ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-19-10000478-0000

DATE: 20210427

BETWEEN:

HER MAJESTY THE QUEEN

– and –

VAN-THEIN DANG

Lisa Jacek, for the Crown

Ines Gavran, for Mr. Dang

HEARD: March 11, 19, and 30, 2021

R.F. GOLDSTEIN J.

REASONS FOR SENTENCE

1. Overview

[1] On December 15, 2020 I convicted Mr. Dang of one count of sexual assault causing bodily harm and one count of threatening death. He now comes before the court for sentencing.

2. The Facts

(a) Circumstances of the offence

[2] J.N. was a student at George Brown College. She was 19 years old. She was renting a room in a house at 28 Fennings Street in Toronto. She had two roommates. One roommate was another female. The other roommate was Thien Van Dang. J.N. did not know Mr. Dang well. They were not friends and had no romantic relationship. J.N. did not even know Mr. Dang’s last name. J.N.’s mother had arranged the room for her using a Facebook group for Vietnamese students.

[3] On May 24, 2018 in the early morning hours J.N. was in her room. At about 3:00 am Mr. Dang called her name outside her bedroom door. Before she could answer he came into her room. He was wearing a t-shirt but no pants. Mr. Dang pushed J.N. down on her back on the bed. He tried to take control of her. He tried to kiss her by putting his mouth on her. She struggled and tried to fight him off. She bit his lip as they struggled. His lip was injured quite severely but he continued his assault. She told him that she did not want him to rape her. He said: “just one time.” J.N. testified that they were both speaking Vietnamese. She tried to calm him down by telling him he needed help and that he would regret his actions. She also tried to stop him by telling him that she had a sexually transmitted infection and that she was menstruating.

[4] Mr. Dang’s lip was dripping blood on J.N. She eventually had his blood on her chest, her neck, her face, and in her hair.

[5] Mr. Dang then tried to pull J.N. into the bathroom. J.N. did not want to go in, as she thought she might not be able to fight him off in it. Instead, she hung on to a railing that was outside the washroom. He held her wrists very tight. They did not end up inside the washroom. Instead, Mr. Dang dragged J.N. into the kitchen. She screamed loudly. He put his hands on her mouth and pushed her hands against the wall. She laid on the floor and was having difficulty breathing. She told him she couldn’t breathe and was afraid that she would die. Mr. Dang told her to keep quiet. He said that if she did not stop screaming, he would suffocate her. She said she would not scream. He then began rubbing his genitals on her outer thigh area. He then let her go when she promised not to tell anyone. He poured sesame salt on his wound.

[6] J.N. escaped by going back into her room. She locked the door. She gathered her passport and phone and escaped out of the window. She then texted her boyfriend to alert him. He was in Greece with his family, but he called the Toronto Police. J.N. testified that her wrists were sore and bruised. She also suffered scratches and bruising to her legs and face. She could not be sure whether the bruises to her legs were caused by climbing over fences to escape from her house or by Mr. Dang. I cannot find beyond a reasonable doubt that the bruises to her legs were caused by Mr. Dang. I am satisfied beyond a reasonable doubt that the injuries to her wrists were caused by Mr. Dang.

[7] After the assault Mr. Dang sent J.N. a Facebook message. He begged for J.N.’s forgiveness. He also told her that he loved her.

(b) Circumstances of the offender

[8] A pre-sentence report was prepared. Mr. Dang is a Vietnamese national. He grew up in Hanoi and reported to the probation officer that he had a close, supportive and caring relationship with his immediate and extended families. He reported as well that he had a strong bond with his grandmother. When she died he became depressed. He felt that his parents were very demanding, and he could not meet their expectations. His cousin, with whom he has been residing, reported that his family is very disappointed with him and feel that his crime was out of character.

[9] Mr. Dang came to Canada on a student visa. He studied English but did poorly. He has his cousin and his cousin’s family here. He otherwise has very little family in Canada, although he appears to have some friends.

(c) Impact on the victim and the community

[10] This assault was traumatizing for J.N. It is obvious why: she was forced to escape from a second story window at 3 am covered in blood from a man who had tried to rape her in her bedroom and then threatened to kill her. She fought back as if her life depended on it. She was clearly terrified. She was terrified because what happened to her was terrifying. Mr. Dang may not have succeeded in penetrating her, but that is beside the point: J.N.’s personal space and her sexual integrity were violently violated. She cannot bear things that remind her of the assault. She has had to live with it every day. She has had to bear expenses for therapy as a result of post-traumatic stress. She was admitted to the emergency room for ulcers related to stress. Her therapy and medical expenses have cost her thousands of dollars. J.N. is still afraid of Mr. Dang. She is afraid that she will encounter him on the streets of Toronto.

3. Legal Parameters

[11] The maximum penalty for sexual assault causing bodily harm contrary to s. 272(1)>(c) of the Criminal Code is 14 years.

[12] A conditional sentence is available for the offence of sexual assault causing bodily harm as a result of the Ontario Court of Appeal’s decision in R. v. Sharma, 2020 ONCA 478. In that case, the Court struck down s. 742.1(c) of the Criminal Code. That section prohibits a court from imposing a conditional sentence where the offence carries a maximum penalty of 14 years. I note that the Crown sought and received leave to appeal the decision to the Supreme Court of Canada, although the appeal has not yet been heard. The point, however, is moot. As I will explain later in these reasons, a penitentiary sentence is required in this case.

[13] The maximum penalty for the offence of threatening death contrary to s. 264.1(1)(a) of the Criminal Code is five years imprisonment.

4. Positions of the Crown and Defense

[14] The Crown’s position in this case is that a penitentiary sentence of at least 3 years is required. Crown counsel argues that this is case of stark horror, or close to stark horror. The sexual assault was terrifying and the effects on the victim were traumatizing.

[15] The defence position is that Mr. Dang should receive a suspended sentence and probation. Alternatively, he should receive a conditional sentence of six months. Defence counsel argues that at the time, Mr. Dang was suffering from cannabis intoxication and major depressive disorder. Those are significant mitigating factors. As well, Mr. Dang is truly remorseful and has apologized.

5. Case Law

[16] Both parties have submitted cases in support of their positions. I need only refer to some of them.

[17] Crown counsel strongly relied on R. v. Quashie, 2005 23208 (ON CA), 2005 CarswellOnt 2645, [2005] O.J. No. 2694, 198 C.C.C. (3d) 337 (C.A.). The victim was a 19-year old student. The offender and the victim were acquaintances. They agreed to meet to go to a movie. The offender came to the victim’s apartment to pick her up. He then forced his way into her bedroom where he forced her on the bed and digitally penetrated her. He then attempted to have intercourse. It was very painful for the victim. On a second occasion the victim agreed to meet the offender when he apologized. He again forced her on the bed and had intercourse with her. He told her that he was HIV positive. He also pointed a knife at he and told her not to get any smart ideas. The victim suffered genital injuries and psychological trauma. Her school performance declined. She was an international student and lost her scholarship. A jury convicted the offender of sexual assault and sexual assault causing bodily harm. The trial judge imposed a global sentence of five years notwithstanding that he was a young man with no criminal record. The Court of Appeal upheld the sentence.

[18] In R. v. P. (T.), 2006 CarswellOnt 656, [2006] O.J. No. 428 (Sup.Ct.) the offender forced oral and vaginal sex on the victim in her own home. He threatened to kill her if she did not comply. She was traumatized by the assault and still terrified of the offender. She was afraid that the offender might retaliate if she provided a victim impact statement. The offender was a young man with no criminal record, a history of employment, no history of bail violations, and a generally positive pre-sentence report. The court imposed a global sentence of four years imprisonment. In doing so, Glass J. stated at paras. 17 and 36:

Sexual assault coupled with physical violence and threats of more physical violence should the victim reveal what has happened are major crimes that require a sentence that will cast society's disdain for such conduct. These events occurred in the residence of R.L. A person's home is a place in which an individual should be safe from intrusion and terror…

The sentences reflect that the facts here are serious. If a person is going to enter another's residence and insist on receiving the sexual gratification that he wants at the time even though the other person says no, there must be a heavy price to pay. If an individual is going to remove forcefully the clothing of that other person, punch her and have sexual intercourse, there must be a sanction that takes that extra element into account when denouncing the event. Then, if one threatens to kill the victim in order to make sure that she does not report the assaults, the perpetrator must expect a sentence that repudiates all of the activities and discourages him from such activity ever again.

[19] In R. v. Herbert, 2016 ONSC 3665, [2016] O.J. No. 3408, the 44-year old offender and the 62-year old victim lived in the same apartment building. The offender grabbed the victim by the throat in the elevator, forced his way into her apartment, threatened to kill her dog, and sexually assaulted her. He had a long criminal record, an addiction to crack-cocaine, and very difficult personal circumstances. He expressed remorse for his actions and had taken steps towards rehabilitation. After a detailed analysis of the cases, R.J. Smith J. imposed a global sentence of five years.

[20] The defence relied on R. v. Burton, 2012 ONSC 5920. The offender sat down beside the victim on a bus. The offender opened a newspaper and pretended to read it. While he did so he placed his hand under her skirt and up her leg. Maranger J. of this Court upheld an absolute discharge granted by a judge of the Ontario Court of Justice.

[21] In R. v. Costa, 2013 ONSC 5778 the offender was a school janitor. The victim was the school librarian. On two occasions the offender touched the victim’s buttocks; on the third occasion he followed her into a storage room and attempted to kiss her and squeeze her breasts. The trial judge suspended the passing of sentence and placed the accused on probation. On appeal Trotter J. (as he then was) upheld the suspended sentence and refused to substitute a discharge. He commented at para. 23 that the sentence was “as lenient as it could be in the circumstances.”

[22] In R. v. Nwaiku, 2012 ONSC 21 the accused had gone to a downtown club with her boyfriend, some of her friends, and the accused. She was not feeling well and went to sleep in her boyfriend’s bed. She awoke to find the accused penetrating her vagina with his fingers. MacDonnell J. upheld a sentence of five months imprisonment.

[23] In R. v. Ukumu, 2020 ONSC 3645 the offender falsely represented to the victim and her companion that he was an Uber driver. He drove them to her home, and then used a pretext to lure the victim back to the car. He then pushed her into it, and sexually assaulted her, although he was unable to have sexual intercourse with her. She managed to escape from the car and call the police. The offender was a 26-year old first offender and refugee claimant facing possible deportation. Leach J. sentenced him to 12 months imprisonment and two years probation.

6. Mitigating and Aggravating Factors

(a) Mitigating Factors

[24] Ms. Gavran argued that the key mitigating factor is that Mr. Dang was undergoing cannabis intoxication and suffering from major depressive disorder at the time of the offence. I must be satisfied on a balance of probabilities that Mr. Dang was undergoing cannabis intoxication before I can accept it as a mitigating factor: Criminal Code, s. 724(3)(d).

[25] I do not accept that Mr. Dang was undergoing cannabis intoxication; and even if he were, I am not satisfied that it is a mitigating factor. I do agree that there were signs that Mr. Dang was undergoing some kind of mental health issue, but I do not accept that he was suffering from a major depressive disorder. Even if I am wrong about that, I would not find that either condition is a significant mitigating factor.

[26] The defence called two witnesses: Rob Peach, a social worker; and Dr. Yedishtra Naidoo, a forensic psychiatrist. The defence also relied on the pre-sentence report.

[27] Mr. Peach is a registered social worker and certified as a sex therapist. He was qualified as an expert in the rehabilitation of sex offenders. He has provided individual and couples therapy. He has also worked at the Centre For Addiction And Mental Health doing assessments for men who were on probation. While at CAMH he provided treatment, case management, and discharge planning to sexual offenders. He has assessed their readiness or capacity to participate in structured treatment programming. In his private practice he has also treated men who are charged with sexual offences.

[28] Mr. Peach assessed Mr. Dang. Mr. Peach testified that he has dealt with people who appeared dishonest. He testified that there are clients who don’t buy into therapy honestly with the intention of managing their problems. He said that Mr. Dang impressed him as open and honest. Mr. Peach said that Mr. Dang described in detail the circumstances around the offence. As he put it, his disclosures were consistent with the material that was provided about the offence, including the police reports. He also took a personal history and assessed Mr. Dang for the factors that contributed to the offence. He named these as social isolation, mental health issues, immigration, and adjustment to life in Canada. He also assessed strategies for Mr. Dang to use to obtain insight and avoid recidivism. Mr. Peach felt that Mr. Dang exhibited some symptoms of psychosis at the time of the offence – he was concerned people were plotting to harm him – but he did not present with psychosis at the time they met. Mr. Dang did describe symptoms of depression and increased anxiety and paranoia, but Mr. Peach was quick to say that he is not a psychiatrist or psychologist. Mr. Dang told him that he had used marijuana previously on three or four occasions. He had also used marijuana on the day of the offence. He described the impact as making him feel anxious, paranoid, and confused.

[29] Mr. Peach said that Mr. Dang showed empathy and concern for the victim. He said that Mr. Dang tried to be ethical and considerate of others. He believed that Mr. Dang had remorse and regret. He testified that Mr. Dang took full responsibility for the offence. I note that Mr. Dang also told the probation officer that he took full responsibility for the offence.

[30] In cross-examination, Mr. Peach agreed that it could be a cause of concern that Mr. Dang had told Dr. Naidoo that on the night of the offence he had smoked his first marijuana cigarette. Mr. Peach commented that people often under-report their substance abuse. Mr. Dang told Mr. Peach that he had approached J.N. seeking help. Mr. Peach also reported that Mr. Dang had told him that he entered the victim’s room, laid on top of her, and was not wearing pants. Crown counsel took Mr. Peach through the details of Mr. Dang’s disclsoures. According to Mr. Peach, Mr. Dang admitted to all of the actions testified to by J.N. that night. He admitted to lying against her thigh, dragging her into the kitchen area, and putting his hand over her mouth so she couldn’t breath – although according to Mr. Peach he did not say it was done with intention. He also admitted to threatening to hurt or kill J.N.

[31] Mr. Peach testified as well that he was not aware that Mr. Dang had told Dr. Naidoo that he had no memory of the sexual assault. He could not say if that would affect his view of Mr. Dang’s authenticity but that it would merit further investigation.

[32] Dr. Naido is a forensic psychiatrist. He is a staff pscychaitrist at St. Joseph’s Healthcare Hamilton. He is an assistant clinical professor at McMaster University in the Department of Psychiatry and Behavioral Neurosciences and director of the Forensic Psychiatry Clinical Fellowship Program at McMaster. Since 2019 he has been a correctional psychiatrist at the Niagara Detention Centre. He was also qualified to give expert evidence.

[33] Dr. Naidoo was retained to conduct a psychiatric evaluation of Mr. Dang “for the purpose of assessing potential mitigating factors related to the charge of sexual assault…” He conducted the evaluation largely based on Mr. Dang’s self-reporting of his history during a three-hour interview. He also interviewed, by telephone, Mr. Dang’s cousin and cousin’s husband, for 30 minutes. Dr. Naidoo also reviewed disclosure materials including police notes and reports, witness statements, and the preliminary inquiry transcript.

[34] Dr. Naidoo diagnosed Mr. Dang with Major Depressive Disorder and Cannabis Intoxication as defined by the Diagnostic and Statistical Manual, 5th Edition.

[35] Mr. Dang reported to Dr. Naidoo that he grew up in Vietnam with strict parents. He came to Canada and achieved good grades. In October 2017 his grandmother passed away in Vietnam and this appears to have been the trigger for depression. He described a sense of guilt since he wasn’t around for her. Mr. Dang reported that he stopped engaging with friends, slept much of day, and his grades slipped due to lack of focus. Dr. Naidoo found that he was exhibiting symptoms of a major depressive disorder. He also described some suicidal ideation.

[36] Regarding substance abuse, Mr. Dang reported that he had used cannabis on one occasion, the night of the index offense. Typically, cannabis use combined with depression can result in things like reduced motivation and increased irritability. Dr. Naidoo also referred to Mr. Dang’s level of THC. Mr. Dang’s cannabinoids screen after his release from custody was 107 nanograms/millilitre. According to Dr. Naidoo – who is not a toxicologist – 50 nanograms/millilitre is the level at which THC in the blood can be detected so 107 is quite high. In cross-examination Dr. Naidoo agreed that he could not do a “read back” to determine the level of cannabis intoxication at the time of the offence, such as a toxicologist might do with levels of alcohol in the bloodstream. He could not determine if the cannabis had been smoked before or after the sexual assault. Some of Mr. Dang’s disinhibited statements – such as asking J.N. to “save me” and speaking about the calm before the storm – could be consistent with cannabis intoxication. As well, Mr. Dang reported symptoms consistent with cannabis intoxication: disorientation, weakness in his legs, psychological fluctuation, and reduced pain tolerance – but also consistent with high levels of adrenalin.

[37] In cross-examination Dr. Naidoo was also asked if he would be surprised that Mr. Dang had reported previous cannabis use to Mr. Peach. Dr. Naidoo agreed that it raised a concern about Mr. Dang’s truthfulness. It did not change his opinion about Mr. Dang’s depression and other disorders. Dr. Naidoo did testify that it was possible Mr. Dang was under-reporting his cannabis use.

[38] Dr. Naidoo also stated that Mr. Dang had no memory of the events. He stated the following in his report:

He stated that he then felt as though “it wasn’t me at that time”, that “I couldn’t control my extremities.” He recalled telling her to help him. He stated he told her “I smoked cannabis, I felt suicidal, I tried to kill myself, so please help me.”

He did not recall taking off his pants. He did not recall putting on pants (he had shorts on). He only wanted someone to help him, to call police or ambulance, to stop him from committing suicide.

He recalled being confused. He stated he did not recall anything further. He did not recall her biting his lip. He did not recall feeing pain. He did not recall seeing blood. He did not recall pulling her to the bathroom. He did not recall pushing her against the floor. He did not recall a discourse where she told him to get help due to his lip (this was the point where he replied, “okay let’s go wash it” and he had stated she “has to help me”). He did not recall putting a hand on her face in the kitchen. He did not recall in the kitchen telling her to be quiet. He did not recall sending a Facebook message. When he was made aware of it, he stated he could not recall. He did not recall speaking to a roommate.

On significant prompting, he stated he could not recall.

[39] Mr. Dang’s self-reporting to Dr. Naidoo is, of course, completely at odds with his self-reporting to Mr. Peach. Given that Mr. Dang was able to relate the details of the assault to Mr. Peach, I conclude that he lied to Dr. Naidoo when he said that he had no memory of the sexual assault. Mr. Dang was also untruthful with Dr. Naidoo about the state of his grades. He told Dr. Naidoo that he had been doing well in school but that his grades slipped after his grandmother died. In fact, his grades were terrible throughout. As well, and more importantly given the diagnosis, Mr. Dang’s self-reporting of cannabis use was different to Mr. Peach than it was to Dr. Naidoo.

[40] In my view, Mr. Dang’s self-reporting has no credibility. Thus, the foundation for Dr. Naidoo’s opinion cannot be relied on. He told Dr. Naidoo, Mr. Peach, and the probation officer diametrically different versions of his recollection of the sexual assault. He told Dr. Naidoo and Mr. Peach different things about his marijuana use. These were not peripheral matters – these were matters that go to the foundation of Dr. Naidoo’s diagnosis.

[41] I therefore find that Dr. Naidoo’s diagnosis of cannabis-induced intoxication cannot be accepted. I also cannot the diagnosis of major depressive disorder. I want to be clear that I found Dr. Naidoo to be a credible, reliable, and impartial expert. I reject the diagnosis not because I have an issue with Dr. Naidoo, but because Mr. Dang’s self-reporting cannot be relied upon. Dr. Naidoo very fairly agreed in cross-examination that he would have concerns about Mr. Dang’s truthfulness if he had known that Mr. Dang had admitted to the offences to Mr. Peach. Dr. Naidoo also very fairly agreed that some of Mr. Dang’s actions – such as holding J.N. down on the bed and dragging her into the kitchen – showed a degree of motor coordination generally inconsistent with significant cannabis intoxication. Dr. Naidoo acknowledged that the psychiatric profession is not particularly good at detecting malingering. Moreover, I cannot accept that a cannabinoid level of 107 after Mr. Dang’s release from custody tells us anything reliable about his level at the time of the offence. Although Dr. Naidoo described a level of 107 as “high” he candidly admitted the limitations on his description. The only real evidence I have is that 107 is twice the detectable level of THC but not what that actually means in terms of impairment at the time of the sexual assault. J.N. and the arresting officers noticed no signs of intoxication or impairment by Mr. Dang.

[42] I note that Mr. Dang did not take the battery of psychological tests commonly administered to offenders.

[43] As I said in my reasons for conviction, I accept that Mr. Dang was having some kind of mental health issue on the night of the assault. His words “save me, save me” – as reported by J.N. – seemed to indicate a difficulty and an attempt to communicate.

[44] There was no defence of not criminally responsible advanced, and there was no fitness issue raised.

[45] But is whatever was happening to Mr. Dang a mitigating factor? In my view, the answer must be “no”. I am not qualified to draw a conclusion as to what that mental health issue was. Dr. Naidoo is qualified, but as I have indicated his diagnosis is undermined by the unreliability of Mr. Dang’s self-reporting. At the end of the day, whatever the mental health issue suffered by Mr. Dang that night, it did not prevent him from forming the mens rea to commit the offence of sexual assault causing bodily harm. It did not prevent him from having the presence of mind to threaten to kill J.N. if she did not stop screaming. It did not stop him from having the presence of mind to ask her not to report what happened. It also did not stop him from sending a Facebook message to her. The evidence that has been presented is not, in my view, sufficient to link whatever Mr. Dang was going through to a mitigating factor.

[46] Even if some degree of cannabis intoxication were involved – which I seriously doubt – I would still not find that it is a mitigating factor in this case. As Dr. Naidoo testified, cannabis usually has the opposite effect of making a person angry and violent.

[47] I believe Mr. Peach is an honest witness, but I have some difficulties with his conclusions as well. Respectfully, I found him less detached than Dr. Naidoo about Mr. Dang. I cannot accept Mr. Peach’s assertion that Mr. Dang is an ethical person who takes full responsibility for the offence and has empathy for the victim. I do not see the foundation for those assertions. Mr. Peach is clearly a highly empathetic professional who wants the best for his clients, but I think his opinion was coloured by sympathy for Mr. Dang. In any event his opinion is undermined because the foundation for it – Mr. Dang’s self-reporting – is undermined by his credibility problems.

[48] I do find it mitigating that Mr. Dang is a young man with no criminal record and much family support.

(b) Aggravating Factors

[49] The main aggravating feature here is the violent nature of the assault on J.N. As I have already pointed out, it was a terrifying assault carried out at 3:00 am of a woman alone in her private space. It is also aggravating that Mr. Dang attacked her at a time when the third roommate was not home. Mr. Dang knew that he was alone in the house with J.N. I infer that he chose the time and place of the attack deliberately.

[50] Crown counsel argued that Mr. Dang’s lies to Dr. Naidoo are an aggravating factor. She relied on R. v. Quashie, to which I have already referred. In that case, the offender was evaluated by a forensic psychiatrist, Dr. Bradford. The sentencing judge found that the offender had lied about important matters to Dr. Bradford. Gillese J.A. said this:

The sentencing judge found that the Crown had proven that the appellant had been dishonest with Dr. Bradford and others. She found that the risk of the appellant re-offending was not insignificant. In my view, there is no obligation upon a sentencing judge to advert to the requirements of W. (D.) when finding facts on sentencing. The evidence amply supported the aggravating factors relied upon by the sentencing judge.

[51] I am not certain that this case goes quite as far as Crown counsel suggests. Although I do agree that Mr. Dang lied to Dr. Naidoo, no doubt to make himself look better, I do not take it into account as an aggravating factor.

7. Principles of Sentencing

[52] The principles of sentencing are set out in Part XXIII of the Criminal Code. The fundamental principle is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 of the Criminal Code. I will have more to say about proportionality when I consider the actual sentence to impose. Other sentencing principles that are relevant in a sexual assault case with violence are specific and general deterrence, denunciation, and rehabilitation. These principles must be weighed in order to achieve a fit sentence.

8. Ancillary Orders

[53] I make the following orders:

• A DNA order pursuant to s. 487.051 of the Criminal Code;

• A prohibition order pursuant to s. 109 of the Criminal Code for life;

• A SOIRA order pursuant to s. 490.012 and s. 490.013(2)(b) of the Criminal Code for 20 years;

• A non-communication order with the victim and all members of her family pursuant to s. 743.21 of the Criminal Code.

9. Sentence Imposed

[54] A review of the cases suggests that the Court of Appeal has not set out an explicit range for cases involving a violent sexual assault in a person’s own space with a death threat to silence them. I am quite satisfied, however, that cases from the Court of Appeal establish that a significant penitentiary sentence is required here:

• R. v. Richards, 2010 ONCA 728: five-year global sentence;

• R. v. Warren, 1999 2205 (ON CA), [1999] O.J. No. 4591 (C.A.): three years global sentence for unlawfully confining two 16-year old girls in a car and fondling them;

• R. v. Quashie: already mentioned; five years global sentence for sexually assaulting the victim in her home, and then doing it again after apologizing;

• R. v. Nelson, 2014 ONCA 853, [2014] O.J. No. 5729; 2014 ONCA 853, 318 C.C.C. (3d) 476, 2014 CarswellOnt 16751: global sentence of five years for sexual assault, unlawful confinement of the victim in her home, and threatening her with scissors;

• R. v. Hejazie, 2018 ONCA 435, [2018] O.J. No. 2416: seven-year sentence for an offender who broke into a home, terrorized, sexually assaulted, and robbed two women.

[55] I simply cannot agree that Mr. Dang should be sentenced to a conditional sentence or a suspended sentence. A sentence of that nature would be manifestly unfit. Make no mistake, Mr. Dang committed a violent invasion of J.N.’s living space for the purpose of committing a sexual assault, put his hand on her mouth and prevented her from breathing, and then threatened to kill her if she didn’t stop screaming, all the while covering her in blood from his injury. The violent sexual assault in this case was nothing like the assaults in the cases relied on by the defence. I specifically note that three of the four cases I was referred to – R. v. Costa, R. v. Nwaiku, and R. v. Burton – were all prosecuted summarily. None of those cases approaches the violence and terror meted out to J.N. A suspended sentence or a sentence of six months served in the community would be utterly disproportionate to the gravity of the offence and the degree of responsibility of Mr. Dang.

[56] Mr. Dang will be deported. It is highly unlikely that he will ever obtain admission to this country again. I disagree that deportation should be seen as a punishment in this case. I am required to consider the collateral consequences of the sentence. Consideration of the collateral consequences, however, must not result in an unfit sentence: R. v. Pham 2013 SCC 15, [2013] 1 S.C.R. 739. As I have mentioned, a suspended sentence or a sentence of six months served in the community would be manifestly unfit.

[57] I disagree that Mr. Dang took full responsibility for his offence. Taking full responsibility for an offence may not always involve a guilty plea, but it usually does. A guilty plea is a communication to the victim and the community that the offender feels remorseful and apologizes for his or her actions. That did not happen here. It is not an aggravating factor that Mr. Dang had a full trial, with cross-examination of the victim – but he does not have the mitigating factor of a guilty plea. Instead, Mr. Dang told professionals hired to examine mitigating factors that he "took full responsibility". I am aware that Mr. Dang wrote a letter of apology to the victim. Mr. Peach testified that he told Mr. Dang that it is usually expected by the court that he would write a letter of apology. As the saying goes, it is a day late and a dollar short. I note that in his Facebook message – which he told Dr. Naidoo he had no memory of writing – Mr. Dang asked J.N. not to reveal what had happened. That is inconsistent with taking responsibility.

[58] Although I do not accept that Mr. Dang has taken responsibility for his actions, there is a role for the principle of rehabilitation. Mr. Dang is a young man with no previous brushes with the law and said by his relatives to be of good character. I hope that when he is released from custody and deported back to Vietnam that he will live his life in an honourable manner. I accept that this offence was unusual for him.

[59] Having said that, the principles of deterrence and especially denunciation must play an important role, given the nature of this crime and the effect on the victim. I adopt the following comment by Hamilton J.A. of the Manitoba Court of Appeal in R. v. T.(C.), 2006 MBCA 15, 205 C.C.C. (3d) 203 at para. 24:

Denunciation of unlawful conduct is a discrete principle of sentencing. It is one of the objectives of sentencing set out in s. 718 of the Criminal Code. Denunciation is "the communication of society's condemnation of the offender's conduct" (Lamer C.J. in R. v. Proulx, 2000 SCC 5 at para. 102). It is "a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values" (Lamer C.J. in R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500 at para. 81.) Denunciation is typically reserved for crimes that are particularly offensive or prevalent. When applicable, it usually prevails over the principle of rehabilitation.

[60] After weighing the aggravating and mitigating factors and the principles of sentencing, I sentence Mr. Dang to a global sentence of three years in the penitentiary. The sentence will be three years on the count of sexual assault causing bodily harm, and 6 months concurrent on the count of threatening death.

[61] Mr. Dang spent 8 days in custody. I will grant him credit at the statutory amount of 1.5:1, giving him 12 days of credit. He will therefore serve another two years, 11 months, and 18 days in custody.

Released: April 27, 2021

COURT FILE NO.: CR-19-10000478-0000

DATE: 20210427

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

VAN-THEIN DANG

REASONS FOR SENTENCE

R.F. Goldstein J.