COURT FILE NO.: CR-21-50000225-0000
DATE: 20220829
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
AUSTIN TAN LE
Shane Hobson and Brady Donohue, for the Crown
D. Sid Freeman, for Mr. Le
HEARD: June 29 and 30, 2022
M. Forestell J.:
Reasons for SENTENCE
I overview
[1] Tan ‘Austin’ Le and Hanh Nguyen were intimate partners. In the early morning hours of January 24, 2019, Mr. Le stabbed Ms. Nguyen to death.
[2] Mr. Le was charged with first degree murder. On June 6, 2022, after one week of pretrial applications and one day of evidence in a judge alone trial before me, Mr. Le entered a guilty plea to second degree murder. Sentencing submissions were made on June 29th and 30th of 2022.
[3] Mr. Le appears today for sentencing. He will be sentenced to the mandatory sentence of life imprisonment. The only issue is the period of parole ineligibility. The minimum period is 10 years, and the maximum is 25 years.
[4] The Crown’s position is that Mr. Le should be ineligible to apply for parole until he has served 16 to 17 years in prison. Counsel for Mr. Le submits that I should impose the minimum parole ineligibility period of 10 years.
[5] In these reasons I will review the circumstances of the offence and the circumstances of Mr. Le before turning to my analysis and conclusion.
II evidence
Circumstances of the Offence
[6] Mr. Le and Ms. Nguyen lived at 37 Mould Avenue in Toronto in a basement apartment for just over a year. The apartment was in the basement of the home owned by Ms. Nguyen’s estranged husband, Nhat Do. Nhat Do and Nathalie Do lived in the main part of the home. Nathalie Do is the teenage daughter of Mr. Do and Ms. Nguyen. Ms. Nguyen’s parents shared the basement apartment with Ms. Nguyen and Mr. Le. Ms. Nguyen’s estranged husband, Mr. Do, had agreed to permit Mr. Le to live in the basement of the home with Ms. Nguyen at the request of Ms. Nguyen.
[7] On January 23, 2019, Ms. Nguyen attempted to end her relationship with Mr. Le and told Mr. Le to leave the apartment. Mr. Le indicated that he would leave. Ms. Nguyen was sleeping in the bedroom of her daughter on January 23, 2019. At some point she went to the basement apartment. In the early morning hours of Thursday, January 24, 2019, Mr. Le and Ms. Nguyen were in the small bedroom that they shared in the basement apartment and they had an argument. Mr. Le formed the intent to kill Ms. Nguyen, retrieved a knife from the kitchen and stabbed Ms. Nguyen multiple times. Two stab wounds – to the heart and the lung – caused Ms. Nguyen’s death. However, there were 20 sharp force injuries to Ms. Nguyen’s neck, torso and extremities.
[8] After stabbing Ms. Nguyen, Mr. Le stabbed himself in the abdomen three times. He appeared to have attempted self-evisceration.
[9] At around 6:00 a.m. on January 24, 2019, Mr. Le called 911. He told the 911 operator that he was dying and that he had killed his girlfriend. He said, “I killed her, and I killed myself but I don’t know why I don’t die.” He told the operator that this occurred four hours previously.
[10] When first responders arrived at the home, Ms. Nguyen’s ex-husband Nhat Do let them into the house. Mr. Do was the first person to find the body of Ms. Nguyen. Ms. Nguyen’s daughter and parents were in the home at the time of the killing and when the body of Ms. Nguyen was found.
[11] At the time of the killing, Mr. Le had consumed alcohol but was aware of his surroundings and had an operating mind capable of forming the intent to kill.
Victim Impact
[12] Nhat Do, Nathalie Do and Chien Nguyen filed Victim Impact Statements. Nhat Do’s statement described the trouble he experienced dealing with his emotions and those of his daughter over the loss of his ex-wife and the mother of his child. Nathalie Do wrote of being weighed down by grief. She had difficulty focusing at school and she was afraid to sleep at night. Chien Nguyen described his ‘endless grief’ at the passing of his daughter. There is no sentence that I can impose that will compensate Hanh Nguyen’s family for their loss or that will relieve their grief. Hanh Nguyen lost her life and her future with her daughter and her parents. Those who loved her have lost her companionship and have been profoundly impacted by this murder. I have considered the impact of the offence on the victim and her family in arriving at the appropriate period of parole ineligibility.
Circumstances of Mr. Le
[13] Mr. Le is 43 years old. He had no criminal record before this offence. He is a citizen of the United States.
[14] Mr. Le was born in Vietnam and spent his early years in Vietnam. He moved to the United States with his parents and seven siblings when he was 11 or 12 years old. Mr. Le finished high school in the U.S. and attended university for one semester but left because of the cost. After leaving school, he was employed at various jobs until he opened a nail salon with his then wife. They operated the nail salon for about 10 years. Mr. Le was married for 15 years. Mr. Le has three children aged 13, 11 and 5 years.
[15] Mr. Le’s former wife and his mother-in-law and father-in-law filed letters expressing their support of Mr. Le and attesting to his prior good character.
[16] Mr. Le left his wife and children when he began his relationship with Ms. Nguyen. He moved to Canada to be with Ms. Nguyen. Both Mr. Le and Ms. Nguyen were gamblers. They met gambling and their relationship involved frequent gambling.
[17] Mr. Le did not work in Canada as he was not permitted to do so.
[18] Mr. Le has been in custody since his arrest on this offence. He was initially detained at the Toronto South Detention Centre. He was moved to the Toronto East Detention Centre in September of 2021. While he was in the Toronto South Detention Centre there were frequent lockdowns. In 2019 and early 2020 the lockdowns were caused by staff shortages. In March of 2020 the lockdowns and harsh conditions worsened with the COVID 19 pandemic. During lockdowns there is limited access to showers, telephones and exercise. The lockdowns were much less frequent and the conditions improved after his transfer to the Toronto East Detention Centre in September of 2021 but the continuing COVID 19 pandemic caused periodic cancellation of visits and video calls.
III analysis
[19] In determining the period of time before which Mr. Le will be eligible for parole, I have considered the factors set out in section 745.4 of the Criminal Code, R.S.C., 1985, c. C-46. Namely, the nature of the offence of second-degree murder, the circumstances surrounding the commission of this offence and the character of Mr. Le. In addition, I have considered the general principles of sentencing.
[20] All sentencing objectives are relevant to the period of parole ineligibility. They include the maintenance of public safety, the separation of Mr. Le from society, denunciation, general deterrence, specific deterrence and rehabilitation. However, in sentencing for second degree murder, rehabilitation has less weight than in sentencing for other offences.[^1]
[21] Denunciation and deterrence are important sentencing principles in all cases of violence against an intimate partner. The courts must strongly denounce all forms of intimate partner violence. The murder of an intimate partner is a tragically frequent outcome for victims who attempt to end relationships with jealous or violent partners.
[22] With respect to the range of parole ineligibility, as observed by Dambrot J. in R. v. Praljak,[^2] “it has become commonplace to increase the minimum period of parole [in]eligibility in domestic homicide cases beyond the ten year level, to reflect the seriousness of the breach of trust in such cases.”
[23] The range of parole ineligibility for the murder of an intimate partner was suggested in R. v. McKnight to be 12 to 15 years.[^3] Subsequent cases have articulated a range of 12 to 17 years.[^4]
[24] Most recently, in R. v. Ranhotra, the Court of Appeal upheld a period of parole ineligibility of 15 years and agreed that the upper end of the range was 17 years for the brutal murder of an unarmed intimate partner.[^5]
[25] I recognize that sentencing ranges are not ‘straitjackets’ and that sentencing is fact-specific and individualized.[^6]
[26] I must consider aggravating and mitigating circumstances related to the offence and the offender in arriving at the appropriate period of parole ineligibility.
[27] Section 718.2 of the Criminal Code provides that abuse of an intimate partner and abuse of a position of trust are aggravating factors on sentencing. The intentional killing of an intimate partner is the ultimate abuse of that partner. The murder of an intimate partner also generally involves the abuse of a position of trust. Both these aggravating factors are present in the case before me.
[28] There are other aggravating factors. A weapon was used against an unarmed, defenceless victim. The murder in this case must be characterized as a brutal killing. Ms. Nguyen was repeatedly stabbed and suffered 20 sharp force wounds. She suffered defensive wounds that demonstrate that she fought for her life until she was overpowered by Mr. Le. Mr. Le did not seek medical aid for Ms. Nguyen after inflicting the fatal wounds.
[29] The murder was committed in the home of Ms. Nguyen. This breached the trust not only of Ms. Nguyen but also of her parents, her estranged husband, Mr. Do, and her daughter. The commission of this murder impacted on the entire family of Ms. Nguyen — not only because of the terrible loss they have suffered with the death of Ms. Nguyen but the loss of their sense of safety and security in their home.
[30] There are also mitigating factors. Mr. Le entered a guilty plea. This demonstrates remorse. The guilty plea also saved the family members of the victim from having to testify at trial. Because Mr. Le entered a guilty plea to a reduced charge, the timing of the plea does not reduce its mitigating effect.
[31] It is also mitigating that Mr. Le has no prior criminal record. Finally, I have taken into account as a mitigating factor, the harsh conditions of Mr. Le’s presentence custody. He was incarcerated in difficult conditions through the COVID 19 pandemic.
[32] The significant aggravating factors take this case out of the lower range of parole ineligibility for second degree murder. Absent the mitigating factors of the guilty plea and the harsh conditions of presentence custody, I would have imposed a period of parole ineligibility at the upper end of the range identified by the Court of Appeal.
[33] Having considered all of the circumstances, I have concluded that the period of parole ineligibility should be 15 years.
IV conclusions
[34] I therefore sentence Mr. Le to life imprisonment with no eligibility for parole until he has served 15 years of that sentence. In addition, there will be a s. 109 weapons prohibition for life and a DNA order. There will also be an order under s. 743.21 that Mr. Le not communicate with Nathalie Do, Chien Nguyen, Li Go, Tanya Nguyen, Courtney Nguyen and Nhat Do unless contact is initiated in writing by one of those named individuals.
M. Forestell J.
Released: August 29, 2022
COURT FILE NO.: CR-21-50000225-0000
DATE: 20220829
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
AUSTIN TAN LE
Reasons for SENTENCE
M.Forestell J.
Released: August 29, 2022
[^1]: R. v. McKnight, 1999 CanLII 3717 (ON CA), [1999] O.J. No. 1321 (C.A.), at para. 39
[^2]: [2013] O.J. No. 269 (S.C.J.), at para. 17
[^3]: McKnight, at para. 48
[^4]: R. v. Wristen, 1999 CanLII 3824 (ON CA), [1999] 47 O.R. (3d) 66 (C.A.), leave to appeal to SCC refused [2000] S.C.C.A. No. 419; R. v. Czibulka, 2011 ONCA 82 at paras. 66-69; R. v. French, 2017 ONCA 460, at para. 31
[^5]: R. v. Ranhotra, 2022 ONCA 548
[^6]: R. v. Lacasse, 2015 SCC 64