COURT FILE NO.: CR-1810000388

DATE: 20201016

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BAO TON DIEP

Defendant

Thomas Goddard, for the Crown

Lori Anne Thomas and Adam Weisberg, for the Defendant

HEARD: September 16, 2020

PUBLICATION OF ANY INFORMATION TENDING TO REVEAL THE IDENTITY OF THE COMPLAINANT HEREIN IS PROHIBITED UNDER S. 486.4(1) OF THE CRIMINAL CODE OF CANADA

REASONS FOR SENTENCE

BYRNE J.

Introduction

[1] On November 28, 2019, Bao Ton Diep was found guilty after trial of sexual assaulting A.R. contrary to section 271 of the Criminal Code.

[2] The matter was put over to October 16, 2020 for sentencing.

Factual Overview

[3] The facts are set out in detail in my written judgment dated November 28, 2019. I do not intend to repeat them now. What follows is an abbreviated version for contextual purposes.

[4] On March 13, 2017, Mr. Diep invited Ms. A.R. over to his residence for dinner. They had met on a dating app and had their first in-person date on February 26, 2017. On March 13, Ms. A.R. decided to spend the night and slept alongside Mr. Diep on a mattress on the living room floor. In the morning, they engaged in mutual consensual kissing and touching. Mr. Diep then got on top of Ms. A.R. and held her down by her wrists. Ms. A.R. told Mr. Diep she did not want to have sex. Mr. Diep told her that if she did not want to have sex she could leave. Ms. A.R. attempted to squirm away but was unable to free herself from his grip. Mr. Diep proceeded to have forced vaginal intercourse with her, then flipped her onto her stomach and had forced vaginal intercourse with her again. Ms. A.R. left the residence in an Uber a short while later.

[5] In the days following the sexual assault, Ms. A.R. noticed bruising on both of her wrists.

Positions of Counsel

[6] Crown counsel takes the position that a custodial sentence of 28 months is warranted and justified in the circumstances.

[7] Defence counsel takes the position that a custodial sentence between 14 to 18 months followed by 3 years of probation is appropriate for this first-time offender.

[8] Both counsel provided me with caselaw in support of their respective positions, which I have thoroughly reviewed.

Legal Principles

[9] I will now turn to the applicable legal principles.

[10] In criminal proceedings, sentences are meant to reflect and reinforce the basic values in our society.

[11] It is often said that determining an appropriate sentence is one of the most difficult tasks for judges. This case is no exception.

[12] Sentencing is a highly individualized process that takes into account not only the caselaw, but also the circumstances of the offence and of the offender. I must also take into account the sentencing objectives as set out in the Criminal Code.

[13] How much emphasis a court places on each of these objectives will vary according to the nature of the crime and the circumstances of the offender. Our courts have repeatedly stressed that denunciation and deterrence must be given considerable weight in the sentencing for a major sexual assault. However, the paramountcy of these principles is not exclusive; specific deterrence and rehabilitation must also be considered, especially when the accused is a first-time offender, as is the case with Mr. Diep.

Victim Impact

[14] Ms. A.R. chose not to complete a victim impact statement. However, I had the opportunity to listen to and observe Ms. A.R. over the course of the four days that she testified. Although she was, for the most part, able to maintain her composure throughout her testimony, it was clear to me that this sexual assault had caused her significant emotional trauma that she will carry with her for the rest of her life.

Circumstances of the Offender

[15] Mr. Diep comes before this Court as a 31-year-old first-time offender. He was 28 years of age at the time of the offence.

[16] Mr. Diep came to Canada from Malaysia with his parents when he was two years old. I am told that by the time he was 10-years-old, Mr. Diep’s parents had separated due to violence in the household and he has had no contact with his father since. Mr. Diep has no memory of violence but has been told about it from his mother, with whom he currently resides. Mr. Diep has a brother who is three years younger than him and is a software developer.

[17] Most of Mr. Diep’s life has been dedicated to academics, where he has had great success. He is a graduate of the Rotman School of Business and interned for 1.5 years with IBM as a financial analyst. In 2018, Mr. Diep graduated from the University of Toronto Law School. While in law school, he was the associate editor for the school law review. This conviction has jettisoned Mr. Diep’s aspirations of a career in law and he is now left with serious financial debt that recently drove him to file for bankruptcy.

[18] Prior to trial, Mr. Diep had been working in British Columbia as a business analyst. Post-conviction, Mr. Diep has been living with his mother in Toronto. I am told he has been unsuccessful in finding work but has been taking some online courses in coding and data analysis.

[19] I am told that Mr. Diep has a girlfriend. The relationship is new—they have been together for 1.5 months. Mr. Diep’s girlfriend was not present in the courtroom, but I am told by counsel that she is aware of this conviction. Mr. Diep has chosen not to disclose any details about this offence to his mother due to the shame it would bring upon his family.

Mitigating and Aggravating Circumstances

[20] The most significant mitigating factor for Mr. Diep is the fact that he comes before this Court as a first-time offender, which sanctions that his sentence be seen through a lens of leniency. He does not, however, fall into the same category as a youthful first-time offender. Mr. Diep was a 28-year-old, highly educated, mature man when he committed this offence.

[21] Mr. Diep pleaded not guilty and to date has made no admission of responsibility. He is, of course, entitled to maintain his innocence and this is not an aggravating factor. But a denial of guilt does not necessarily prevent an offender from expressing remorse, which would be considered mitigating. In this case, there is a complete absence of remorse and, as such, Mr. Diep does not gain favor in that regard.

[22] I am mindful that this conviction has changed the trajectory of Mr. Diep’s life. However, he is an educated and intelligent man who can move forward and be successful if he so chooses.

[23] I do have concerns regarding Mr. Diep’s prospects for full rehabilitation. Mr. Diep appears to have very little personal support. He had one male friend with him in the courtroom but no family. I am told that for personal reasons he has not shared any details of this offence with his mother. I do not fault Mr. Diep for maintaining his privacy. However, family or community support goes a long way in ensuring full and complete rehabilitation. I fear that without the proper supports in place, Mr. Diep’s path to rehabilitation will be difficult.

[24] Moreover, I am left wondering if Mr. Diep has any degree of comprehension of the significant harm done by his decision to act on his desires without regard for Ms. A.R. on this occasion. True rehabilitation is grounded in understanding. The absence of evidence in this regard leaves me with serious concerns about Mr. Diep’s ability to rehabilitate himself. In my view, Mr. Diep has a lot of work to do to gain the necessary insight and understanding to truly appreciate the seriousness of this offence and the damage he has caused.

[25] The circumstances of the offence in and of itself are highly aggravating. Mr. Diep forcefully penetrated the victim’s vagina twice, once while she was on her back and then again when she was on her stomach. Mr. Diep completely ignored Ms. A.R.’s direction to stop and her attempts to squirm away. The force with which he held her down left her with bruising to both wrists. The sexual activity that the victim did consent to does not minimize or render the non-consensual intercourse less serious. Mr. Diep’s actions on this day amount to what can only be described as a major sexual assault.

[26] Defence counsel argues that Mr. Diep’s treatment of the victim, aside from the sexual assault, was not demeaning in nature. I disagree. Mr. Diep showed a complete disregard for Ms. A.R. when he ignored her request to not have sexual intercourse and then failed to acknowledge what he done after the fact. Mr. Diep’s behavior towards Ms. A.R. was both disrespectful and demeaning.

[27] Finally, I am mindful that Mr. Diep will be serving a custodial sentence during the Covid-19 pandemic. Although there is no evidence that Mr. Diep is vulnerable or at risk due to a pre-existing condition, I have taken into consideration that serving his sentence during this unprecedented time will be more difficult.

Summary

[28] After a thorough consideration of the law, the submissions of counsel and the unique circumstances that attach to this case, I find that a custodial sentence of two years in the penitentiary is warranted and justified.

Ancillary orders

(1) An order made under s. 109 of the Criminal Code prohibiting the defendant for the next ten years from owning, possessing or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance;

(2) An order pursuant to s. 490.012 of the Criminal Code requiring the defendant to comply with the Sex Offender Information Registration Act for a period of 20 years (being the applicable term provided for in s. 490.013(2)(b) of the Criminal Code);

(3) An order authorizing the taking from the defendant such bodily substances as are necessary for the purposes of a forensic DNA analysis, pursuant to s. 487.04 of the Criminal Code; and

(4) An order pursuant to s. 743.21 of the Criminal Code that the defendant shall not communicate directly or indirectly with the complainant while in custody.

Byrne J.

Released: October 16, 2020