IN THE SUPREME COURT OF BRITISH COLUMBIA
|
Citation: |
R. v. Nguyen, |
|
|
2017 BCSC 1669 |
Date: 20170815
Docket: 27143
Registry: Vancouver
Regina
v.
Kim Tuong Nguyen
Before: The Honourable Mr. Justice Ehrcke
Oral Reasons for Sentence
|
Counsel for the Crown: |
M.L. West |
|
Counsel for the Accused: |
J.B. Turner |
|
Place and Date of Hearing: |
Vancouver, B.C. |
|
Place and Date of Judgment: |
Vancouver, B.C. |
[1] THE COURT: On June 1, 2017, following a five-day judge-alone trial, Kim Tuong Nguyen was convicted of the manslaughter of Minh Doan. He now appears before me for the imposition of sentence.
[2] Pursuant to s. 236(b) of the Criminal Code, the maximum penalty prescribed by Parliament for manslaughter is life imprisonment. In practice, the sentences actually imposed by courts for manslaughter vary widely. This is due to the fact that the definition of the offence of manslaughter can encompass a very diverse range of circumstances reflecting a broad range of moral culpability. In every case of manslaughter, the accused must necessarily have caused the death of another human being by means of an unlawful act. That physical aspect of the crime or actus reus naturally makes this one of the most serious offences in our criminal law. The mental aspect or mens rea of manslaughter, however, is typically less egregious than in the case of murder, although some manslaughter cases have been described as near murder. Because individual cases of manslaughter can range from near accident to near murder, the sentences imposed have ranged from a suspended sentence (for example, R. v. Soper, [1986] B.C.J. No. 449 (C.A.); R. v. Owens, [1986] B.C.J. No. 401 (C.A.); R. v. Austin, [1986] B.C.J. No. 144 (C.A.) to life imprisonment (for example, R. v. McCabe, [1994] 54 B.C.A.C. 136)) depending on the circumstances of the offence and the background of the offender.
[3] In this case, the Crown submits that the appropriate sentence should be one of two to three years' imprisonment. The defence submits that the appropriate range of sentence is from about six months to two years. He submits that I should impose a sentence at the lowest end of that range.
[4] A full account of the circumstances of the offence may be found in my reasons for conviction indexed at 2017 BCSC 943.
[5] The accused, Kim Tuong Nguyen, and another Vietnamese man, Minh Doan, both worked at the same drywall insulation company. From time to time, each of them frequented the Kien Giang Billiard Hall located at 1210 Kingsway in Vancouver, British Columbia. On the evening of Friday, April 3, 2015, they had an argument inside the pool hall. Other patrons of the pool hall separated the two men and Minh Doan was escorted outside to the parking lot in front. He was advised to go home, but instead, he sat down on the concrete barrier in the parking lot just in front of the pool hall.
[6] The accused remained inside the pool hall, but about 10 minutes later, he walked out the front door and into the parking lot. When the two men saw each other, they again exchanged words. Like Mr. Doan, the accused ignored advice to go home. While bystanders tried to keep the two men apart, the accused climbed upon the concrete barrier in the parking lot near where Minh Doan was standing. The accused jumped or lunged from the concrete barrier towards Minh Doan, who fell backwards and struck his head on the pavement. He never regained consciousness. He was taken to Vancouver General Hospital at 8:51 p.m. where he died the next day at 4:30 p.m.
[7] Kim Nguyen was arrested and charged with manslaughter. He has been on bail since the time of the offence and has complied with his bail conditions.
[8] Although the Crown's theory was that the accused struck Minh Doan's face with his fist, I found on all the evidence that there was a reasonable doubt whether this was so. Nevertheless, I came to the conclusion that the accused had assaulted Minh Doan within the meaning of that term in s. 265(1)(b) of the Criminal Code and had thereby caused his death. I found at paras. 52 to 55:
[52] On a consideration of all the evidence in this case, including the testimony of the accused, I am satisfied that just before Minh Doan fell backwards and hit the pavement, the accused had climbed up onto the concrete barrier and that from there, he jumped or lunged toward Minh Doan, who was only a few feet away. If Minh Doan had not backed away in response, it is clear that the accused would have hit him. I agree with the Crown that in all the circumstances, this constituted an attempt or threat to apply force to Minh Doan, and that this caused Minh Doan to believe, on reasonable grounds, that the accused had the present ability to effect his purpose.
[53] I find, therefore, that the accused did commit the unlawful act of assault upon Minh Doan. Moreover, I am satisfied beyond a reasonable doubt that the accused’s act was objectively dangerous in the sense that a reasonable person in the same circumstances would have realized that he was exposing Minh Doan to a risk of bodily harm.
[54] I am also satisfied beyond a reasonable doubt the accused’s unlawful act caused the death of Minh Doan. It is clear that just before he fell, Minh Doan was stepping backwards to avoid being hit by the accused. If he had not been stepping backwards, he would not have fallen. The accused’s assault was a significant contributing cause of Minh Doan’s fall and the resulting death, and this remains the case even if there may have been other contributing causes, such as Minh Doan’s intoxication, or perhaps, the effects of the intervention of Hung Nguyen and others.
[55] I am also satisfied beyond a reasonable doubt that neither self-defence nor the defence of consent are made out in this case.
[9] The principles of sentencing have evolved in Canadian common law and are now largely codified in the Criminal Code. Section 718 of the Criminal Code provides that 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. As set out in s. 718, the objectives of sentencing include the denunciation of unlawful conduct, deterrence of the offender and others from committing offences, separation of the offender from society where necessary, rehabilitation of the offender, reparation for harm done, and promotion of a sense of responsibility in the offender including acknowledgment of the harm done.
[10] Section 718.1 articulates the most basic principle of sentencing, namely, that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[11] Section 718.2 sets out a number of specific principles. A sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances, and should be increased or reduced to account for aggravating or mitigating circumstances. An offender should not be deprived of liberty if a less restrictive sanction is appropriate, and all available sanctions other than imprisonment should be considered if they are reasonable and consistent with the harm done.
[12] Section 722 provides for the introduction of victim impact statements. On the sentencing proceedings in this case, I have heard and considered statements from the victim's wife and his daughter. I shall not recite in detail what each of them said, but their words make clear the devastating effects that they have suffered. Minh Doan's wife described a decline in her physical and mental health as the result of the loss of her life partner, whom she described as the right arm of their family. Minh Doan's daughter spoke of her feelings of loss, particularly at the time of her graduation. She laments the fact that her father will not be there to see her wedding or when she has children. She states that she constantly struggles to put on a brave face for the sake of her mother and other family members.
[13] Kim Tuong Nguyen is 42 years old. As set out in the pre-sentence report that was prepared by the Corrections Branch for this matter, he is one of six siblings born in Vietnam. He married in 2004 and moved to Vancouver in 2007. The couple divorced in 2009 and have no children. He has a Grade 10 education from Vietnam.
[14] Kim Nguyen presently lives in a shared home in Vancouver with two of his sisters. He feels that his employment prospects have been limited by his inability to speak English. For the last four months, he has been working for Greer Spray Foam Ltd. He says that he is financially stable and has no outstanding debts. The accused has no criminal record in Canada. His sister, Huong Nguyen, told the author of the pre-sentence report that the accused was never violent. She said he is not an angry person and does not typically resort to violence. She was shocked to hear of this offence and said her brother was likely "in the wrong place at the wrong time."
[15] Under the heading, "Substance Abuse," the author of the presentence report wrote:
The subject disclosed that during the years he frequented the Kien Giang billiard hall, he consumed alcohol with the other patrons on a regular basis and used marihuana, cocaine, and ecstasy "when [he] felt sad." Mr. Nguyen admits to consuming alcohol the night of the offence, but states he remembers most of the events that transpired that evening. The subject maintains he does not have any addiction issues and that substance misuse is not a problem for him.
Since being banned from the Kien Giang Billiards hall, the subject states he uses illicit substances and consumes alcohol less frequently.
[16] Aggravating factors include the fact that the tragic death of Minh Doan could easily have been avoided if the accused had followed the advice of his friends at the pool hall to simply leave the premises and go home. It is concerning, as well, that after Minh Doan had fallen to the pavement unconscious, Mr. Nguyen returned and tried to kick him on the ground. Mitigating factors in this case include the fact that Mr. Nguyen has no criminal record, does not have any evident propensity towards violence, and that this offence appears to be out of character. It is significant, as well, that he has obeyed his bail conditions and has maintained employment.
[17] As a final note, it is regrettable that Mr. Nguyen seems unable or unwilling to fully acknowledge his responsibility for causing the death of Minh Doan. Following his counsel's submissions, I explained to Mr. Nguyen that he was not required to say anything further, but that if he wanted to say something to the court, this was his opportunity. He made no expression of remorse at that time, but rather seemed to indicate that he felt he was not responsible. As any accused convicted of an offence has a right to challenge the conviction on appeal, it would be wrong to treat this as an aggravating circumstance, and I do not treat it as such. I simply note that an expression of remorse is often treated as a mitigating circumstance, and in this case, no such mitigating circumstance is present.
[18] By reason of the current wording of s. 742.1(1)(c), a conditional sentence order is no longer available as a sentencing option for manslaughter.
[19] Crown counsel has supplied the court with a book of sentencing authorities, which include R. v. Cottreau, [2011] O.J. No. 6245 (C.J.); R. v. Isenor, 2007 NSPC 70; R. v. Marchand, 2014 BCSC 2554; R. v. Brown, 2006 ONCJ 341; R. v. Huth, 2014 BCSC 570; R. v. Tabbara, [2009] O.J. No. 4397 (C.J.); R. v. Johnny, [1994] 46 B.C.A.C. 213. In each of the first six of those cases, the sentences ranged from two years less one day to four years. In R. v. Johnny, the Court of Appeal upheld a sentence of six months plus three years' probation. In that case, the accused, who was a 28-year-old Aboriginal offender with no criminal record, had pleaded guilty to manslaughter. The offence occurred after a drinking party where everyone was very intoxicated. In particular, the victim was so intoxicated that it made him more vulnerable to brain injury. When the accused saw the victim kissing his common law wife, he punched him once, knocking him down. The victim died several weeks later.
[20] Defence counsel has also referred me to the case of R. v. Pettigrew (1990), 56 C.C.C. (3d) 390 (B.C.C.A.). Ms. Pettigrew was a 35-year-old woman, with no criminal record, who unintentionally shot her husband with a rifle while intoxicated. The trial judge concluded that “the case was one of purposeless and reckless handling of a firearm, for which the only explanation was drunkenness,” and he imposed a sentence of 12 months. The Court of Appeal reduced the sentence to one of six months' imprisonment, plus probation for one year.
[21] I have reviewed all the cases submitted by both the Crown and the defence. They provide useful guidance in imposing a sentence that is comparable to those imposed on similar offenders in similar circumstances. At the end of the day, however, every case is to some extent unique, and the sentence I impose must be one that is a fit sentence for this particular offence and this particular offender.
[22] Both counsel referred to the decision of the Supreme Court of Canada in R. v. Pham, 2013 SCC 15, which discussed how immigration consequences may affect sentencing. The Supreme Court found that collateral immigration consequences may be a relevant factor to consider in sentencing, although they could not justify the imposition of a sentence that was otherwise unfit and inconsistent with the fundamental purpose and principles of sentencing identified in the Criminal Code. In the present case, I am advised that although Mr. Nguyen is a resident of Canada, he is not a Canadian citizen. I am told that as a result of his conviction, he is inadmissible to Canada and subject to deportation. However, if he receives a sentence of less than six months, he has the ability to make an appeal to the Immigration Appeal Division against the finding of inadmissibility.
[23] Mr. Nguyen, would you please stand.
[24] You have been convicted of manslaughter. That means that the Court has found that you caused the death of Minh Doan by means of the unlawful act of assault. Even though it is unclear whether or not you punched him, your act of jumping off the concrete barrier towards Mr. Doan was an unlawful act of assault regardless of whether you punched him or not. Your act of jumping towards him caused him to fall backwards, hit his head, and die. The Court has thus concluded that you are responsible for his death. It is for this offence of manslaughter that you are being sentenced today. You have caused terrible suffering to the family of Minh Doan. The sentence that I impose must be one that denounces your conduct, deters you and others from engaging in similar conduct, while at the same time promoting your rehabilitation.
[25] The circumstances of this offence are very unusual. If I had found that the Crown had proven beyond a reasonable doubt that you struck Mr. Doan with your fist, I would have concluded that the appropriate sentence must be one of at least three years. As the assault in this case did not involve a punch, however, and as you have no criminal record and apparently no propensity to violence, I am satisfied that this is one of those exceptional and truly rare cases in which a sentence near the bottom end of the range can appropriately be imposed. I sentence you to six months less one day imprisonment, plus probation for three years.
[26] The conditions of your probation order are those recommended by the author of the pre-sentence report, namely:
1. Report to a probation officer forthwith upon your release, and thereafter, as and when directed. If you are taken into custody while subject to this probation order, you will report within one business day of your release.
2. Notify your probation officer of your address and do not change that address without the prior written permission of your probation officer.
3. You are to abstain absolutely from the use or possession of alcohol or illegal drugs as defined in the Controlled Drugs and Substances Act.
4. You will have no contact directly or indirectly with Dung Phan, Phu Van, Hanh Thu Nguyen, Kim Dan Nguyen, and Hoang Richard Nguyen.
5. You are to attend for counselling or programs as directed by the probation officer and complete the counselling or programs to the satisfaction of the probation officer.
6. You will not enter the 1200 block of Kingsway, Vancouver, British Columbia, unless you are passing through on public transportation.
[27] In addition, the Crown seeks an order under s. 487.051 of the Criminal Code for the provision of samples for DNA analysis. Manslaughter is classified as a primary designated offence under s. 487.04 of the Criminal Code. I am satisfied that the impact of such an order on the offender's privacy and security of the person would not be grossly disproportionate to the public interest. There shall, therefore, be an order in Form 5.03 for the provision of samples for DNA analysis.
[28] As well, I order that Mr. Nguyen is prohibited under s. 109 of the Criminal Code from possessing any firearm, crossbow, restricted weapon, ammunition, and explosive substance for 10 years, and is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. Any such items that are currently in his possession must be surrendered within 24 hours.
[29] Finally, pursuant to s. 737 of the Criminal Code, there will be a victim fine surcharge of $100, payable within 14 days.
The Honourable Mr. Justice W.F. Ehrcke