2008 BCCA 252 R. v. Nguyen

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	*R. v. Nguyen,*
	2008 BCCA 252

Date: 20080617

Docket: CA035708

Between:

Regina

Appellant

And

Tuan Minh Nguyen

Respondent

Before:	The Honourable Mr. Justice Donald
	The Honourable Madam Justice Kirkpatrick
	The Honourable Mr. Justice Frankel

M.J. DeWitt-Van Oosten	Counsel for the Appellant
B.A. Martland and J.J. Saulnier	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
11 April 2008
Written Submissions Filed:	23 April, 26 May, and 2 June 2008
Place and Date of Judgment:	Vancouver, British Columbia
17 June 2008

Written Reasons by:

The Honourable Mr. Justice Frankel

Concurred in by:

The Honourable Mr. Justice Donald

The Honourable Madam Justice Kirkpatrick

Reasons for Judgment of the Honourable Mr. Justice Frankel:

INTRODUCTION

[1] A group of young men viciously attacked Michael Levy at a dance. The attack left Mr. Levy a quadriplegic, profoundly affecting not only his life, but the lives of his family members. He requires assistance with every aspect of his day-to-day life.

[2] Tuan Minh Nguyen was one of the attackers. He was convicted on charges of aggravated assault and possession of a weapon for a purpose dangerous to the public peace. He was also found guilty of assault with a weapon, but that charge was stayed on the basis of the rule against multiple convictions set out in R. v. Kienapple, [1975] 1 S.C.R. 729. A Youth Court judge sentenced Mr. Nguyen to a conditional sentence (i.e., a term of imprisonment served in the community), followed by probation. In addition, he was subjected to a mandatory firearms prohibition order, and ordered to provide a DNA sample.

[3] The Crown seeks leave to appeal this sentence. It says the conditional sentence is unfit, and asks that it be replaced with a conventional term of imprisonment.

[4] In my view, the nature of the attack on Mr. Levy – an unprovoked, callous beating of a defenceless victim without warning – requires a true custodial sentence. For the reasons that follow, I would grant leave and allow this appeal. I would further order that Mr. Nguyen serve his sentence in an open custody youth custody services facility.

Factual Background

[5] Mr. Ngyuen, who was 17 years and two months old at the time of the offences, was tried by Judge Ball in Youth Justice Court with three other persons. Mr. Nguyen, Robert Alexander Green, and Enrique Quintana were convicted following a 19-day trial. The fourth accused was acquitted. The judge’s reasons for conviction/acquittal are indexed as 2007 BCPC 294.

[6] Mr. Nguyen and Mr. Green were sentenced at the same time: 2007 BCPC 386. Mr. Quintana was sentenced later, due to a change in his counsel: 2008 BCPC 17. The sentencing judge granted the Crown’s application to have all three offenders sentenced as adults: Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 71 - 73.

[7] Mr. Green was sentenced to two years less one day, followed by three years’ probation. Having regard to the credit given by the sentencing judge for the time Mr. Green spent in custody prior to being sentenced, the in-custody aspect of this sentence is effectively three years. Mr. Nguyen received a 20-month conditional sentence, followed by two years’ probation.

[8] The sentencing judge determined that an appropriate effective sentence for Mr. Quintana was ten years. Taking into consideration the fact that Mr. Quintana was a youth being sentenced as an adult, and giving him credit for time already spent in custody, the judge sentenced him to eight years and three months. (Mr. Quintana has appealed this sentence. Nothing in these reasons should be taken as expressing any opinion on the fitness of that sentence.)

[9] The Crown and Mr. Nguyen substantially agree as to how events unfolded. A picture of what occurred emerges from the reasons for conviction/acquittal, and the two sentencing decisions. Some additional facts are disclosed in the report on Mr. Nguyen prepared by a psychologist for his sentencing hearing.

[10] On October 28, 2006, two teenage students rented Tynehead Community Hall in Surrey, British Columbia, for the purpose of holding a dance to celebrate Halloween, and the birthday of one of the students. The organizers of the party hired a security company to take money at the door, and to provide security services should the need arise. The dance was advertised by various means. No alcohol was permitted in the hall. However, many of those who attended drank alcohol before they arrived, or in the parking lot outside the hall. Some managed to bring hard liquor into the hall.

[11] How Mr. Nguyen came to be involved in this tragic event is disclosed in a post-conviction report prepared by a psychologist who interviewed him:

He stated that on the night the offences were committed, he attended a party at Tynehead Community Hall in the company of several friends (not his co-accused). At some point during the evening, Tony was approached by one of the co-accused (whom he has known since elementary school but with whom he reports he was associating less frequently than in the past because the friend had “gone gangsta”). This friend informed Tony that a youth who had “rushed” him (the co-accused) awhile ago was present at the dance and asked Tony if he was “down for” him, which Tony understood to mean willing to assist him in physically retaliating. Tony explained his agreement to support his friend as stemming from a combination of i) not wanting to let his friend down, ii) indignation at the severity of the previous attack on this friend (“he guilt tripped me, the friend who asked me to help . . . I’d seen him the day after he got rushed and he was looking bad”), and iii) on his then being of a mind-set that condoned the notion of physical retaliation (“I used to think it was okay to beat people up for a reason”).

[12] Mr. Nguyen told the psychologist he had consumed five to six shots of straight vodka prior to the attack on Mr. Levy. He also said he later learned that Mr. Levy had not been involved in any previous altercations, explaining that, “I’ve fought before, but not without reason”, and “I was stupid enough to fall into [the co-accused’s] trap”.

[13] The Crown’s statement contains an accurate summary of the attack and its effect on Mr. Levy (taken from the reasons for conviction/acquittal and the two sentencing reasons):

· around 11:00 p.m., Michael was surrounded by three or four persons acting in concert.

· they attacked him “without warning or provocation”.

· it was a “swarming”.

· Michael was struck with fists [by Nguyen] and a glass bottle [by Green].

· he was sprayed with bear spray or mace.

· the “swarming” caused Michael to bend forward and lower his head.

· he “quickly became defenceless”.

· the “back of his neck was exposed and became vulnerable”.

· he was struck three times about the head, neck and back with a hatchet or similar-edged weapon [by Quintana].

· the weapon hit Michael from behind.

· it cut through the skin and muscle surrounding his fifth cervical vertebrae.

· his spinal column was completely dissected and the fifth vertebrae was fractured into two pieces.

· he was immediately rendered a quadriplegic.

· Michael suffered two other wounds from the same weapon, one on his back and one on his side.

· the three blows with the hatchet were struck by Enrique Quintana.

· there was a very short time between the assault with fists, bottle, bear spray and the hatchet.

· the hatchet was not a “weapon of opportunity”. It was carried into the community hall by Quintana “for the purpose of attacking Michael Levy and causing serious harm” to him.

· Michael was the “intended target of the attack”.

· this was not a “general melee which got out of hand”.

· it was not a consensual fight.

· the assault against Michael was intentional and his injuries "clearly foreseeable by any reasonable person".

· following the attack, he fell to the floor and was kicked in the midsection by Quintana.

· the perpetrators ran from the hall without concern for Michael’s well-being.

· he was left “near death”. He was “bleeding profusely and the hall floor was stained by a significant amount of his blood as his body was dragged, by those seeking to provide first aid assistance, away from the area most effected by pepper spray”.

· it was by “a measure of millimetres and milligrams” that Michael remained alive.

· he will require extensive and ongoing medical treatment.

· prior to his injury, Michael hoped to enlist in the Armed Forces.

· at present he hopes to manage his pain.

· Michael’s current existence is lived hour-by-hour; day-by-day.

[14] The sentencing judge made no specific finding with regard to whether Mr. Nguyen knew that Mr. Quintana had a hatchet, or that Mr. Green had a bottle. At the hearing of this appeal, the Crown accepted that Mr. Nguyen did not know that the others involved possessed these weapons. It is not entirely clear whether Mr. Nguyen punched Mr. Levy before or after Mr. Green struck him with the bottle. In my view, nothing turns on this.

[15] At the sentencing hearing, Crown counsel submitted that both Mr. Nguyen and Mr. Green should be sentenced as adults. She took the position that an appropriate sentence for Mr. Nguyen was incarceration in the range of two years less one day, followed by up to three years’ probation. With respect to Mr. Green, she submitted that, having regard to pre-sentencing custody, he should receive either two years less one day, followed by up to three years’ probation, or three to three and one-half years’ incarceration.

[16] Defence counsel opposed their respective clients being sentenced as adults, on the basis that the sentencing regime under the Youth Criminal Justice Act was sufficient. Mr. Nguyen’s counsel sought a non-custodial youth sentence. In the alternative, he suggested an adult conditional sentence. Mr. Green’s counsel submitted that a youth sentence of one year would be appropriate. In the alternative, he suggested an adult conditional sentence, followed by probation.

[17] The sentencing judge described Mr. Nguyen’s background and personal circumstances as follows:

[31] Tuan Nguyen was born August 31, 1989, to a Vietnamese family in a refugee camp in Indonesia. He is one of five siblings. His family came to Canada in 1989. His parents have been quite industrious working long hours and have in the last five years developed their own business. All of his siblings are now capable of supporting themselves. Tuan Nguyen has yet to achieve that goal.

[32] Tuan Nguyen did well in school until Grade 9; however, he began thereafter to skip school and cut classes often neglecting to complete homework assignments. He was suspended on four occasions for fighting. He changed schools in Grade 10 but his performance as a student did not improve and his involvement in fringe activities continued. As a result of being charged in this case, he again changed schools due to potential conflicts with other students and is working on Grade 11 courses.

[33] Tuan Nguyen began working at a grocery store in 2005 but was fired for missing shifts and poor relationships with supervisors. Since July 2007 he has been successfully working 40 hours per week at a customer call centre.

(By reason of the provisions of the Youth Criminal Justice Act, the information referred to by the sentencing judge in paragraph 34 of his reasons should not have been before the Youth Court. I have, therefore, not set it out above, and have not considered it in deciding this appeal.)

[18] The sentencing judge referred to the fact that Mr. Nguyen had accepted responsibility for his actions, and expressed genuine remorse:

[35] Tuan Nguyen takes full responsibility for his involvement in the assault of Michael Levy. He stated to a report writer that he punched Michael Levy. Michael Levy grabbed him and the two were struggling with each other when both were struck with pepper spray or mace and they let go of each other. A video shown and exhibited in Court and the testimony of several witnesses confirmed attempts by Tony Nguyen to ameliorate the effects of pepper spray following the attack on Michael Levy.

[36] Once Tuan Nguyen discovered the serious injuries suffered by Michael Levy, Tuan Nguyen turned himself into the police and disclosed his involvement in the offences to the police.

[37] Tuan Nguyen has expressed genuine remorse for his part in the conduct that led to the devastating injuries suffered by Michael Levy and has expressed this remorse, both to the report writers and in open court evidence in Exhibit 3 [a letter written by Tuan Nguyen and filed] on the sentencing hearing. He continues to have strong family and community support displayed in letters filed as Exhibit 4 at the sentencing hearing.

[19] In holding that both Mr. Nguyen and Mr. Green should be sentenced as adults the sentencing judge said:

[53] On any view of the occurrences in this case, the crimes which occurred were serious violent crimes which have had devastating consequences for Michael Levy and his family, in fact, for our whole community. The assaultive conduct against the victim was clearly intentional and the injuries which occurred were clearly foreseeable by any reasonable person.

[54] I am satisfied that the Crown has demonstrated good reason why both of these accused should receive an adult sentence based on the seriousness and circumstances of the offence, the age, maturity, character, background and previous criminal record of these offenders, and other factors which are relevant. The test which is to be applied under the YCJA, section 72(1), is whether a youth sentence imposed in accordance with the principle of fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity and the purposes and principles of sentencing set out in section 38 has sufficient length to hold the young person accountable for his or her offending behaviour.

[55] Upon a review of the facts of this case and taking into account the carefully prepared submissions of counsel, I am satisfied that with respect to Robert Green and Tuan Nguyen a sentence under the YCJA is not of sufficient length to hold either of them accountable for the crimes which each of them have committed. Both offenders are eighteen years of age, and the maximum sentence for the offences of which they have been convicted is fourteen years under section 268(2) (Aggravated Assault) and under section 88(1) (Possession of a Weapon for a Dangerous Purpose) is a term of imprisonment not exceeding ten years when proceeded with by indictment as was the case at bar.

[20] The sentencing judge then turned to the question of what sentences to impose on Mr. Green and Mr. Nguyen. He began his consideration of this question as follows:

[57] The Court of Appeal in R. v. Pratt [2007 BCCA 206, 218 C.C.C. (3d) 298] has made it clear that notwithstanding the decision of a Youth Court judge to impose an adult sentence, the provisions of sections 3 and 38 of the YCJA continue to have application.

[58] Following those instructions of the Court of Appeal and having reviewed with care the reports filed and the submissions of counsel, I am satisfied that the range of sentence for these offenders is within the ranges of sentence set forth above [i.e., 16 months to six years] based on the very serious nature of these offence and the circumstances of the offenders.

[21] The sentencing judge found a number of common aggravating factors, namely, this was an unprovoked attack on a person who was defenceless in the circumstances; the attack took place on a happy occasion, a teen dance organized by students; and the offenders “joined forces” in an attack that resulted in catastrophic, and permanent, injuries to Mr. Levy. The judge also found that it was an aggravating factor that Mr. Nguyen had struck Mr. Levy with his fists, and that Mr. Green had smashed Mr. Levy in the head with a bottle. He also noted that at the time of the offences, both offenders were close to the 18-year upper age limit of the Youth Criminal Justice Act. The judge found that Mr. Nguyen was slightly less mature for his age than Mr. Green, and more easily led by others.

[22] The sentencing judge considered the “relative youth” of both Mr. Nguyen and Mr. Green, and the fact that this was their first serious violent offence to be mitigating factors. With respect to remorse as a mitigating factor, the judge noted that Mr. Nguyen had expressed “true remorse”. Mr. Green, on the other hand, had not shown remorse, and had not accepted responsibility for his actions.

[23] Having set out the above mentioned aggravating and mitigating factors, the sentencing judge stated:

[64] Upon a review of each of the factors set out in the sections of the YCJA noted above and the provisions of the Criminal Code applicable to sentencing particularly sections 718, 718.1 and 718.2 as well as the instructions of the Court of Appeal in R. v. Pratt, cited above, I am satisfied that the seriousness of the offence in this case demands the imposition of a custodial sentence for both and that is the least restrictive sanction which will hold these offenders accountable for the offences of which they have been convicted, and which will meet the requirements of the statutes noted above.

[24] The judge sentenced Mr. Green to two years less one day in custody, followed by three years’ probation. His reasons for doing so are set out in a single paragraph of his judgment: 65. The judge then dealt with Mr. Nguyen. Again, the entirety of his reasons are contained in one paragraph:

[67] With respect to Tuan Nguyen, I sentence him to a period of incarceration for a period of twenty months. I have considered the availability of a conditional sentence order pursuant to section 742.1 of the Criminal Code. I have concluded that he will serve his custodial sentence as a conditional sentence in the community. I was particularly impressed by the redevelopment over the past year of his relationships with his parents and siblings. I believe these relationships will assist in his rehabilitation. I warn Tuan Nguyen that should there be a meaningful breach of the terms of the conditional sentence order he can expect the Court to seriously consider the cancellation of the order and he will in such circumstance serve any balance of the conditional sentence order in a real jail. It is my present intention that the statutory terms will apply to the conditional sentence order and there will be a curfew for the first ten months of that order. Otherwise I will invite counsel’s submissions to assist in fixing the balance of the conditions of the order.

[25] After hearing from counsel, the sentencing judge ordered Mr. Nguyen to abide by a number of conditions as part of the conditional sentence order. These included reporting to a supervisor, a 6:00 p.m. to 4:00 a.m. curfew, a requirement that he undergo counselling as directed by his supervisor, and a requirement that he complete 50 hours of community work service within the first 18 months of the conditional sentence, in a program dedicated to providing assistance to persons with disabilities, if possible.

ANALYSIS

Standard of Review

[26] Section 687(1) of the Criminal Code, R.S.C. 1985, c. C-46, directs that the focus of a sentence appeal is on the “fitness” of the sentence under review. The standard of review on a sentence appeal was the subject of some, albeit limited, debate at the hearing of this matter. That debate centered on whether an error in principle by a sentencing judge entitles this Court to consider sentencing anew, or whether, even in the face of an error in principle, this Court can only interfere if it finds that the sentence imposed is demonstrably unfit. In the end, the Crown took the position that the issue before this Court is whether the sentence imposed in this case is fit having regard to the circumstances of the offence and the offender. I have proceeded on this basis.

Adequacy of Reasons

[27] In advancing its arguments on the issue of fitness, the Crown submits that the sentencing judge failed to engage in any substantive analysis with respect to whether a conditional sentence is appropriate in this case and, more particularly, whether it is consistent with the purpose and principles of sentencing. The Crown says the reasons are deficient in that the judge made no mention of proportionality, and failed to consider either the gravity of the offence, or Mr. Nguyen’s level of participation and moral blameworthiness. Mr. Nguyen, on the other hand, submits that the judge did consider these matters, and points to that portion of the reasons dealing with the question of whether Mr. Nguyen and Mr. Green should be sentenced as adult offenders.

[28] In my view, the Crown is correct. The single paragraph in the sentencing judge’s reasons dealing with the imposition of a conditional sentence (reproduced in paragraph 24 above) sheds little, if any, light on how he decided that such a sentence was appropriate. The words used merely express a conclusion.

[29] Sentencing is one of the few situations where there is a statutory requirement to give reasons. Section 726.2 of the Code reads:

When imposing a sentence, a court shall state the terms of the sentence imposed, and the reasons for it, and enter those terms and reasons into the record of the proceedings.

[Emphasis added]

[30] As Mr. Justice Binnie stated in R. v Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, s. 726.2 “facilitate[s] appellate review of the correctness of … [a] sentence”: para. 20. However, in speaking of reasons for judgment generally, he also stated that they are “the primary mechanism by which judges account to the parties and to the public for the decisions they render”: para. 15.

[31] I consider it to be an error in principle for a judge to fail to provide some explanation for why a particular sentence is being imposed. Offenders, those affected by criminal activity, and the general public, are entitled to know why a judge considers a particular punishment appropriate. With respect to the public, the following from the judgment of Mr. Justice La Forest in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, is apt (at para. 88):

In any criminal case, the sentencing process serves the critically important social function of permitting the public to determine what punishment fits a given crime, and whether sentences reflect consistency and proportionality.

[32] This is not to suggest that inadequate sentencing reasons will invariably result in a successful appeal. The ultimate question on such an appeal is the fitness of the sentence imposed. Even though the reasons being reviewed are deficient, an appellate court may well decide, having regard to the circumstances of the offence and the offender, that the sentence imposed is nevertheless a fit one.

Applicable Sentencing Principles

[33] The interplay between the principles of sentencing set out in the Criminal Code and the Youth Criminal Justice Act, when a youth is sentenced as an adult, is discussed in R. v. Pratt, 2007 BCCA 206, 218 C.C.C. (3d) 298. In that case Madam Justice Saunders held that, in addition to the principles set out in Part XXIII of the Code, a court sentencing a youth as an adult must have regard to the “Declaration of Principle” in s. 3 of the Youth Criminal Justice Act. What this means is that a court must consider adult sentencing principles which would otherwise be inapplicable to a youth: para. 55. At the same time, regard must be had to the youth sentencing principles such as rehabilitation and reintegration, and “fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity”: para. 56. However, although “the fact of youth creates a ‘discount’ from the adult tariff of sanctions”, the likelihood of such a discount is reduced the closer the offender is to the cut-off age in the definition of “young person”: para. 57.

[34] In this case, the sentencing judge misread Pratt. Although he correctly noted in both paragraphs 52 and 57 of his reasons, that Pratt holds that s. 3 of the Youth Criminal Justice Act applies when a youth is being sentenced as an adult, he also stated, erroneously, that regard must also be had to the sentencing principles and factors set out in s. 38 of the Act. It is, however, clear from s. 38(1), that s. 38 only applies to youth sentences imposed under s. 42 of the Youth Criminal Justice Act and not to adult sentences imposed under s. 73 of the Act. It was, accordingly, an error in principle for the judge to have had regard to s. 38 in sentencing Mr. Nguyen. Whether the sentence he imposed is fit is the question to which I now turn.

Is a Conditional Sentence Fit?

[35] The Crown’s position is that a conditional sentence is not proportionate to the gravity of the offence committed by Mr. Nguyen, and fails to give effect to the principles of deterrence and denunciation. In response, Mr. Nguyen submits that the sentence imposed is appropriate for what he says is his “minor involvement in a very major crime”. He says that, although deterrence and denunciation are to be considered, they play a less significant role when a youth is being sentenced as an adult. Indeed, he questions the logic behind the principle of general deterrence. He also says that the publicity his case has received represents, in and of itself, “a profound form of public denunciation”, and sends a sufficient “deterrent message”. Lastly, he says that his genuine expression of remorse is a significant mitigating factor.

[36] To begin, I do not consider Mr. Nguyen’s involvement in the attack to be minimal. Even though Mr. Nguyen’s physical involvement was limited to punching Mr. Levy, he was an integral participant in a “swarming”, i.e., an unprovoked, violent, and cowardly attack on a defenceless person: R. v. N.(C.) (2006), 213 C.C.C. (3d) 56 (Ont. C.A.) at para. 26. While Mr. Nguyen did not know that Mr. Green and Mr. Quintana had weapons, he nonetheless agreed to join with them in beating up Mr. Levy, and he must have known that it was likely that Mr. Levy would suffer some degree of bodily harm. While undoubtedly it may be appropriate in swarming cases to distinguish, to some degree, those who used weapons from those who did not, it is not open to Mr. Nyugen to minimize his culpability “by offering his individual involvement alone, divorced from the context of the collective action”: R. v. M.(J.S.), 2005 BCCA 417, 200 C.C.C. (3d) 400 at para. 64; see also R. v. Helm, 2006 BCCA 240, 210 C.C.C. (3d) 218 at para. 4. Those who choose to participate in gang-like violence cannot expect to have their culpability determined without regard to the totality of the harm inflicted. Each is accountable for the collective action.

[37] The principles that inform a decision with respect to the imposition of a conditional sentence under s. 742.1 of the Code are discussed in R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5. There is no question that Mr. Nguyen meets some of the criteria. However, a conditional sentence is not appropriate for him as it wholly fails to give effect to two codified objectives of sentencing which are particularly pressing in this case, namely, denunciation and deterrence: s. 718(a), (b).

[38] In Proulx, Chief Justice Lamer recognized that in some cases a conditional sentence, although otherwise available, would not be appropriate. With respect to denunciation, he stated, in part:

102 Denunciation is the communication of society's condemnation of the offender's conduct. In M.(C.A.), supra, at para. 81, I wrote:

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: “society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass”.

. . .

106 The amount of denunciation provided by a conditional sentence will be heavily dependent on the circumstances of the offender, the nature of the conditions imposed, and the community in which the sentence is to be served. As a general matter, the more serious the offence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be. However, there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct.

[Emphasis added]

[39] The Chief Justice also opined that, in some cases, the need for deterrence will be of prime importance:

107 Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence. Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration: see Wismayer, supra, at p. 36. The empirical evidence suggests that the deterrent effect of incarceration is uncertain: see generally Sentencing Reform: A Canadian Approach, supra, at pp. 136-37. Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences. There is also the possibility of deterrence through the use of community service orders, including those in which the offender may be obliged to speak to members of the community about the evils of the particular criminal conduct in which he or she engaged, assuming the offender was amenable to such a condition. Nevertheless, there may be circumstances in which the need for deterrence will warrant incarceration. This will depend in part on whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect, as well as on the circumstances of the community in which the offences were committed.

[Emphasis added]

[40] Swarming cases require a strong denunciatory message; one that reflects society’s condemnation of the offender’s conduct. Such conduct deserves significant judicial disapprobation, particularly where the victim has suffered serious and permanent injury. Although, as mentioned in Proulx (at para. 105), there is a stigma associated with a conditional sentence, that stigma is not sufficient to appropriately censure the type of behaviour engaged in by Mr. Nguyen. Neither do I consider the fact that the media is free to report on Mr. Nguyen’s case because he was sentenced as an adult, to be a sufficient expression of society’s abhorrence of his crimes. In this regard, I agree with Judge de Couto’s remarks in R. v. N.A.D., 2006 BCPC 309. In imposing a custodial sentence for aggravated assault he stated:

[23] There is no question but that what the accused did was cowardly, violent and vicious. It was a random callous beating of a young man who had much to offer and much to live for. The likelihood of such a future would appear to have been taken from him. The brutality of the accused’s actions that night offends the very core of our societal values that we hold dear in our civilized world. It was a group attack upon two innocent and defenceless teens, followed by a severe beating by the accused on MP with an aluminium baseball bat. What the accused did that night is wholly unacceptable.

[24] I pause here to note that this conduct and group mentality and behaviour is becoming only too prevalent in our communities. It is bullying and cowardly, and a strong message must be sent to the youths within our communities that such conduct cannot, should not and will not be tolerated nor condoned by the courts.

[Emphasis added]

[41] Like Judge de Couto in N.A.D., and Mr. Justice Pugsley in R. v. Cormier (1994), 130 N.S.R. (2d) 327 (C.A.) (at para. 37(7)), I am prepared to take judicial notice of the increasing number of swarming incidents involving teenagers and young adults. It is important that the courts continue to act to denounce and deter those who are willing to become involved in this type of criminal activity. Those who band together to attack innocent persons need to know that, if convicted, they likely will be incarcerated.

[42] With respect to deterrence, Mr. Nguyen submits that the concept of general deterrence is of questionable value, particularly with respect to youthful offenders. I do not agree. The value of general deterrence has long been recognized by the Supreme Court of Canada and appellate courts, and Parliament has declared it to be one of the objectives of sentencing: R. v. Johnson (1996), 112 C.C.C. (3d) 225 (B.C.C.A.) at para. 29. Although, as held by Madam Justice Charron in R. v. B.W.P., R. v. B.V.N., [2006] 1 S.C.R. 941, 2006 SCC 27 (at paras. 34, 41), Parliament deliberately excluded specific and general deterrence in sentencing under the Youth Criminal Justice Act, they are factors to be considered when a youth is being sentenced as an adult: Pratt at para. 55.

[43] Given that deterrence is a factor in the case at bar, it is noteworthy that the Supreme Court has accepted the efficacy of general deterrence with respect to youthful offenders. In R. v. M.(J.J.), [1993] 2 S.C.R. 421, a case decided under the former Young Offenders Act, R.S.C. 1985, c. Y-1, repealed, S.C. 2002, c. 1, s. 199, Mr. Justice Cory said this (at 434):

There is reason to believe that Young Offenders Act dispositions can have an effective deterrent effect. The crimes committed by the young tend to be a group activity. The group lends support and assistance to the prime offenders. The criminological literature is clear that about 80 percent of juvenile delinquency is a group activity, whether as part of an organized gang or with an informal group of accomplices. See Maurice Cusson in Why delinquency? (1983), at pp. 138-39, and Franklin E. Zimring “Kids, Groups and Crime” (1981), 72 J. Crim. L. & Criminology 867. If the activity of the group is criminal then the disposition imposed on an individual member of the group should be such that it will deter other members of the group. For example the sentence imposed on one member of a “swarming group” should serve to deter others in the gang.

[Emphasis added]

See also: R. v. H.J.H., 2002 BCCA 647, 175 B.C.A.C. 40 at para.16.

[44] Mr. Nguyen also submits, with reference to the several assessment reports that were before the sentencing judge, that he has a reduced level of maturity which should be treated as a mitigating factor on sentencing. I do not accept this contention, at least with respect to the issue of the appropriateness of a conditional sentence. While Mr. Nguyen may not have possessed, to use the language in one of the reports, “the usual maturity and discrimination that older teens show”, he nonetheless made a choice to involve himself with a peer group that engaged in antisocial activity. There is no suggestion he was forced or coerced to do so, and no suggestion that, at the age of 17 years, he was unaware of the risks he was taking. Why he involved himself with this group is explained in another of the reports:

[I]t is probable (and Tony confirms this indirectly) that the more his parents objected to his life choices the more Tony felt both drawn toward his peers and more distant from his family, with the result that he came to further choose a path where antisocial pursuits and attitudes, and a gangster-like culture where one stands up for one’s associates (including avenging past perceived wrongs) were the norm. Tony also acknowledges having enjoyed a sense of excitement from life in the “fast lane,” though he denies currently feeling this way.

[Emphasis added]

[45] Mr. Nguyen’s reasons for becoming involved in a “gangster-like culture” serve only to highlight the need to place emphasis on general deterrence. At 17 years of age, he was old enough to appreciate right from wrong, and to understand the risks of, and the consequential harm that can result from, gang-style violence. Persons like Mr. Nguyen are the very ones who need to know that criminal law courts take swarming offences seriously, and will respond by meting out commensurate punishments.

[46] Cases of this sort require the courts to send a strong and unequivocal message about the consequences of participating in group violence. The emphasis must be on denunciation and deterrence. A non-conventional custodial sentence does not meet those needs and, therefore, the sentence imposed on Mr. Nguyen is not a fit one.

Should Mr. Nguyen Now Be Incarcerated?

[47] Mr. Nguyen submits, in the alternative, that in the event this Court finds his conditional sentence unfit, it should nonetheless dismiss this appeal as it would be unjust to now incarcerate him. He points to the fact that, as of the date of the hearing of this appeal, he has abided by the terms of the conditional sentence order for four months. He says putting him into custody would be of no benefit to him.

[48] It is true that appellate courts are sometimes reluctant to incarcerate an offender who received a non-custodial sentence in the first instance, when considerable time has passed between the imposition of the sentence and the hearing of the appeal, and the offender has taken significant steps towards rehabilitation. This recently occurred in R. v. Charlie, 2008 BCCA 44 at paras. 31 - 35; see also, R. v. Andrew, 2008 BCCA 141 at para. 20. However, where the Crown moves with alacrity to appeal an unfit sentence there is no reason why this Court should decline to correct that error. This is such a case.

[49] This Court has long been of the view that Crown sentence appeals, particularly ones in which a non-custodial sentence is being appealed, should be brought on expeditiously. Indeed, the Court has indicated that, although some efforts should be made to accommodate defence counsel, in the event an early date cannot be arranged by agreement, then it is open to the Crown to obtain a hearing date unilaterally: R. v. Peterson, [1985] B.C.J. No. 1960 (C.A.) (QL) at paras. 9, 12.

[50] In this case, the Crown acted expeditiously. Mr. Nguyen was sentenced on December 10, 2007. On January 8, 2008, the Crown filed a notice of application for leave to appeal. At the same time, it filed a notice of hearing, setting the matter down to be heard on February 14, 2008. Mr. Nguyen was personally served with both notices on January 8, 2008. On February 6, 2008, Mr. Martland, who had not acted for Mr. Nguyen in the Youth Justice Court, wrote to the registry advising that he had been retained on the appeal. Because Mr. Martland was not available to deal with the appeal until the second week of April, Crown counsel, Ms. DeWitt-Van Oosten, agreed to adjourn the hearing until April 11, 2008.

[51] In my view, counsel acted appropriately. The Crown obtained an early hearing date. Mr. Nguyen decided to retain Mr. Martland. It is understandable that Mr. Martland was not in a position to deal with the matter on short notice. To accommodate Mr. Martland, Ms. DeWitt-Van Oosten agreed to a brief, but reasonable, adjournment. In the end, the appeal was heard four months after Mr. Nguyen was sentenced.

[52] The nature of the appellate process is that it takes time. However, this Court has always endeavoured to accommodate matters of some urgency. In sentence appeals of an urgent nature, a hearing date within two months of the filing of the notice of application for leave to appeal can usually be obtained. However, as occurred in this case, it is also not unusual for the initial date to be postponed to accommodate defence counsel. To not correct an unfit sentence when the Crown has brought its appeal on as quickly as possible would effectively negate the Crown’s ability to appeal any non-incarceration sentence.

What Should the Sentence Be?

[53] When a custodial sentence is imposed on appeal in place of a conditional sentence, the new sentence runs from the date of the original sentence. However, while credit is given for the time spent on the conditional sentence that period is not counted in determining statutory remission under the Prisons and Reformatories Act, R.S.C. 1985, c. P-20: Andrew at para. 32. The effect of this is that when a conditional sentence is converted into a custodial sentence of the same length, the offender will be released later than had the custodial sentence been imposed at trial.

[54] At the hearing of the appeal, the Crown accepted that, in the event this appeal is allowed, it would be unfair to simply convert the 20-month conditional sentence into a 20-month custodial sentence. It submitted that the length of the custodial sentence should be adjusted to take Mr. Nguyen’s potential release date into account. The Court requested written submissions on how this could be done, and those have been provided.

[55] The problem in the case at bar is similar to the one which arose in R. v. Gunning, 2008 BCCA 22. Mr. Gunning was originally convicted of murder, and sentenced to life imprisonment. After the murder conviction was overturned, he pleaded guilty to manslaughter and was sentenced to five and one-half years. On his sentence appeal, the Crown accepted that some allowance had to be made to take into account that the two and one-half years that Mr. Gunning had served on the life sentence did not count towards his parole eligibility. This Court did so in allowing Mr. Gunning’s appeal: paras. 9 - 12.

[56] The Court was advised that if Mr. Nguyen had been sentenced to serve a 20-month custodial sentence on December 10, 2007, and earned all of the remission associated with that sentence, then his probable discharge date would be January 29, 2009. This is based on the fact that, for every full calendar month an inmate serves, he or she earns 15 days remission. In addition, for every portion of a month served that is not equal to a calendar month, remission is earned on a pro rata basis, i.e., serve two days, earn one day. An inmate must obey prison rules and attend programs as required to earn remission.

[57] On the basis of the above formula, if Mr. Nguyen is taken into custody to begin serving his custodial sentence on the day following the release of this judgment, then a 514-day sentence commencing December 10, 2007, would result in a probable discharge date of January 29, 2009. This, in my view, is a fit sentence.

Placement

[58] When a Youth Court judge sentences a young person as an adult to a conventional term of imprisonment, s. 76 of the Youth Criminal Justice Act requires the judge to hold a placement hearing to determine whether that sentence is to be served in a youth custody facility, or in an adult correctional facility. If the judge decides the sentence is to be served in a youth custody facility then, by reason of s. 85 of the Act, a further decision must be made concerning the security level of the facility, i.e., open or secure custody. Pursuant to Order in Council 267/2003 (B.C.), made under s. 88 of the Act, in British Columbia it is the Youth Court judge who decides the level of custody: see R. v. N.A.C., 2004 BCCA 373, 187 C.C.C. (3d) 202 at paras. 28 - 31. There are youth custody services centres in Burnaby, Prince George, and Victoria. All have both open and secure custody units.

[59] Neither the Criminal Code nor the Youth Criminal Justice Act contains any provision with respect to how to deal with the issue of placement when, as in this case, a custodial sentence is imposed on appeal. As the parties did not address this issue at the hearing of this appeal, they were asked to provide written submissions on the point.

[60] The Crown and Mr. Nguyen agree that the authority given this Court by s. 687(1)(a) of the Code to “vary a sentence within the limits prescribed by law”, necessarily includes a determination on placement, as placement is an aspect of sentence. I am of the same opinion. Whether, as occurred in R. v. A.O., 2007 ONCA 144, 218 C.C.C. (3d) 409, this Court can remit the issue of placement to the Youth Court is a matter I need not decide. In that case, the Ontario Court of Appeal, having found error with a placement decision made by a Youth Court judge, ordered a new placement hearing in Youth Court: paras. 7, 111, 112. However, it does not appear that consideration was given to the limitations associated with sentence appeals in s. 687(1) of the Code. Under that provision, an appellate court’s power to deal with a sentence appeal is limited to either “vary[ing] the sentence”, or “dismiss[ing] the appeal”.

[61] Because Mr. Nguyen received a conditional sentence, the Youth Court judge did not hold a placement hearing with respect to him. However, as pointed out by Mr. Nguyen and the Crown, a review of the entirety of the sentencing proceedings, including the placement hearing held with respect to the co-accused, Mr. Green, reveals that all of the information required by ss. 76(4) and (5) of the Youth Criminal Justice Act relevant to a placement decision regarding Mr. Nguyen was put before the Youth Court. The placement options are set out in Mr. Nguyen’s pre-sentence report, and Crown counsel advised the sentencing judge that provincial corrections officials were confident that the report “covered all the relevant points” and that, therefore, it was not necessary for them to appear at the placement hearing. Crown counsel further stated that provincial corrections officials were of the view that they could “manage” Mr. Nguyen in a youth facility. Although it is open to this Court to request an updated placement report, I do not see the need for one in this case.

[62] Both parties take the position that Mr. Nguyen should be placed in a youth facility. As set out in Mr. Nguyen’s supplemental submissions, this is the placement preferred by his parents.

[63] Mr. Nguyen is now nearly 19 years old. The psychiatric assessment filed in Youth Court indicates he is a young man who lacks maturity, and is highly susceptible to peer influences, particularly in an anti-social peer environment. In light of this, there is a likelihood that placing him in an adult institution would have an adverse affect on his rehabilitation. Further, the programming and services available in a youth facility are more conducive to Mr. Nguyen’s rehabilitation than those available in an adult correctional environment.

[64] Another factor militating in favour of a youth placement is Mr. Nguyen’s conduct since he turned himself in to the police a few days after the attack on Mr. Levy. While the matter was before the Youth Court, Mr. Nguyen complied with the conditions of his supervised bail. Since then he has abided by the terms of a conditional sentence. Mr. Nguyen has resided with his parents during these periods.

[65] I am satisfied, taking all of the available information into consideration, and having regard to s. 76(2) of the Youth Criminal Justice Act, that it would not be in Mr. Nguyen’s best interests to require him to serve his sentence in an adult correctional facility. I am further satisfied that placing him in a youth facility would not jeopardize the safety of others. Accordingly, I would order that he serve his sentence in a youth facility.

[66] The next question is whether Mr. Nguyen should be placed in an open or secure custody facility. The Crown has not made a submission in this regard. Mr. Nguyen’s position is that he should be placed in an open custody facility.

[67] The differences in the two levels of custody is described in the following terms on the website of the British Columbia Ministry of Children and Family Development:

Youth are sentenced by the court to either secure or open custody. Secure custody is intended for youth who have been found guilty of serious offences or for youth who have a persistent pattern of offending and cannot be reasonably supervised in a community setting or in open custody. Open custody is intended for youth who are not appropriate for placement in a community setting but who can manage effectively with less stringent controls and greater privileges within an open custody centre.

[68] By virtue of Order in Council 267/2003, the factors to be considered when determining the level of custody are those set out in s. 24.1(4) of the now repealed Young Offenders Act:

(a) that a young person should be placed in a level of custody involving the least degree of containment and restraint, having regard to

(i) the seriousness of the offence in respect of which the young person was committed to custody and the circumstances in which that offence was committed,

(ii) the needs and circumstances of the young person, including proximity to family, school, employment and support services,

(iii) the safety of other young persons in custody, and

(iv) the interests of society;

(b) that the level of custody should allow for the best possible match of programs to the young person's needs and behaviour, having regard to the findings of any assessment in respect of the young person;

(d) the recommendations, if any, of the youth court or the provincial director, as the case may be.

[69] As discussed above, the offences committed by Mr. Nguyen clearly fall at the serious end of the spectrum. However, given his genuine remorse and personal circumstances, and having regard to his conduct over the past 19-plus months, I have concluded that an open custody setting is appropriate. In making this order, I note again that there are no concerns that Mr. Nguyen is a flight risk, or that he poses a danger to others.

CONCLUSION

[70] I would grant leave to appeal, and allow this appeal. I would set aside the conditional sentence and substitute a sentence of imprisonment of 514 days, to run from December 10, 2007. This sentence is to be served in an open custody youth custody services facility. The other aspects of the original sentence remain in effect.

“The Honourable Mr. Justice Frankel”

I AGREE:

“The Honourable Mr. Justice Donald”

I AGREE:

“The Honourable Madam Justice Kirkpatrick”