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R. v. I.H.K., 2019 BCPC 150 (CanLII)

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Date:

2019-06-27

File number:

12206-2-C

Citation:

R. v. I.H.K., 2019 BCPC 150 (CanLII), <https://canlii.ca/t/j1dr8>, retrieved on 2024-04-19

Citation:	R. v. I.H.K.
	2019 BCPC 150
Date:		20190627
File No:		12206-2-C
Registry:		[omitted for publication]

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

REGINA

I.H.K.

REASONS FOR SENTENCE

OF THE

HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M.J. BRECKNELL

PUBLICATION BAN s. 486.4 (2.1)

Counsel for the Crown:	P. Swartz
Counsel for the Defendant:	G. Stasuik
Place of Hearing:	[omitted for publication], B.C.
Dates of Hearing:	April 24 - 25, 2019
Date of Judgment:	June 27, 2019

INTRODUCTION

[1] The Defendant, I.H.K. (Mr. K.) is to be sentenced today having pleaded guilty to the following Counts on Information 12206-2-C on which the Crown has proceeded by Indictment:

a) Count 2 … between the 1^st day of December, 2010 to the 31^st day of December, 2017, at or near [omitted for publication] in the Province of British Columbia did, for sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of K. R., a person under the age of 16 years contrary to Section 151 of the Criminal Code, and

b) Count 4 … Between the 1^st day of January, 2015 to the 31^st day of December, 2017, at or near [omitted for publication], in the Province of British Columbia, did, for sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of K. S. R., a person under the age of 16 years, contrary to Section 151 of the Criminal Code.

[2] The Crown seeks a global sentence of two years less one day to be served in a provincial jail followed by a three-year probation order. In addition, the Crown seeks a number of ancillary orders including a firearms prohibition, a DNA order, a prohibition on communicating with the victims while in prison and a SOIRA order.

[3] Defence counsel submits that a global sentence of up to 18 months to be served in a provincial jail followed by a three-year probation order is sufficient in this case. Defence counsel seeks a direction of the Court that Mr. K. serve his sentence at the Ford Mountain Institution.

[4] Defence counsel takes issue with some of the terms of the probation order proposed by the Crown but made no submissions with regard to the ancillary orders sought.

[5] The Crown does not oppose Defence counsel’s request that the Court provide directions to British Columbia Corrections Branch, that Mr. K. serve his sentence at the Ford Mountain Institution.

THE EVIDENCE

Documents Submitted

[6] Counsel filed an Agreed Statement of Facts, Victim Impact Statements (“VIS”) on behalf of K.R. and K.S.R., a Presentence Report (“PSR”) and a Psychological Risk Assessment Report (“Assessment”). These documents and Counsels’ submissions form the basis of the recitation of the various circumstances referred to below.

Victim’s Circumstances

[7] K.R. and K.S.R. (“the Girls”) are siblings. They are parented by their stepmother Ms. R. and her spouse. Ms. R. is Mr. K.’s niece, but their relationship is more like a father and daughter, placing Mr. K. in the position of trust as a step grandfather to the Girls.

[8] K.R. was born on [omitted for publication], making her 5 when the offending against her began and 13 when it ended. K.S.R. was born on [omitted for publication], making her 8 when the offending against her began and 10 when it ended.

[9] In K.R.’s VIS, she describes the serious effects Mr. K.’s crimes have had on her including:

a) lack of trust for men and boys she encounters;

b) self-hatred and guilt over not speaking up sooner;

c) self-harm including an alcohol overdose;

d) fear of meeting up with Mr. K. in the community;

e) fear that Mr. K. will harm other girls; and

f) hatred towards and being unable to forgive Mr. K.

[10] K.R’s mother substantiated what was contained in her VIS and added that K.R. also experiences anger outbursts and sleep disturbances since the offences. She also noted that K.R. is much less trusting of people, particularly men.

[11] In K.S.R.’s VIS, her mother records the serious effects Mr. K.’s crimes have had on her including:

a) being uncomfortable when alone in public;

b) not wanting to be around boys while doing school activities;

c) fear of meeting up with Mr. K. and checking for him and his vehicle when in the community;

d) being uncomfortable around most men, preferring the company of women;

e) being afraid Mr. K. will try something again and scared that he is angry at her for disclosing his crimes; and

f) restricting her outdoor activities, including her favourite, riding her bicycle, for fear of seeing Mr. K.

Offence Circumstances

[12] Between December 1, 2010, and December 31, 2017, the Girls spent many weekends at Mr. K.’s residence. They would often arrive on Friday and not return to their home until Sunday. During that time Mr. K. and the Girls would shop, eat meals in or out, play games, watch movies, play with costume jewellery and dress up costumes.

[13] Although the Information casts a wide chronological net the Court was advised that the offences mostly actually occurred from 2015 to 2017.

[14] In addition to the day-to-day activities described above, Mr. K. committed crimes against K.R. between December 1, 2015, and December 31, 2017, through the following actions:

a) giving foot massages and play fighting that included rubbing her breasts and inner thighs over her clothing which resulted in her telling Mr. K. to stop. He would stop but often would renew the activities later that day or the next day.

[15] In addition to the day-to-day activities described above, Mr. K. committed crimes against K.S.R. between January 1, 2015 and December 31, 2017, through the following actions:

a) touching her breasts and vagina many times, mostly over her clothing but sometimes under her clothing;

b) inserting his finger into her vagina many times after licking or spitting on his fingers for lubrication;

c) in late 2017, fondling her anus as many as 10 times after licking or spitting on his fingers for lubrication;

d) K.S.R. would tell him to stop and he would but he would often renew his actions later that night or the next day;

e) during the two years he fondled her between 15 and 20 times;

f) when he first started fondling her, he told her that if anyone found out what he was doing he would get into a lot of trouble.

[16] Although Mr. K.’s crimes against K.S.R. were revealed to her step mother in April 2018, the RCMP were not advised until several months later.

[17] After the RCMP investigation had begun, K.R. disclosed offences against her resulting in further charges.

[18] Soon after his arrest Mr. K. indicated, through counsel, his intention to plead guilty to the charges. There was some delay while Admissions of Fact were formalized and agreed to by Crown and Defence.

Mr. K.’s Circumstances

[19] Mr. K. is a 66 year old retired person. He was between the ages of 58 and 65 during the time he was offending against K.R. and later, K.S.R.

[20] He is an indigenous person from [omitted for publication] and the community of [omitted for publication]. Although his father was a Chief, Mr. K. and his siblings were not exposed to their culture or language while growing up.

[21] His childhood upbringing was replete with alcohol abuse and family violence. His father was often violent towards Mr. K.’s mother and siblings. As he got older he often interceded to protect family members and often received the brunt of his father’s violence. He was also subjected to sexual abuse by a grandfather when he was between the ages of 8 and 11.

[22] He lived with his parents in [omitted for publication] in his adult years until he was 50, when he relocated to [omitted for publication] to be closer to his niece and her family. He indicates that he wants to return to live in [omitted for publication] once this matter has been resolved.

[23] He left school after Grade 9. He was employed at various times as a roofer, [omitted for publication], labourer and [omitted for publication]. He left his last job just before he was charged with the offences before the Court. He now relies on various forms of government assistance to meet his financial needs.

[24] Mr. K. has never been married and has no children. He has had no intimate partner relationships for over 30 years. He was first exposed to inappropriate sexual activity as a child. He became sexually active as a teen and has had over 27 sexual partners over his life.

[25] He regularly accessed pornography in the past, but denied use of child pornography. He did acknowledge the use of pornography where death of the female partner, suicide or freak accidents were depicted.

[26] Mr. K. acknowledged being sexually attracted to and aroused by the [omitted for publication] but denied any sexual attraction to any other children or adolescents before or after his offending.

[27] Mr. K. has an old, mostly alcohol related, criminal record unrelated to the charges he faces here. He has not used marijuana or alcohol for many years. He has been experiencing some anxiety over the resolution of this case. He has sleep apnea and arthritis in parts of his body but did not report any serious physical or mental health concerns.

The Assessment

[28] A Forensic Psychological Risk Assessment was undertaken and a report provided to the Court with regard to the risk of Mr. K.’s sexual reoffending. In the opinion of Dr. Wiebe, the psychologist, Mr. K. is at a moderate risk to sexually reoffend. The Assessment also covered many of the topics detailed in the PSR.

[29] During the assessment process Mr. K. admitted to being sexually aroused by the Girls and he would often masturbate before and after his encounters with them.

[30] Based on his interviews with Mr. K. and others, Dr. Wiebe noted the following:

a) although there was a history of depressive episodes there was no present evidence to suggest any self-harm or suicidal ideation by Mr. K. He appeared future focused and goal oriented;

b) based on his actions involving the two young victims there is evidence of sexual deviance;

c) although he expressed some concern for the future welfare of the Girls, he minimized the possible long term effects on them; and

d) on the topic of remorse Mr. K. expressed considerable concern about the effect the crimes would have on him and he suggested counselling, church attendance or fishing would alleviate the possibility of recidivism.

Sentence Recommendations

[31] The PSR and the Assessment recommended the following to the Court for Mr. K.:

a) participation in the Forensic Psychiatric Services Commission Sex Offender Treatment Program available at Ford Mountain Institution or in the community;

b) follow up with the Sex Offender Maintenance Program and other counselling;

c) no contact with the Girls or their family members both while in custody and once released on probation;

d) not attending any place of residence, school or employment of the Girls or their family members. No attendance at parks or other locations where people under 17 years are likely to frequent;

e) restrictions on access to under aged teens and being in a position of trust with minors; and

f) not to possess firearms.

THE LAW

Criminal Code

[32] The following sections of the Criminal Code have application to this case:

a) Sexual interference

151 Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
…

b) Order of prohibition

161 (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from:

(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;

(a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order;

(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

c) Purpose and Principles of Sentencing Purpose

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

Fundamental principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

d) Objectives — offences against children

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

e) Other sentencing principles

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,…

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

…

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

Non-communication order

743.21 (1) The sentencing judge may issue an order prohibiting the offender from communicating, directly or indirectly, with any victim, witness or other person identified in the order during the custodial period of the sentence, except in accordance with any conditions specified in the order that the sentencing judge considers necessary.

Case Law

[33] Counsel referred the Court to the following case law:

a) R. v. B.S. 2018 BCSC 2044

b) R. v. D.B.S. 2018 YKSC 16

c) R. v. I.C. 2017 BCPC 2

d) R. v. P.G. 2016 YKTC 67

e) R. v. T.R.J. 2015 BCSC 352

f) R. v. D.A.P. 2009 ABCA 72

g) R. v. R.N.S. 2000 SCC 7

SUBMISSIONS

Crown

[34] The Crown’s submissions based in large part on the Criminal Code sections and cases provided can be summarized as:

a) in crimes like this proportionality is more important than parity (s. 718.1);

b) denunciation and deterrence are the primary sentencing factors for offences where there is abuse of a victim under 18 years old (s. 718.01);

c) the following subparagraphs of Section 718.2 describe statutory aggravating factors:

I. abuse of a person under 18 years (ii.1),

II. abuse of a position of trust or authority in relation to the victim (iii),

III. the offence had a significant impact on the victim considering their age and other personal circumstances (iii.1).

d) Other aggravating factors include:

I. manipulation of one victim not to disclose the crimes,

II. persistent behaviour even when rebuffed by the victims,

III. multiple offending events,

IV. over a long time frame,

V. multiple victims,

VI. turning to the younger victim when he was rejected by the older one,

VII. often offending against one victim while she slept, and

VIII. his remorse is more centred on his problems rather than the effect on the Girls,

e) Mitigating factors include:

I. an early indication to plead guilty thereby saving the Girls from testifying,

II. a willingness to seek help,

III. no criminal record for over 20 years,

IV. some level of remorse, and

V. the Gladue factors as described in s.718.2(e) of the Criminal Code and the PSR.

f) Mr. K. was found to have sexual deviance and is a moderate risk to sexually reoffend;

g) The absence of a related record and an absence of penetration of the victim are not mitigating factors; and

h) The case law suggests that although the minimum mandatory sentence for s.151 is unconstitutional, there is a range of sentence of between 3 and 24 months depending on the frequency, time frame and nature of the offences. A Conditional Sentence Order is not available.

Defence

[35] Although Defence counsel took little issue with the Crown’s submissions, he submits that a sentence any longer than the time necessary for Mr. K. to participate in the sex offender programming at Ford Mountain Institution is unnecessary and unduly harsh. There is no punitive need to send Mr. K. to jail for longer than 15 to 18 months.

[36] The Defence also takes issue with one of the probation order terms sought by the Crown concerning Mr. K.’s interactions with young people upon his release.

Mr. K.

[37] Given the opportunity to speak, Mr. K.’s comments can be summarized as:

a) he stopped the visits with the Girls in December 2017, even though they wanted to continue to see him;

b) he made a mistake and he has had a long time to think about it;

c) he has been in pain for 10 years and has moods swings and is depressed; and

d) his bills were building up and he was thinking crazy and wanted to run but couldn’t.

DISCUSSION

[38] The sentencing of any offender must be a specific and unique process. Although there may be many similarities between the particular case before the Court and other cases provided by counsel concerning such things as the type and nature of the offences, the circumstances of the offender, the number of victims, expert reports and opinions, the provisions of the Criminal Code and the assistance of previously decided cases, particularly from appellate courts, at the end of the analysis a Judge must impose what he or she concludes is a just and appropriate sentence.

[39] As Lamer, CJC said in R. v. M. (C.A.) 1996 CanLII 230 (SCC), [1996] 1 SCR 500:

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence while at all times taking into account the needs and current conditions of and in the community.

[40] To arrive at an appropriate sentence in this case, the Court must carefully consider the circumstances of Mr. K., the circumstances of the offences, his comments to the Court, the PSR and the Assessment, the Victim Impact Statements, the applicable Criminal Code sections, the case law and the submissions of counsel.

[41] Sentencing is a complicated task in every case and even more so in an emotionally charged case involving sexual interference of children by someone they trust and who has a duty to care for them.

[42] When a child is the victim of a sexual offence, the primary considerations in sentencing must be to denounce and deter such conduct and in most cases protect the public by separating the offender from society. This principle was confirmed by the British Columbia Court of Appeal in R. v. Allen 2012 BCCA 377. In a similar vein, the Court reiterated in R. v. RMD 2014 BCCA 56 that when imposing a sentence involving sexual abuse of a child by a parent the offender should expect to receive a significant prison sentence.

[43] In support of that contention, in R. v. DD (2002) 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 Ont. C.A, Moldaver, J.A. says in part at paragraphs 34, 35 and 44:

[34] The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718 (a), (b), and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.

[35] We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and, as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

…

[44] To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuses innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms….

[44] In R. v. Gallacher [1991] B.C.J. No. 762 the court set out 14 factors that might contribute to the finding of exceptional circumstances. The list is not exhaustive and not all the factors need be present for exceptional circumstances to be found.

[45] A consideration of those factors addresses the aggravating and mitigating factors in this case and provides the following considerations concerning Mr. K.:

1. the offences occurred at various times with two different victims over several years but offending behaviour ended by his own volition soon before he was discovered;

2. there were repeat offences;

3. the Assessment determined that he is a moderate risk to sexually reoffend;

4. there were no offences that involved sexual intercourse, physical violence, or threats of violence;

5. he has an old and unrelated criminal record;

6. he has no other family in his life other than K.R.’s and K.S.R.’s step mother;

7. he had a continuous work record in his younger years and up until the offences occurred;

8. there are no references to community or family support for him but his niece was present in Court to support him;

9. the Assessment indicates that he is at moderate risk to reoffend. The PSR can be described as neutral. He was middle aged when the offending occurred;

10. there is a need to address protection of the public. He has not participated in any sex offender treatment or rehabilitation. There are concerns about specific deterrence in light of the Assessment;

11. there have been serious and continuing negative impacts on K.R. and K.S.R.;

12. there is a need to address general deterrence lest other men living in isolated, rural locations come to the conclusion that sexual offending against children they care for is less likely to be discovered and acted upon in such environments.

[46] The damage to the Girls is detailed in their VIS and was expanded upon in the Crown’s submissions. These children have been seriously affected, both physically and emotionally, the seriousness and duration of which may never be known and may well require the assistance of counselling or therapy and the understanding and support of friends and family.

[47] Mr. K., through his statements in the PSR, the Assessment and in Court has clearly demonstrated that he does not fully understand or accept that he, and he alone, was responsible for his offending behaviour against the Girls he was supposed to be nurturing and protecting.

[48] Instead of completely stopping his offending after being rebuffed by K.R., Mr. K. turned his criminal attention to her younger sister, K.S.R.

[49] In light of the number of victims in this case, the Court raised with counsel how a total sentence of two years less one day in jail would meet the purpose and principles of sentencing since the case law strongly suggests that in such circumstances consecutive sentences should be imposed.

[50] Defence counsel offered no submissions on the point to guide the Court. The Crown acknowledged that if consecutive sentences were imposed they could be attributed in the amounts of 6 to 12 months for K.R. and 18 to 24 months consecutive for K.S.R. for a total of 24 to 36 months but that the Court should apply the totality principle set out in s. 718.2(c) to ensure the combined sentence was not unduly long or harsh and settle on two years less one day total, so Mr. K. can receive programming at Ford Mountain.

[51] Whether or not sentences on different counts on an Information should be served concurrently or consecutively is determined by what is often described as the "transaction concept". When offences are part of the same event or transaction they most often attract concurrent sentences. However, where offences are discrete in time, nature, victim or frequency then consecutive sentences may be both appropriate and required.

[52] The counter point to that is that in general, each count in an Information is considered to apply to a single transaction if there is some continuity between the events in the sense of them forming part of ongoing transaction. There are exceptions to the single transaction concept with regard to individual counts on an Information that arise when other principles intervene such as described above.

[53] The Court must also take care to ensure that the global effect of consecutive sentences does not produce excessive punishment by invoking the totality principle as described in section 718.2(c).

[54] In these circumstances, the Court considered the analysis Higinbotham, PCJ, in R .v. P. H. 2003 BCPC 54 (CanLII), 2003 BCPC 0054 where, in sentencing on a sexual assault case involving two young complainants, he said at paragraphs 48 – 52 (in part):

[48] Ultimately the questions facing the Court in this case are first, what sentences will have a deterrent and denunciatory impact, and second, should those sentences be concurrent or consecutive?

[49] If consecutive sentences are to be imposed, they must in their totality not be unduly long or harsh. On the other hand, if consecutive sentences are to be imposed, each sentence must properly reflect the seriousness of the offender’s conduct towards that particular victim.

[50] ….In this case we have only two counts, each of which is of roughly equal gravity.

[51] In this case I think it more appropriate to determine first whether consecutive sentences are warranted, and if so, to then determine whether the combined term offends the principle that the overall sentence must not be unduly long or harsh. If the latter question is answered in the affirmative, then in my view the proper course is to reduce the combined total sentence to one that is not unduly long or harsh.

[52] I have determined in this case that each sentence to be consecutive. Each count refers to separate sexual assaults on two different victims. The fact that each victim was part of the same household, and that in some instances they were assaulted together, is not sufficient to justify concurrency. Both victims were enlisted separately and at different times into the acts complained of, and P.H. did so in a rather careful and systematic manner. His acts of sexual assault against each victim are very much at the serious end of the scale, given the maximum punishment of ten years imprisonment. Each sentence must therefore reflect not only the separateness of the time and way in which each victim was drawn in to the offender’s conduct, but must also reflect the fact that separate and long-lasting consequences have befallen each victim. In my opinion, to grant concurrent sentences would be to minimize the conduct of this offender, and to effectively grant him a sentencing discount for having ruined two young lives instead of one.

[55] Given the nature of Mr. K.’s offences against each of the Girls, the analysis should start from the premise that consecutive sentences are appropriate.

[56] Having reviewed and analysed all of the applicable purposes and principles of sentencing, the case law and despite the submissions presented by Defence counsel the Court does not accept even the Crown’s submission of a global penalty of two years less a day imprisonment followed by probation is the proper starting point when considering a just and appropriate sentence in light of the facts. The suggested sentences do not adequately address the necessary specific primary considerations of denunciation and deterrence or the serious breach of trust visited by Mr. K. upon K.R. and K.S.R.

[57] The Court should first determine the appropriate sentence for each Count before considering whether the sum of the sentences would be unduly long or harsh (see R. v. Adams (2010) 2010 NSCA 42 (CanLII), 255 C.C.C. (3d) 150 (N.S.C.A.), R. v. Taylor (2010) 2010 MBCA 103 (CanLII), 263 C.C.C. (3d) 307 (Man. C.A.) and R. v. Hutchings (2012) 2012 NLCA 2 (CanLII), 282 C.C.C. (3d) 104 (Nfld. & Lab. C.A.)

[58] In this case, before the application of the totality principle as enunciated in s. 718.2(c) of the Criminal Code is taken into account the proper sentences to be imposed would be:

a) Count 2 as it pertains to K.R. – two years less one day in a provincial jail; and

b) Count 4 as it pertains to K.S.R. – three years in a federal penitentiary to be served consecutively.

[59] The differences in the sentences reflects the more persistent and invasive nature of Mr. K.’s crimes against K.S.R. and the fact that he turned to her when rebuffed by K.R.

[60] That being said, the Court must also consider the provisions of s. 718.2 (c) to ensure that the combined sentences are not unduly long or harsh. In that regard, the Court takes particular note concerning Mr. K.:

a) the twelve factors from Gallacher considered above;

b) his age;

c) the mitigating and aggravating factors described by the Crown which the Court adopts;

d) the excellent resources and programmes available at Ford Mountain Institution, a provincial jail that may not be as available elsewhere;

e) the lengthy term of supervision afforded by a three year probation order; and

f) the Gladue factors as described in the PSR and counsels’ submissions

[61] In light of those factors the Court, with some reluctance, is prepared to impose the maximum allowable provincial sentence.

DECISION

Ancillary Orders

[62] In light of the offences, Mr. K. has pleaded guilty to and the stated moderate possibility of him sexually reoffending, the Court will exercise its discretion as described in s.161 of the Criminal Code beyond what was being sought by the Crown.

[63] The nature of his offences against K.R. and K.S.R., indicate that other young girls could be endangered by his actions in the future.

[64] For a period of ten (10) years, Mr. K. will be prohibited from:

a) Attending a public park or public swimming area where persons under the age of 16 are present or can reasonably be expected to be present or daycare centre, school ground, playground or community centre;

a.1) being within one (1) kilometre of any dwelling house where K.R. or K.S.R. ordinarily resides;

b) seeking or obtaining or continuing in the employment whether or not the employment is remunerative or becoming or being a volunteer in a capacity that involves being in position of trust or authority towards persons under the 16 of years.

[65] Mr. K. will be at liberty to apply to vary these prohibitions or seek exemptions from them five (5) years from when the prohibition begins.

[66] There will be a SOIRA Order as requested by the Crown. Given the nature of the offences to which Mr. K. has pleaded guilty that order is required unless he can convince the Court otherwise. Defence counsel did not address reasons why such an order should not be granted.

[67] There will be an order in Form 52 requiring I.H.K. to comply with the Sex Offender Information Registry Act for life and to sign any necessary documentation required by that Act.

[68] Both Counts on the Information are primary designated DNA offences. Pursuant to s. 487.051(1) of the Criminal Code, there will be an order in Form 5.03 authorizing the taking of a number of samples of bodily substances by any Peace Officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the National DNA Databank from I.H.K. by July 31, 2019.

[69] The samples will be taken from you while you are in jail and you must submit to the taking of the samples.

[70] Both Counts attract a mandatory firearms prohibition pursuant to s.109 of the Code. I.H.K. is prohibited from possessing:

a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years; and

b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

Sentence

[71] Taking into account all the factors described above the Court imposes the following sentences on Mr. K. with regard to Information # 12206-C2:

a) Count 2 as it pertains to offences against K.R. contrary to s.151 of the Criminal Code – two (2) years less one (1) day in a provincial jail;

b) Count 4 as it pertains to offences against KS.R. contrary to s.151 of the Criminal Code – two (2) years less one (1) day in a provincial jail; and

c) with each count to be served concurrently with each other.

[72] Pursuant to s. 743.21 of the Criminal Code I.H.K. shall, during the term of his prison sentence, be prohibited from communicating directly or indirectly with K.R. and K.S.R.

[73] The Court recommends that Mr. K. serve his sentence at the Ford Mountain Institution in order to be able to participate in the sex offender treatment and counselling programs available at that location.

Probation Order

[74] Upon the completion of the prison sentence Mr. K. will be subject to the following terms of a probation order for a period of three (3) years:

1. You must keep the peace and be of good behaviour.

2. You must appear before the court when required to do so by the court.

3. You must notify the court or the probation officer two (2) days in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.

4. You must have no contact or communication, directly or indirectly, with K.R., K.S.R., C.R., A.S. and M.B. (except with a further order of this court).

5. You must not go to or be within 1 kilometre distance of any residence, school or workplace of K.R., K.S.R., C.R., A.S. and M.B. (except with a further order of this court).

6. You must report in person to a probation officer within two business days after your release from custody at the probation office closest to the location of your release unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere or within a different time frame. After that, you must report as directed by the probation officer.

7. You must reside at a residence approved in advance by the probation officer. You must provide your probation officer with your phone number, and you must not change your residence or your phone number without written permission from your probation officer.

8. When you first report to your probation officer, you must tell the officer the names of all permanent and temporary occupants of your residence and immediately tell him or her of any change.

9. You must have no contact or communication directly or indirectly with, nor be alone in the presence of, any person (you know to be or who reasonably appears to be) under the age of 16 years.

10. You must not engage in activities, volunteer work or employment that could bring you in contact with persons under the age of 16 years without the written permission of your probation officer and when so engaged, you must carry this permission.

11. You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the probation officer. Without limiting the general nature of this condition, the intakes, assessments, counselling or programs may relate to sexual offence prevention.

__________________________

M.J. Brecknell

Regional Administrative Judge

Northern Region

Provincial Court of BC