blows to the face.

[9] Mr. McCann had to stop work while he underwent treatment and recovery. He also continues to suffer emotionally and has had to undergo counselling. He suffers from recurring nightmares and feels fearful - so much so that he has had to take up residence outside Toronto where there are fewer people. He says that the attack has changed his life forever.

D. The Positions of the Parties

[10] Mr. Shifman seeks a conditional sentence for Mr. Nguyen of unspecified duration, followed by a term of probation. He relies on no caselaw to support his position.

[11] Ms. Keating suggests that the appropriate range of sentence is 18 – 24 months’ imprisonment with probation. She cites R. v. Tourville, 2011 ONSC 1677 in support of her position. She neither advocates for nor against a conditional sentence.

E. The Principles of Sentencing

[12] The principles of sentencing are set out in Part XXIII of the Criminal Code.

[13] According to s. 718 of the Criminal Code, the "fundamental purpose" of sentencing is to contribute to "respect for the law and the maintenance of a just, peaceful and safe society" by imposing "just sanctions" that have one or more of the following objectives, namely: (a) to denounce unlawful conduct; (b) to deter the offender and others from committing offences; (c) to separate offenders from society where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.

[14] Further, according to s. 718.1 of the Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[15] Section 718.2 of the Code also dictates that, in imposing sentence, the court must also consider several principles including the following:

• A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.
• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
• Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.
• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
• All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[16] In the case of youthful first offenders, like Mr. Nguyen, the Court of Appeal for Ontario has made it clear that the primary objectives in sentencing are individual deterrence and rehabilitation and that the court should explore all other dispositions before imposing a custodial sentence. A custodial sentence should only be imposed where “the circumstances are such or the offence is of such gravity that no other sentence is appropriate.” “The sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances. This principle implies that trial judges consider community-based dispositions first and impose more serious forms of punishment only when necessary.” R. v. Stein (1974), 15 C.C.C. (2d) 376 (Ont. C.A.) at p. 377 and R. v. Priest, [1996] O.J. No. 3369 (C.A.).

F. The Aggravating Circumstances

[17] The most significant of the aggravating circumstances is the extent of Mr. McCann’s injuries. It should also be noted that Mr. Nguyen was not satisfied with punching Mr. McCann once, but rather, in concert with others, continued the assault after Mr. McCann had fallen to the ground.

G. The Mitigating Circumstances

[18] I am not particularly impressed with Mr. Nguyen’s attitude towards the offence. Mr. Nguyen addressed the Court after submissions and expressed his remorse. He pleaded guilty, which the law recognizes as a sign of remorse. Yet, when interviewed by the probation officer he did not express remorse, but rather blamed Mr. McCann for the incident.

[19] He told the probation officer that Mr. McCann had hurled racial epithets at him before the assault and had pushed him first. Mr. Shifman, in his submissions, repeated the allegations of racist comments. Ms. Keating refused to accept these allegations, which are quite contrary to the facts Mr. Nguyen admitted on his guilty plea. I granted Mr. Nguyen the opportunity to call evidence on this issue and he chose not to. I do not accept Mr. Nguyen’s untested, non-testimonial allegations in this regard.

[20] It seems that this offence is out of character for Mr. Nguyen. Moreover, it has been more than two years since the incident and Mr. Nguyen has not misbehaved in the interim.

[21] Mr. Nguyen was intoxicated when he committed the assault. Yet, as the Court of Appeal observed in R v Dunn, [2002] O.J. No. 864 (C.A.), at para 34, "[v]iolence occurring while under the influence of alcohol is not usually a mitigating factor.”

H. Analysis and Caselaw

[22] It is a well settled principle of criminal law that similar sentences should be imposed on similar offenders for similar offences in similar circumstances. Criminal Code, s. 718.2 (b); R. v. Lacasse, 2015 SCC 64 at para 2.

[23] There is ample caselaw involving offenders like Mr. Nguyen. There is no question in my mind that a period of imprisonment is mandated by our jurisprudence. R. v. Tourville, 2011 ONSC 1677; R. v. Berry, 2015 ONSC 2560; R. v. Quintyne, 2018 ONCJ 482; R. v. Carter, [1999] O.J. No. 5419 (S.C.J.)

[24] The cases I have found which most closely resemble the circumstances in Mr. Nguyen’s case are: (1) R. v. Berry, supra, which involved a single unprovoked shove to the victim leading to a fall and serious injury. During a time when conditional sentences were not available for aggravated assault, Berry, a first offender received a 4-month custodial sentence and probation after trial. (2) R. v. Carter, supra, where a friend of the 20-year-old accused punched the victim when he was not expecting it, knocking him to the ground. While the victim was recovering, the accused hit him with a beer bottle, and when he fell again, kicked him twice in the head. The victim suffered injuries to his eye, a broken nose, a gash to his scalp and migraine headaches. There was an element of provocation of the accused. The accused had a supportive family and no previous record. He had a Grade 12 education, some credits toward university, and a significant employment background. His presentence report was described as positive and he had embarked on counselling prior to his sentencing. Carter received an eight-month conditional sentence, community service and probation on a plea to aggravated assault.

[25] Even though, given his status as a youthful first offender, the primary objectives in sentencing Mr. Nguyen are individual deterrence and rehabilitation, given the nature of the crime, I must not lose sight of the need to address the principles of general deterrence and denunciation. R. v. Carter, supra; R v. Rochetta, 2014 ONSC 5668, at para 47; R. v. Tourville, supra, at para. 25.

I. Should Mr. Nguyen’s Sentence of Imprisonment be Served in the Community?

[26] Ms. Keating concedes that pursuant to R. v. Sharma, 2020 ONCA 478, a conditional sentence is, once again, a legal and available sentence for aggravated assault if the remaining constitutional statutory prerequisites for such a sentence are met.

[27] Section 742.1 sets out the conditions allowing for the imposition of a conditional sentence. There remain five (5) prerequisites for the imposition of a conditional sentence:

• The offender must be convicted of an offence that is not specifically excluded.
• The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment.
• The court must impose a sentence of imprisonment that is less than two years.
• The safety of the community would not be endangered by the offender serving the sentence in the community.
• The conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Code.

[28] Aggravated assault is not specifically excluded from the imposition of a conditional sentence, nor does it attract a minimum sentence.

[29] I believe that a sentence of imprisonment of less than two years is appropriate.

[30] Mr. Nguyen has no history of violence and has been well-behaved since the commission of the offence. I find that he presents a low risk of re-offending and I am thus satisfied that service of the sentence in the community would not endanger the safety of the community.

[31] The final test I must apply to the circumstances of this case poses the greatest challenge. The offence is a serious one, involving protracted violence with serious consequences perpetrated by an offender who seems to lack insight. These aspects of the case militate in favour of a custodial sentence. On the other hand, Mr. Nguyen is only 27 years-old, pleaded guilty, has no prior criminal record, and is fully employed at a job he could lose if incarcerated. These aspects of the case militate in favour of a non-custodial sentence. A custodial sentence in the order of 8 – 12 months, or a longer, strict conditional sentence could both be supported by the caselaw. See R. v. Carter, supra, R. v. Sauve, 2018 ONSC 7375; R. v. Berry, supra; R. v. Quintyne, supra; R. v. Minhas, 2021 ONCJ 143; R. v. Monchka, 131 O.A.C. 9; R. v. Tourville, supra.

[32] I believe that the principle of restraint, as articulated in s. 718.2, along with the Court of Appeal’s direction in Stein and Priest dictates the imposition of a non-custodial sentence and I am satisfied that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. Even though a conditional sentence does not involve incarceration, it can nonetheless be sufficiently strict that it satisfies all the objectives of sentencing in this case, including denunciation and deterrence, while also satisfying the need to demonstrate restraint: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 at paras. 21-22, 36, 41, 102, 127.

J. Conclusion

[33] I sentence Mr. Nguyen to a 16-month conditional sentence. The first 10 months of the sentence will involve house arrest with an exception for employment. The last six months will include a curfew of 10 pm – 6 am.

[34] This conditional sentence will be followed by two years of probation that will include 75 hours of community service and counseling for anger management.

[35] There will be a DNA order and a section 109 order for 10 years.

[36] Counsel can address what further terms would be appropriate to both the conditional sentence order, the probation order, and other ancillary orders.

Released on October 6, 2021 Justice Russell Silverstein