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Criminal - Sentencing - Restraint. R. v. Hoang
In R. v. Hoang (Ont CA, 2024) the Ontario Court of Appeal considered 'restraint' as a sentencing factor, here in a first-time offence:[78] In light of those circumstances, I agree with the appellant that the trial judge erred in failing to apply the principle of restraint. Specifically, it is well-recognized that where an offender has never served a period of incarceration, the shortest sentence possible ought to be imposed: R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417, at para. 36; R. v. Disher, 2020 ONCA 710, 153 O.R. (3d) 88, at para. 59; R. v. Desir, 2021 ONCA 486, at para. 31; R. v. Simpson, 2021 ONSC 6032; R. v. Thomas, 2014 ONSC 6946; R. v. Faroughi, 2024 ONCA 178, at paras. 69-71. Further, while the objectives of denunciation and deterrence must be given significant weight, they should rarely, if ever, be the sole determinants of the length of a first penitentiary sentence. As Rosenberg J.A. stated in Borde, at para. 36:The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives. [79] See also Disher, at para. 59; and Desir, at para. 31.
[80] While this principle has been emphasized in the context of youthful offenders, it is not limited to that context: see e.g., Simpson, at para. 189, where this principle was applied in the context of a “relatively young, middle-aged” offender.
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