COURT FILE NO.: 10-11787G
DATE: 2013-12-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SINHEM SRUN
Defendant
M. Dionne & J. Costain, for the Crown
K. Graham, for the Defendant
HEARD: December 16, 2013
Justice B. Glass
Reasons For Sentence For Second Degree Murder And Attempted Murder
[1] On November 17, 2013, the jury returned verdicts following a trial that commenced with jury selection on September 25, 2013. The verdicts found Sinhem Srun guilty of both counts as charged.
[2] A pre-sentence report was ordered following the presentation of the verdicts.
Victim Impact Statement
[3] Victim Impact Statements from Chantheary Ly and Mao Kim were filed as exhibits and read to the court by Mr. Dionne.
[4] A Victim Impact Statement from Chantheary Ly, the wife of the deceased Vandin Svay, was read to the court by Mr. Dionne at the request of this victim.
[5] Chantheary Ly suffers from loneliness, post-traumatic stress disorder, loss of financial well-being. She lost her husband’s business to bankruptcy. People with whom she associated before her husband died do not do so now.
[6] The plight of Ms. Ly is a tragedy.
[7] A Victim Impact Statement from Mao Kim was received as well. At his request, the statement was read to the court by Mr. Dionne.
[8] Mao Kim wrote about how the events of October 16, 2010 and the injuries he sustained have affected his life. He described the physical features of being wounded and needed long-term medical care with such devices as a colostomy. He endured financial hardship in not being able to have broken teeth repaired, not being able to pay for a colostomy for example. The whole experience brought an emotional toll upon Mao Kim living in fear, feeling worthless, sad at losing his friend Vandin Svay and even today being scared. He feels hopeless.
[9] His experiences demonstrate tragic developments in a person’s life.
Pre-Sentence Report
[10] The pre-sentence report is best described as a positive one for Mr. Srun. He has no criminal record. He came to Canada from Cambodia when he was 19 years of age and became a Canadian citizen in 2000. His family and employers reported that Mr. Srun is not known as a person who loses his self-control. He does not use illicit drugs. He consumes alcohol and sometimes drinks too much.
[11] Sinhem Srun married a woman in Cambodia. His brother advised the person preparing the pre-sentence report that Mr. Srun’s wife was a neighbour in Cambodia. He married her in Cambodia and has sponsored her to come to Canada; however, she still resides in Cambodia.
[12] Mr. Srun has had a girlfriend in Canada, but I conclude that friendship has not developed into a permanent relationship.
[13] The pre-sentence report noted that when Sinhem Srun is released into the community he might benefit from substance abuse counselling. I interpret this to be referencing consuming too much alcohol at times.
[14] The report also notes that there is no mental health issue for Sinhem Srun.
Background Facts of the Offences
[15] On October 16, 2010, there was a social party and dance at a restaurant in Markham. Those attending were Cambodian heritage persons. An entertainer known to the Cambodian community was performing at the party.
[16] An altercation developed between a group with whom Sinhem Srun attended and others who were with the victims. The victims were Vandin Svay and Mao Kim. Mr. Vandin Svay died as a result if knife wound injuries sustained in the fight. Mao Kim was stabbed in the abdomen and experienced a long recovery period.
[17] There was no evidence to demonstrate a history of friction between the two groups. There did not appear to be a motive for the offences being committed.
[18] Mr. Graham probably was accurate in his closing address to the jury when he suggested that this fighting was the result of two groups of young men who had been consuming a considerable amount of alcohol. In other words, there was too much liquor and too much testosterone.
[19] The deceased had four life-threatening wounds sustained from a sharp object. Dr. Rose was the pathologist who thought a knife rather than a broken beer bottle was the more likely object to cause these wounds. She did not rule out the possibility of a broken beer bottle but noted that such an object might not cause the less-ragged wounds sustained by both Vandin Svay and Mao Kim.
[20] There was a severance of the main artery in one arm of Vandin Svay. From this wound, blood would have been released outside the body of the deceased according to Dr. Rose. There were three puncture wounds to the lower back. All four wounds were life-threatening and could have led to the death of Vandin Svay.
[21] The jury had the opportunity to watch much of the fighting as recorded on security cameras at the mall where the restaurant was located. The jury saw Vandin Svay stagger along a corridor after the initial fight as he went towards an exit door. As the deceased went along the corridor, he appeared to be bleeding as a dark liquid spouted from his arm onto the floor.
[22] Had a tourniquet been applied to the arm wound, Vandin Svay may not have died from blood loss. Dr. Rose reported this opinion.
[23] The three wounds to the lower back of Vandin Svay resulted in internal bleeding.
[24] Mao Kim was stabbed in the abdomen. He told the jury that he saw his intestines protruding from his abdomen following the fight.
[25] Both injured persons were taken to a hospital by friends. They were transported in the back of a pick-up truck owned by Mao Kim.
[26] Vandin Svay died the night of the altercation.
[27] Mao Kim was hospitalized for many weeks and had a lengthy period of recovery.
[28] No one provided any information that might have explained to the jury why this fighting occurred.
Position of the Crown
[29] The Crown submits that the second degree murder parole ineligibility be for 15 – 17 years.
[30] The Crown asks that the sentence for attempted murder of Mao Kim be 10-12 years concurrent.
[31] The Crown accepts that both offences are part of the same overall activity so that they are treated together.
[32] Mr. Dionne submits that this murder and attempted murder involved some deliberate actions leading to the injuries sustained by both men. He does not agree that this unfortunate chain of events is only a party with too much alcohol consumption gone awry.
[33] Sinhem Srun came to the altercation with beer bottles in hand and a knife. The video shows his hand behind his back with a beer bottle. The evidence given to the jury is that a beer bottle or beer bottles were broken over the head of Mao Kim, and Sinhem Srun stabbed Vandin Svay as well as Mao Kim. The Defendant followed Vandin Svay along the hall to the area of an exit vestibule with his knife in hand. One can infer he was intending to use the knife when he met Vandin Svay at the end of the corridor.
[34] Mr. Dionne points to several cases in which the period of parole ineligibility was more than a minimum of 10 years. There were such factors as criminal records, encountering jail infractions while awaiting trial, and egregious facts. R. v. Palarajah[^1], R. v. Johnson-Lee[^2], R. v. Blandon[^3], and R. v. Krasniqi[^4] were referenced by the Crown.
[35] In R. v. Palarajah[^5], the Ontario Court of Appeal left parole ineligibility at 17 years. Baseball bats, an axe and a machete were involved. The victim was not the original target as the perpetrators of the assaults were seeking a friend of the victim. It was a brutal murder. The court noted the existence of high moral culpability was cited by the trial judge.
[36] In R. v. Johnson-Lee[^6], two persons were stabbed. One survived after being stabbed following a chase by the Defendant. The subject of the attempt murder was stabbed in the carotid artery following a stabbing without warning. In other words, this victim did not see the Defendant approaching. The murdered victim was stabbed in the heart and died soon after the injury was sustained. The Defendant arranged for a woman to provide a false alibi, for which she was incarcerated for a year. He had a criminal record. He had prior gang connections with the “Crips” gang. While in jail, he committed misconduct infractions including brewing his own alcohol. I was the sentencing judge in the Johnson-Lee trial and fixed the parole ineligibility at 15 years.
[37] In R. v. Blandon[^7], the accused person entered guilty pleas to second degree murder and attempted murder. The sentencing court imposed parole ineligibility on the second degree murder conviction for a period of 12 years noting that the attack had been on unarmed strangers on a public street.
[38] In R. v. Krasniqi[^8], there had been an ethnic conflict at a bar. Self-defence had been advanced to explain the stabbing, but that was not found to be the case. The Ontario Court of Appeal left the parole ineligibility at 14 years.
[39] Mr. Dionne submits that the facts for the actions of Sinhem Srun are in a more serious category such that he should not be able to apply for parole until 15-17 years from the time of his incarceration have passed.
[40] Further, the Crown submits that the sentence for the attempted murder conviction should be 10-12 years to be served concurrently with the second degree murder life sentence. Both stabbing events were accepted as being part of the same global event.
Position of the Defendant
[41] Mr. Graham submits that the parole ineligibility period for second degree murder be 10 years and that the attempted murder sanction be concurrent. The Defendant is a first time offender and should be treated as such.
[42] Sinhem Srun at the end of the case through his counsel accepted that his conduct could result in a finding of manslaughter.
[43] The jury for the most part did not recommend the range suggested by Mr. Dionne. There were 8 jurors making no recommendation, 1 recommending 10 years and 3 recommending 15 years for parole ineligibility.
[44] In a nutshell, counsel for Sinhem Srun states that the court is sentencing a man who has had some very difficult challenges in his life, growing up in a war-torn country. It is not easy to move to another country in which the person’s first language is not the most common language. He has a good work record. Mr. Graham points out that employers have described him as pleasant. Counsel states that this conduct is not common for Sinhem Srun.
[45] Sinhem Srun has been in custody for 3 years. He has not been a problem in the Central East Detention Centre whereas one could look at the Johnson-Lee[^9] decision where the accused man had in-custody infractions.
Sentencing Principles
[46] The Criminal Code provides guidance for sentences so that there might be consistency in sentencing of persons convicted of criminal offences. Section 718 takes into account disapproval of unlawful conduct along with the need to specifically discourage a person from committing criminal offences as well as to discourage people in general from such activity. In addition, rehabilitation and considerations for restitution as well as prior or lack of prior custodial experiences by a person are in play. If there are circumstances that mitigate or aggravate possible sanctions for criminal conduct, the sentencing court must address them. The overall purpose of sentencing is described as being a contribution to respect for the law and the maintenance of a just, peaceful and safe society.
Mitigating Factors Relating To The Offences Of The Offender
[47] In this case, the court has a 35 year old man who came to Canada from Cambodia at the age of 19 years. It is fair to say that he would have grown up during years of wartime strife in his country of birth. He came to Canada for a better life, no doubt.
[48] Sinhem Srun does not have any criminal record. He received his Canadian citizenship in 2000.
[49] Speaking of citizenship, the jury heard that part of the celebration for Vandin Svay on October 16, 2010 was his approval for Canadian citizenship. He too had come to Canada from Cambodia.
[50] Sinhem Srun appears to have tried to maintain employment in Canada. His former employers described him in the pre-sentence report as a good worker who got along well with others.
Aggravating Factors Relating To The Offences Or The Offender
[51] There are several specific circumstances outlined in section 718.2 of the Criminal Code. One applies to Sinhem Srun’s case. That is the impact of the offence upon the victim or victims.
[52] Here, the surviving widow of Vandin Svay is a victim. Her Victim Impact Statement explains how the loss of her husband has created a tremendous effect upon her. She has the rest of her life to live alone should she not develop a relationship with another person.
[53] Mao Kim is also a victim, having been stabbed in the abdomen. His Victim Impact Statement also tells how the events of this night and his injuries have affected his life.
[54] Fighting in general without a motive appears to be an aggravating circumstance here. To bring a knife to a social event and to use it several times on two other people reflects conduct that can only be described as negative. There is nothing positive flowing from this conduct of Sinhem Srun.
[55] He appears to have followed Vandin Svay along the corridor at least after the wound to the artery of the victim’s arm. He held his arm extended in front of him with the knife in that hand pointed in the direction he was following Vandin Svay. One might conclude that his mindset was that he was not finished with Vandin Svay. Anger out of control during this whole altercation can best be described as an aggravating factor.
The Recommendations Of The Jury For Parole Ineligibility For Second Degree Murder
[56] The jury were asked for their recommendations for how many years of his life sentence Sinhem Srun should serve before having the opportunity to apply for parole. Eight jurors made no recommendation. One recommended 10 years. Three recommended 15 years.
[57] The recommendations take into account the character of Mr. Srun, the nature of the offence and the circumstances surrounding the offence.
[58] The Criminal Code requires the jury to consider such recommendations.
The Sentence to be Imposed for Second Degree Murder and for Attempted Murder
[59] The starting point for Sinhem Srun is imprisonment for life because of the conviction for second degree murder. The question is how many years should he serve before having the opportunity to apply for parole. The sentence for attempted murder has a maximum period of life imprisonment.
[60] Mr. Graham submits that the parole ineligibility for the second degree murder conviction be no more than the minimum of ten years. He notes that most of the jurors were content to see ten years as appropriate.
[61] Mr. Dionne notes that Sinhem Srun’s conduct was more than minimal taking into account the fact that he stabbed two people. He did not demonstrate any concern for the outcome of stabbing the two victims. There ought to be more than ten years served prior to making a parole application because of this aggravating circumstance. Denunciation and general deterrence are important factors for this sentence hearing.
[62] The sentencing court also considers the character of Mr. Srun, the nature of the offence and the circumstances surrounding the offence when determining parole ineligibility.
[63] The positive factors of Sinhem Srun’s life lead one to consider less than the maximum custodial time before being allowed to apply for parole.
[64] The use of a weapon that can end the life of a person is a factor that carries an aggravating consideration. Stabbing Vandin Svay more than once reflects at the very least a casual consideration about the life or safety of the other person. Embarking on a fight at a social event attended by many people illustrates creating a danger to many people. Stabbing a second person is an additional serious factor.
[65] The victims here have continued to experience an impact upon their lives. The widow of Vandin Svay is alone. She may be alone for the rest of her life. Even if she develops a relationship with another person, she will always have the thoughts of seeing what happened on the night of October 16, 2010.
[66] Mao Kim was wounded physically in a significant manner. He saw his intestines coming out of his abdomen at the area of the knife cut. He was hospitalized and encountered an extensive recovery period.
[67] In light of Mr. Srun’s lack of a criminal record and taking into account the positive reports about how he intermingled with co-workers and family, one might conclude that specific deterrence is less of a factor.
[68] Denunciation of a person taking a knife to a party and using it as a weapon of attack on two other persons is an important consideration here. Coupled with denunciation is a need to convey a message to the community as a whole that such conduct is to be discouraged.
[69] The two offences occurred during the same altercation so that the attempted murder sentence will run concurrently to the second degree life without parole for 13 years. The attempted murder is not a subsequent offence. I note that the Crown agrees with the Defence as well.
[70] I am persuaded that in spite of the positive factors for Mr. Srun, the sanction should be more than ten years in prison before being permitted to apply for parole. The aggravating factors in these reasons demonstrate the need for imprisonment for more than ten years.
[71] The sentence for second degree murder will be life without parole eligibility for 13 years.
[72] Sinhem Srun has been in custody since October 25, 2010. The period of 13 years will be reached on October 24, 2023 at which time Mr. Srun may make an application for parole. Although Sinhem Srun may be granted parole in the future, his life sentence continues for the balance of his life.
[73] The sentence for attempted murder will be 8 years which will run concurrently to the life imprisonment sentence without parole for 13 years. In other words, the 8 years does not delay the parole eligibility beyond 13 years.
[74] There will be a weapons prohibition order for life pursuant to section 109 of the Criminal Code. Two offences with weapons were committed here.
[75] There will be a DNA order for each of the offences pursuant to section 487.051 of the Criminal Code.
Justice B. Glass
Released: December 23, 2013
[^1]: [2010] ONCA No. 4080 [^2]: [2009] O.J. No. 4860 [^3]: [2012] O.J. No. 2952 [^4]: 2012 ONCA 561, [2012] O.J. No. 4010 [^5]: Supra [^6]: Supra [^7]: Supra [^8]: Supra [^9]: Supra