R. v. K.T., 2016 ONCJ 222

WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under s.486.4(1) (Sexual Offences) of the Criminal Code.

Court Information

Ontario Court of Justice

Date: 2016-04-20

Court File No.: Barrie 15-05011

Between:

Her Majesty the Queen

— and —

K.T.

Sentencing and Long Term Offender Application

Heard: February 24, 25, 26, 2016

Sentencing: April 20, 2016

Counsel:

Mr. Indi Kandola — counsel for the Crown

Ms. Angela McLeod — counsel for the accused

KENKEL J.:

Introduction

1Over the Spring and Summer of 2013 K.T. competed with other young women for the attention of Shayne Lund. Lund was pre-occupied with sex and by that time his interests had descended to dangerous and criminal behaviour including the sexual abuse of children and animals. Lund was manipulative with respect to the younger women he was involved with and he demanded that they help fuel his desires. To retain his interest K.T. threw all judgment aside and joined Lund in a fast downward spiral that eventually led to her committing serious offences against those who loved and trusted her the most.

2K.T. pleaded guilty after a preliminary hearing and re-election to the 11 charges set out in paragraph 3. The Crown applies for a Long Term Offender (LTO) designation, a sentence of 4 to 6 years and a supervision order for the maximum term of 10 years. The defence submits that a sentence of 2 years less 1 day is within the range for this particular offender and that supervision through a maximum probation term would be sufficient to ensure public safety.

Counts

3K.T. pleaded guilty to the following counts:

• Count 4: Possession of child pornography s.163.1(3)
• Count 20: By telecommunication did agree to commit sexual assault on a person under 16 years s.172.2(1)(b)
• Count 26: Counselling to commit sexual assault s.464(a)
• Count 27: Possession of child pornography s.163.1(4)
• Count 29: Make available child pornography s.163.1(3)
• Count 32: Make child pornography s.163.1(2)
• Count 38: Conspire to administer a noxious substance s.465(1)(c)
• Count 47: Conspire to commit sexual assault s.465(1)(c)
• Count 48: Conspire to administer noxious substance s.465(1)(c)
• Count 57: Bestiality s.160(1)
• Count 58: Conspire to commit sexual assault s.465(1)(c)

Summary of the Facts of the Offences

4K.T. met Shayne Lund in high school. She was 15 when they met and he was three years older. As he'd done with other girls, Lund began a sexual relationship with K.T., at times promising a full relationship but he continued seeing others. In an on/off relationship K.T. competed with the other girls for Lund's attention.

5By March of 2013 K.T. and Lund had been back in touch for about 6 months. She was 19 and attending her first year of university in another city. He was 22 years old. They kept in touch via text messages, Skype, other media and personal visits. Despite the distance, their relationship during this period escalated quickly. Lund was manipulative and demanding in order to satisfy his sexual interests.

6By the Spring of 2013 Lund's sexual interests had become increasingly dangerous. He engaged K.T. in frequent detailed conversations about bestiality and pedophilia. Their conversations were sexually graphic. They exchanged animated and real images involving animal sex and the abuse and rape of young children. Lund was quite explicit about his interests and how he wanted to "wreck vaginas" of little girls. During this time K.T. was aware that Lund had numerous sexual partners and that some were younger than she was.

7K.T. engaged in the conversations and encouraged Lund in his interests. She now says she pretended to agree to appease him in order to gain his attention. Her messages though were enthusiastic not reluctant and her encouragement was explicit and detailed. From June of 2013 onwards that verbal encouragement progressed to action as K.T. committed numerous offences in relation to children and animals and planned other, even more serious offences all to fuel the increasingly extreme and dangerous desires of Mr. Lund.

8From June 22nd into July 2013 K.T. made digital photographs of her naked 12 year old sister and sent them to Lund.

9In text messages sent June 23, 2013 Lund advised K.T. that he'd grabbed the buttocks of her 12 year old sister while she was in a bathing suit. K.T. responded that he should have touched her vaginal area.

10Throughout June and July of 2013 Lund sent K.T. graphic child pornography images. In June Lund sent K.T. a written story of bestiality involving a dog raping a 14 year old. In August and again in September K.T. sent Lund a written story about her sister with explicit details about sexual acts involving Lund.

11On June 27, 2013 Lund sent K.T. images of a 14 year old's vaginal area and an image of her performing a sexual act upon him. He took those photos while having sex with the underage girl. K.T. was aware of the girl's age, a year younger than she'd been when Lund first started having sex with her. He sent further images of the same girl on July 3rd, July 19th, and August 9th, 2013.

12On June 27th Lund conspired with K.T. to sexually assault her 12 year old sister. They discussed a plan where Lund would spend the night at K.T.'s house and then use that opportunity to perform sexual acts with the child. K.T. discussed administering gravol to render her sister unconscious. They had a further discussion about the same plan on June 30th. K.T. suggested they wait until her parents went away for their anniversary.

13On June 30th, 2013 Lund began a text discussion with K.T. about how he would like her to have sex with her family dog. On July 10th she sent a photo to Lund showing her family dog licking her vagina. That same day Lund sent a photo to K.T. of the 14 year old girl underneath a horse next to the horse's penis. K.T. encouraged Lund, asking for more photos if they took them.

14Lund made trips to another city in July of 2013 to visit a former sexual partner who now had a daughter. He sent K.T. 7 images of himself masturbating into the 4 year old child's underwear. K.T. responded, "I pray you fall asleep with (her) tonight". She suggested that Lund offer to babysit the child and she also advised him to knock her out. The next day when Lund said he was bored she told him to masturbate on the child's stuffed animals or her sheets. She sent him an explicit text fantasy which he used. K.T. reports that Lund told her he did commit direct sexual acts with his friend's daughter.

15On July 14, 2013 K.T. and Lund discussed via text his interest in sexually assaulting K.T.'s mother and her younger sister. K.T. noted that they were all going to sleep in a tent in the backyard in the near future and she suggested he give her mother and sister sleeping pills before sexually assaulting them. K.T. offered to purchase the pills. The night in the tent took place but there is no evidence a sexual assault took place in relation to either the mother or sister.

16On July 27th, 2013 K.T. sent Lund a photo of her sister sitting on a couch in shorts. The accompanying text asked, "Want it?". Lund sent K.T. a text on August 9th saying that he wanted to "rape" K.T.'s sister. They discussed opportunities to do so.

17On August 22nd 2013 Lund and K.T. discussed having a "threesome" with a 15 year old. During the discussion K.T. remarked on how lucky it was that the 15 year old had told him she was interested in bestiality and pedophilia, "she likes everything we do". In September Lund sent K.T. 6 images of him having sexual intercourse with the young girl.

18Throughout the Spring and Summer of 2013 K.T. was aware of Lund's pre-occupations with pedophilia and bestiality. She was aware he had interest in and access to other children in the community.

19Mr. Lund was arrested on September 13, 2013. Prior to her arrest on October 3rd, K.T. deleted large amounts of data from her phone.

Crown Position

20The Crown submits that the accused should be declared a Long Term Offender. She should be sentenced to a term of imprisonment of 4 to 6 years, less consideration for pre-trial custody. That term of imprisonment should be followed by a Long Term Supervision Order of 10 years.

Defence Position

21The defence submits that K.T. does not meet the Long Term Offender criteria as a global sentence of 2 years less 1 day followed by three years probation would be sufficient in this case. In the alternative, the defence requests the court consider a 30 month sentence which would result in time served. The defence concedes that if the sentence exceeds 2 years the Crown has shown that an LTO order is necessary, but submits that such an order should be limited to 3 years for this offender.

LTO and LTSO's – The Statutory Framework

22Section 753.1 of the Criminal Code governs Long Term Offender (LTO) applications. A court may find an offender to be a long-term offender if:

• It would be appropriate to impose a prison sentence of 2 years or more;
• There is a substantial risk that the offender will reoffend; and
• There is a reasonable possibility of control of the risk in the community.

23Given the offences for which K.T. has been convicted and the circumstances of those offences she is deemed a substantial risk pursuant to s.753.1(2)(a). The offences include enumerated offences in circumstances that show repetitive behaviour with a likelihood of causing injury or severe psychological trauma to children.

24The parties agree that there is a reasonable possibility of control of the risk in the community. They disagree only as to the first LTO criteria – whether it's appropriate in this case to impose a sentence of 2 years or more.

25If the court finds an offender to be a long-term offender, section 753.1(3) directs the court to impose an appropriate sentence of not less than two years and to order that the offender be subject to a long-term offender supervision order (LTSO) for a period up to 10 years.

26The period of imprisonment and the period of the long-term supervision order are separate aspects of sentence. Each serves a different purpose. The principle objective of a prison sentence is punishment in accordance with the sentencing principles set out in the Criminal Code. The two objectives of an LTSO are to ensure that the public is protected during supervised reintegration into society and to ensure that rehabilitation and reintegration is successful. R. v. Ipeelee 2012 SCC 13 at para 48, R v. LM 2008 SCC 31 at para 47.

27The court does not set out the conditions of the LTSO. Supervision orders must include the conditions set out in r.161(1) of the Corrections and Conditional Release Regulations, SOR/92-620. The National Parole board may impose any other conditions necessary to protect society and reintegrate the offender. Corrections and Conditional Release Act SC 1992 c20.

A Sentence of 2 Years or More?

28The first question on an LTO application and the central issue in this case is whether the sentence to be imposed is one of two years or more.

29The sentence imposed must be proportionate to the gravity of the offences and the degree of responsibility of this offender. Criminal Code s.718.1 Proportionality is important even where offences carry minimum sentences as is the case here. R. v. Nur 2015 SCC 15

30Offenders who put the safety of innocent children at risk to satisfy their sexual needs must know that they will pay a heavy price. R. v. D.D., [2002] OJ No 1061 (CA). In my view, that instruction by the Court of Appeal must apply equally to those like K.T. who encourage, enable and assist offenders in committing sexual crimes against children.

31Even for first offenders, deterrence, denunciation and the protection of society are the paramount considerations on sentence where the offences involve the sexual abuse of children. Criminal Code s 718.01, R. v. RTM 2008 ONCA 47, [2008] OJ No 229 (CA). The same considerations apply in relation to the child pornography offences. R v Rotman [2015] OJ No 5108 (CA) at para10 Rehabilitation remains a goal, particularly in the case of a youthful offender with no prior record. Criminal Code s 718(d)

32"Mid to upper single digit penitentiary sentences are appropriate where an adult in a position of trust sexually abuses a young child on a regular basis over a substantial period of time." R. v. HS 2014 ONCA 323, [2014] OJ No1974 (CA) at para 42, R. v. DD at para 44. The 2005 amendments to the Criminal Code that imposed minimum sentences for many sexual offences against children have shown Parliament's intent that such sentences be increased overall. Pre-amendment sentences must be considered in that light. R. v. KDH 2012 ABQB 471, [2012] AJ No 816 (QB) at para 51

33In HS the Court of Appeal rejected a conditional sentence and found that a 3 year sentence was appropriate for a man who had repeated sexual intercourse with a girl in his foster care which resulted in the birth of a child with devastating consequences for the victim. The court took into account that the Crown position at trial was 2 to 2.5 years and that 35 years had passed since the offence in arriving at the 3 year term.

34K.T.'s offences fall below the acts of direct repeated sexual abuse over a substantial period as discussed in D.D. and subsequent similar cases. The Crown has referred to R. v. DCM [2015] OJ No 6231 (CJ) as being similar to this case. There the offenders were a married couple in their 40's. They possessed and made graphic child pornography. Over a period of one and a half years they discussed via texts fantasies about child sexual assault. They pled guilty to child pornography charges, sexual assault, sexual interference, attempted bestiality and other criminal and drug charges. The court imposed a sentence of 7 years for offenders who were twice the age of K.T. and equally engaged in a "joint venture" with similar but worse acts than K.T. over a longer period of time. Absent in DCM is the important factor of manipulation and control by one party that is a central feature in this case.

35In R v RB [2014] OJ No 5626 (CA) the court upheld a 4 year sentence for luring, voyeurism and making and possessing child pornography. The court cited the luring offence (sentence 2 years 6 months) in particular in explaining why a sentence above the statutory 2 year minimums was appropriate.

36The defence notes that a 2 year less 1 day sentence was imposed in R. v. Mack 2014 ONCJ 29, [2014] OJ No 372 (CJ) for child pornography offences by an offender with a prior related conviction. I note in that case that the second set of offences began after the accused's counselling in the community had ended.

37The offences in this case occurred over a 4 month period in the summer of 2013. K.T. was in a position of trust in relation to her sister and her dog. Her offences are serious and have had a serious impact on her family and others in the community. She encouraged Lund to have sex with children. While he did not in fact have sex with her sister or mother she knew he had access to other children. She planned with Lund to assist him in sexually assaulting children and others. While she was younger and had a lesser role than Lund's other accomplice AT, I find the circumstances and the gravity of the offences require a sentence in excess of 2 years. Even though consideration of pre-trial custody may reduce the sentence to be served to a point below the 2 year level, probation would not be available where that pre-trial custody is applied to satisfy statutory minimum sentences of two years or more. R. v. Mathieu 2008 SCC 21, [2008] SCJ No.21 at para.7.

38I find that the Crown has proved that the first LTO criterion has been met.

Substantial Risk of Re-Offending

39The second LTO criterion requires the Crown to prove that there is a substantial risk that the offender will re-offend.

40Section 753.1(2) does not limit the interpretation of "substantial risk" but requires the court to make that finding where the offender is convicted of an offence listed in that section and meets the further criteria. R. v. McLeod 1999 BCCA 347, [1999] BCJ No 1264 (CA)

41K.T. has been convicted of several offences listed in s.753.1(2):

• Possession of child pornography s.163.1
• Make child pornography s.163.1
• Make available child pornography s.163.1
• Agreeing to commit a sexual offence against a child s.172.2
• Conspiring to commit sexual assault ss.271/465(1)

42A "pattern of repetitive behaviour" must show that the offender will likely offend in the same way in the future. There may be as few as two incidents of equal gravity and nature but typically a pattern involves more. R. v. Hogg 2011 ONCA 840, [2011] OJ No.5963 (CA) at paras 39-40. I find that the circumstances of these offences show a pattern of repetitive behaviour in relation to sexual offences against children that could reasonably result in harm and severe psychological damage to children.

While the assessment of the psychiatrist Dr. McMaster shows that K.T. is at a low risk to reoffend, that finding is in the context of significant supervision and counselling upon reintegration into the community which is detailed in the report. I find that the Crown has proved that the statutory criteria are met and that K.T. is a "substantial risk" as that term is defined in s.753.1(2).

Reasonable Possibility of Control

43Notwithstanding the gravity of the offences, both parties agree that there remains a good prospect for K.T.'s rehabilitation. With intensive supervision on terms as recommended by Dr. McMaster, I find there is a likelihood that the substantial risk will be effectively controlled within the community.

Long-Term Offender

44I find that the Crown has proved that K.T. should be designated a Long-Term Offender.

Sentence – Aggravating Factors

45Beyond the awful circumstances inherent in the offences, the aggravating factors include:

• The fact that K.T. encouraged Lund's dangerous sexual behaviour throughout regardless of the risk posed to others simply to feed her need for his attention
• The planning involved in the offences
• The progression of K.T.'s role from passive encouragement towards active participant. But for police intervention the evidence shows that the behaviour was likely to continue to escalate.
• K.T. was in a position of trust with regard to her sister. I disagree with the defence submission that an older sister is not in a position of trust vis-à-vis a younger sibling unless they are designated as a babysitter by the parent and acting in that capacity. In my view K.T. was always in a position of trust with respect to her younger sister, particularly since K.T. was an adult. R v. WWM, [2006] OJ No 440 (CA)
• K.T.'s was aware that other children were being victimized by Lund
• K.T. discussed plans with Lund to groom and victimize other children
• The negative impact of the offences as shown in the victim impact statements. The devastating impact on her sister is particularly tragic. The impact on victims is an important consideration on sentence. R. v. Drabinsky 2011 ONCA 582, [2011] OJ No 4022 (CA)

Sentence – Mitigating Factors

46There are a number of mitigating factors:

• The lack of any prior criminal record
• The fact that K.T. was young – 19 – at the time of the offences
• K.T. was attending university prior to her arrest. Her prospects for future education and employment remain positive.
• Although the relationship is complicated by the circumstances of her offences, K.T. has not lost the support of her family
• The fact of the guilty plea
• K.T.'s remorse goes well beyond the plea. Her statement to the court and her demeanor throughout all of the proceedings has shown the shame and regret she feels. She took full responsibility for her actions and she recognized that her apology was inadequate given the gravity of her offences. K.T.'s genuine insight and remorse as shown in court is consistent with Dr. McMaster's findings and bodes well for her future rehabilitation

47While not an excuse for the choices she made as an adult, the fact that K.T. became sexually involved with Shayne Lund when she was 15 and was subject to manipulation towards sexually deviant behaviour from a young age by an older male I find is a relevant circumstance on sentence.

Mandatory Minimum Sentences

48The Safe Streets and Communities Act Bill C-10, 41st Parliament 1st Session, received Royal Assent on March 13, 2012. The Bill contained many amendments and many different effective dates for those changes, but the changes in Part II that relate to sexual offences came into force August 9th, 2012 and apply to the charges here which involve acts that took place after that time.

49Minimum sentences apply to the following counts:

• Count 4: Possession of child pornography — 6 months minimum
• Count 20: Agree to commit sexual assault on minor — 1 year minimum
• Count 26: Counselling sexual assault on minor — 1 year minimum
• Count 27: Possession of child pornography — 6 months minimum
• Count 29: Make available child pornography — 1 year minimum
• Count 32: Make available child pornography — 1 year minimum
• Count 47: Counselling sexual assault on minor — 1 year minimum

50The Crown concedes that counts 20, 26 and 32 all relate to the same victim and series of acts so those sentences should be concurrent. The defence submits that sentences on every count, including those subject to minimum sentences, should run concurrently given the continuity of the acts over a relatively short period of time.

The Appropriate Sentence

51In sentencing a long-term offender, deterrence, denunciation and protection of the public are the primary goals. For a very young first-offender rehabilitation remains an important secondary consideration.

52Considering the circumstances of the offences and this accused, I find that the appropriate global sentence is one of three years imprisonment.

53The global three year sentence will be apportioned as follows:

• Count 4: Possession of child pornography — 6 months
• Count 20: Agree to commit sexual assault on minor — 18 months consecutive
• Count 26: Counselling sexual assault on minor — 18 months concurrent
• Count 27: Possession of child pornography — 6 months concurrent
• Count 29: Make available child pornography — 1 year concurrent
• Count 32: Make child pornography — 1 year concurrent
• Count 38: Conspire to administer noxious substance — 1 year concurrent
• Count 47: Counselling sexual assault on minor — 1 year consecutive
• Count 48: Conspire to administer noxious substance — 1 year concurrent
• Count 57: Bestiality — 6 months concurrent
• Count 58: Conspire to commit sexual assault — 18 months concurrent

TOTAL: 3 years

54Pre-trial custody may be taken into account with respect to the statutory minimum sentences for each of the above counts R. v. Wust 2000 SCC 18 as well as with respect to the sentence imposed pursuant to s.753.1(1)(a). R. v. Hall, [2004] OJ No 1679 (CA). If the sentence imposed is equivalent to 2 years or more then the first LTO pre-condition is met even where the remaining sentence after pre-trial custody is deducted falls below that mark.

55The accused spent 208 days in custody from the date of her arrest October 3rd, 2013 to April 28th, 2014 when she was released on bail review. She was on strict house arrest bail for 330 days. She entered a plea of guilty on February 17th, 2015. On March 25th her bail was cancelled and an assessment order was made on consent. She's remained in custody since for a total of 393 days (1 year 27 days) to April 20, 2016.

56She has 208 + 393 = 601 days (1 year 7 months 3 weeks+) time served. Both counsel agree that her time served should be credited at 1.5 to 1 per R. v. Summers 2014 SCC 26. 601 x 1.5 = 901.5 = 902. Therefore K.T. will be given credit for pre-trial custody of 902 days (2 years, 5 months, 2 weeks 6 days).

57Three years is 1095 days. Subtracting credit for pre-trial custody of 902 days, 1095 – 902 = 193 days to be served.

58I've considered the defence request for a further reduction in sentence to reflect the time spent on release in the community on strict conditions, but I find that such consideration would not be appropriate in this case as the three year sentence imposed is at the lowest end of the range and further reduction would render the sentence unfit.

59The warrant of committal requires that the court note the sentence imposed with respect to each count, including the time that would have been imposed before any credit, the pre-trial custody considered just on that count, the credit given for the pre-trial custody on that count, and the remaining sentence to be served. I'm aware that noting a particular sentence for each count is preferable, but in this case dividing pre-trial custody among 11 counts and attributing a portion of time to each then determining credit per count and weaving that among the various concurrent and consecutive sentences per count keeping in mind statutory minimums would not be practical. I've noted the attribution of sentence above in these reasons which should allow for meaningful review, but the warrant of committal will reflect the global sentence of 3 years on each count with 193 days to serve on each count concurrent.

Long Term Supervision Order

60The prison sentence must be followed by a long-term offender supervision order.

61Dr. McMaster found that K.T. has no sexual paraphilias. Her involvement in the index offences was directed by Lund's interests and her overwhelming need for his attention. There's no evidence of a major mental illness. There's some indication of borderline personality disorder traits but that diagnosis is provisional given her young (teen) age during the period in question. Her PCL-R psychopathy score was low, comparable to that of an average person.

62Outside the context of the Lund relationship there's no history of conduct disorder which Dr. McMaster found significant. She also did well when granted bail on strict terms including counselling and that was considered in the report.

63Several risk factors remain. K.T. does not yet have full insight into the behaviours that led to the offences. She has low self-esteem. She quickly put herself into a dependent state in relation to Lund and then lost all judgment with respect to her behaviour. To decrease risk it's essential that K.T. reflect on her role in the offences and the decisions that led to them. She must also avoid negative relationships and learn how to be independent and exercise good judgment in that context.

64Dr. McMaster found that K.T. would pose a low risk to reoffend if she had appropriate treatment and supervision upon her release. Dr. McMaster said there was a "high need" for risk management and when asked he suggested a term of 5 years would be long enough for someone to "turn their life around". That process has already begun for K.T. given her strictly supervised release but further supervision and treatment is essential during a term long enough to include supervision through the development of new relationships.

65I find that the risk posed by this offender can reasonably be met with supervision for a period of 4 years.

66The conditions of the LTSO are set not by the court, but by the National Parole Board and Correctional Service of Canada. The sentencing court may make recommendations though and in this case I refer Correctional Service to the recommendations of Dr. McMaster.

Ancillary Orders

67Both parties wished to address ancillary orders after learning the form of sentence. A section 161 order, s.109, s.743.2, SOIRA, DNA and Forfeiture of offence related property were mentioned.

Conclusion

68K.T. has been found to be a long-term offender. She is sentenced to a global custodial sentence of 3 years less credit for time served which results in a remaining term of 193 days to be served. The custodial term will be followed by a Long Term Supervision Order for 4 years on terms set by Correctional Service Canada and the National Parole Board.

69The psychiatric report, agreed statement of fact on plea and a copy of these reasons will be forwarded to the Correctional Service of Canada as required under s.760 of the Criminal Code.