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 subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in sub-para-graph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
( b ) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2022 07 14 COURT FILE No.: Metro North, Toronto Region 19-45001176
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
Chang Yul (Colin) LEE
Before: Justice Cidalia Faria
Heard on: March 9, 2022 Reasons for Sentence released on: July 14, 2022
Counsel: S. Rochelle Liberman, counsel for the Crown David Bayliss, counsel for the accused Chang Yul (Colin) LEE
I. Overview
1Chang Yul Lee also known as Colin, is co-accused with Beum Jin (Alex) Kim. Mr. Lee plead guilty before me on March 9, 2022, to the counts of Aggravated Assault, Forcible Confinement, Extortion, Transmitting Intimate Images, and Fraud Under. The guilty plea occurred after a 6-day Preliminary Hearing heard in July 2021. The offences are serious and the facts unusual. Both parties filed sentencing materials. The sentencing recommendations were years apart.
II. Facts
2An Agreed Statement of Fact was filed as follows:
i. In 2019, Beum (Alex) Kim was a party promoter at a Karaoke Bar named Cheers in Toronto. Chang Yul (Colin) Lee worked for Alex. The victim, T.K., worked for Alex and Colin.
ii. T.K. decided he no longer wanted to work for them at Cheers and on February 24, 2019, he called Colin to quit. Colin advised T.K. to speak to Alex. After unsuccessful attempts to reach Alex over the telephone, on February 25th, 2019, Alex contacted T.K. and instructed him to go to Cheers at 10:00pm.
iii. On February 25, 2019, T.K. arrived at 11:00 pm. Both Colin and Alex were already there. Alex called T.K. into a private room at the bar and ordered him to turn over his cell phone to Colin so that Colin could erase all his contacts. When T.K. offered to erase contacts that were related to his work with Alex and Colin, Alex got upset and took T.K.’s phone.
iv. T.K. tried to leave without his phone, but both Alex and Colin physically blocked him. T.K. tried shoving his way out but was unsuccessful.
v. Alex asked a patron of the bar, Won Kon Kim, to assist in scaring T.K.. Won Kon Kim attended the room where T.K. was held and punched and slapped him. He showed him a scar on his stomach to scare him.
vi. After Won Kon Kim’s departure, Alex and Colin continued to punch and kick T.K.
vii. Again T.K. tried to escape. He was able to make it out of the room. Won Kon Kim heard the struggle and came to assist Alex and Colin drag T.K. back into the room he was confined to.
viii. After the failed attempt to escape, Alex and Colin blindfolded and tied T.K. with duct tape.
ix. Throughout the next 30 hours that T.K. was held hostage, he was beaten intermittently by both Alex and Colin:
- T.K. was beaten with a microphone, a microphone stand and other hard objects.
- He was punched and kicked all over his body.
- T.K. was stripped naked and tied up with duct tape. Colin initially tied him up, but Alex retied the duct tape as Colin did not tie it tight enough. The duct tape was tied tight enough to cause permanent scarring on T.K.’s body.
- A hat was put over T.K.’s head and face.
- A lighter was put near T.K.’s body and the toque on his head and face caught fire. T.K. had to hit his head against a wall to put the fire out.
- Hot water was poured over T.K.’s body.
- Cold water was poured over T.K.s body.
- T.K.’s feet were put in ice cold water.
- T.K. was burned numerous times all over his body with cigarettes and crack pipes that left permanent scars.
- Alex threatened to heat up a microphone and brand T.K.’s skin.
- Alex and Colin threw glass at the walls. T.K. was then forced to sit and crawl on the glass. Eventually, Colin gave T.K. his sweater to kneel on instead of on the glass.
- T.K. was pricked with something sharp.
- T.K. was forced to write down thirty things he had done wrong in his life. These had to be to Alex’s satisfaction and at one point, Colin started to assist T.K. with what he should write.
- Alex urinated on T.K. and put feces on his face.
- Alex threatened to cut off T.K.’s fingernails and penis.
- Alex took a kitchen knife and threatened to cut T.K.’s Achilles’ heel.
- T.K. had to give Alex and Colin his banking and cell phone passwords.
- Alex and Colin copied everything from T.K.’s phone, including private nude photos of his girlfriend S.K..
- Alex and Colin extorted him for money and withdrew money from his accounts while he was confined at the bar.
- Alex and Colin filmed him nude and threatened to show the video to his girlfriend.
- At one point, while T.K. was held hostage, Alex was on the phone with a person named Danny discussing shipping T.K. to Korea.
x. At about 8:45am on February 27th, 2019, Alex was satisfied T.K. would not go to the police, so he released him from the room. T.K. was still undressed. He put his urine covered clothes on. Alex drove T.K. and Colin to T.K.’s car.
xi. Colin drove T.K. to his own house in T.K.’s car. On the way, Colin stopped at a bank and withdrew money from T.K.’s account. Once at his house, Colin fed T.K. and let him shower and sleep.
xii. Throughout the thirty hours T.K. was held hostage, everything that occurred was orchestrated by Alex.
xiii. Both Alex and Colin were drinking alcohol and smoking crack cocaine during the time T.K. was held hostage. [1] .
III. Position of the Parties
3For the Crown, Ms. Liberman submits the paramount applicable principles are denunciation and deterrence. She recommends a 5-year penitentiary sentence minus pre-sentence custody on a 1.5 basis. Mr. Lee was in pre-trial custody from February 28, 2019, to April 26, 2019, a period of 58 days. In addition, she recommends a DNA Order and a s. 109 Weapons Prohibition for life.
4The Crown described the attack as unprovoked, vicious, humiliating, and continuous for over 30 hours. The victim was naked, with his head covered and limbs duct taped while he was held hostage. She submits this to be on the higher end of brutality for aggravated assaults perpetuated while forcibly confined. She filed colour photos of T.K.’s body that depicted permanent scaring from crack pipe and cigarette burns all over his body and permanent duct tape scars on his ankles, as well as numerous cuts, contusions, and discolorations on his body and face [2]. She also referred to the serious and permanent psychological impact on the victim [3].
5The Crown submits she recommended only 5 years because Mr. Colin Lee was not the ringleader and has no criminal record.
6She acknowledges that consideration for time on strict bail conditions is appropriate pursuant to R. v. Downes [4] but submits no quantum. She also recognizes COVID-19 pandemic concerns, but notes the landscape is changing, inmates are vaccinated, and mask mandates are ending, though there are outbreaks in congregate custody settings.
7Mr. Bayliss on behalf of his client submits that a fit sentence is 2 years less a day on top of credit pursuant to R. v. Summers, [2014] Supreme Court of Canada 26 [5] for pre-sentence custody, Downes consideration for restrictive bail conditions, and Covid-19 pandemic restrictions anticipated in custody.
8Counsel filed a psychological assessment of Mr. Lee, material verifying his history, documentation about his efforts to rehabilitate himself and character references [6].
IV. Circumstances of Mr. Lee
9Mr. Chang Yul Colin Lee is 34 years old. He was 31 at the time he committed these offences. As a result of a psychological assessment report authored by Dr. Monik Kalia dated February 19, 2022, the Court has significant details about Mr. Lee’s childhood, adolescence, and young adulthood. [7]
10Mr. Lee was born in Seoul Korea and immigrated to Canada with his parents, his older sister, and his grandfather when he was 10 years old in 1996, settling in North York for the first five years and then moving to Richmond Hill where they have lived ever since. They operate a dry-cleaning business. Mr. Lee adapted easily to Canada. His parents were hardworking, family focused, provided for him, and expressed affection. There was no violence in the home or abuse of any kind. He was disciplined via talking and the withdrawal of privileges. They attended Church regularly as Presbyterian Christians. His older sister did well in school, married, moved to South Korea, had two children, and is studying to be a Minister.
11Mr. Lee said he was a ‘below average’ student and ‘did not put much effort’ into school. He lived in a wealthy area and wanted all the “stuff” his peers had and wanted the acceptance of the “cool and popular kids” with whom he started hanging out with. His father became aware of his desires and made efforts to fulfill his wishes. Mr. Lee did not have a learning disability, ADHD, or any need for special education. He was never bullied. He never failed a course or repeated a grade. He was suspended in high school for possession of marijuana and non-attendance. He dropped out of grade 12, though he completed his GED at the age of 19. [8]
12After leaving high school, Mr. Lee worked in construction, restaurants and assisted his parents in their business. At the age of 22, through his Church, he volunteered with the International Youth Fellowship in Africa for 17 months. He was stationed in Kenya for 14 months. He then went to live in South Korea with his sister for the next 4 ½ years where he worked in a restaurant run by his brother-in-law. [9]
13Mr. Lee returned to Canada at 26 years old. He had started smoking marijuana at 16 and drinking alcohol at 17. He used numerous drugs at parties until he was 20. It was not until after he returned to Canada, in 2016 that he began snorting cocaine which escalated to smoking crack cocaine. At the time he was in a failing business and was “desperate to become successful”. He felt he “lagged behind” his peers after his return to Canada and started to drink and smoke cocaine until he was using seven grams. It gave him a rush and made him feel strong.
14Neither his parents nor his girlfriend at the time, now his wife, were aware of the extent of his addiction. When his parents became aware of his drug use shortly before the offences, they tried to get him to see a physician but were unsuccessful. His pastor was also unaware of his addiction. All four expressed surprise when then discovered what Mr. Lee did to T.K. and said it was out of character. [10]
15After his arrest and release on bail, Mr. Lee reports he has abstained from substance use. He contacted the Addiction Services for York Region. He completed 4 education group sessions, 8 sessions with the Men’s Treatment Group, 15 individual counselling sessions and continues this counselling. [11]
16Mr. Lee also married his girlfriend in May of 2020 and lives with her in his parents’ home. His wife notes that he “struggles with low self-esteem” and tries to “show-off” when he is with his friends. They hope to start a family after the case is complete. [12]
17Mr. Lee also became a partner in the family business and obtained a full-time job as manager in a company dealing with hospital equipment in December 2020. [13]
V. Aggravating Factors
18The nature of the offences is aggravating. Mr. Lee inflicted gratuitous violence on T.K.. He sexualized the violence, humiliation, and degradation by stripping T.K. and holding him hostage naked and tied with duct tape. The attacks were repeated, and prolonged over a significant period of time.
19T.K. was physically, psychologically, and sexually violated. He was verbally, emotionally, and mentally abused. He was financially extorted. He was confined, filmed nude, and threatened. Intimate images of his girlfriend were copied.
20In essence, as T.K. testified at the preliminary hearing, Mr. Lee “tortured” T.K.
21The impact of the offences on T.K. are physically and psychologically permanent. In his Victim Impact Statement provided at an earlier time for a different purpose, T.K refers to the long-lasting psychological injuries caused by the “attacks”, as well as the permanent physical burns which will require scar treatment. In some of T.K.’s own words:
My life changed the day the incident occurred. Nothing was the same anymore. I am no longer able to empathize with people the same way I have prior to the incident. My lifestyle and activities have diminished. I avoid going to crowded areas.
My relationship with my girlfriend has become strained as a result of the incident. We do not discuss the incident as I don’t know how she will understand the psychological impact this has had on me.
Thinking about the attacks aggravates me and I try to never think about it.
…there is significant scarring all over my body from the multiple cigarette burns…and a broken nose that had not correctly healed. My family doctor had prescribed psychotherapy and scar treatment.
The attackers emptied my bank account and maxed out my credit card…
…at the time my attackers made me fear for my life. [14]
VI. Mitigating Factors
22Mr. Lee plead guilty. A guilty plea is a demonstration of taking responsibility and a show of remorse. It also saves judicial resources during this strained time in the criminal justice system because of the COVID-19 pandemic backlog [15]. Mr. Lee is entitled to the benefit of his guilty plea as a mitigating factor.
23However, the mitigation weight of Mr. Lee’s guilty plea is attenuated by the fact that he entered the plea three years after he committed the offences, after the victim testified at a 6-day Preliminary Hearing, and in the face of an overwhelming Crown case.
24Mr. Lee has no criminal record. The evidence of Mr. Lee’s character via the psychological report speaks to a record of community service, employment, and productivity from the time he left high school to the time of the offences. This is a period of over a decade, even during the development and escalation of his addiction.
25Mr. Lee has made significant rehabilitative efforts to identify and treat his substance use addiction. He attended and completed over 27 sessions of counselling with the Addiction Services for York Region and notably continues with counselling.
26Mr. Lee is also fortunate enough to have a strong support system consisting of his parents, his wife, and his pastor.
27Mr. Lee is said to have “insight into his behaviour that led to his involvement” in the offences and “he is genuinely remorseful for what he did and appreciates the traumatic impact on the victim” pursuant to Dr. Kalia. He stated he “is very ashamed of his behaviour.” [16]
28Also of note, is the relationship between Mr. Lee and his co-accused Mr. Kim. Mr. Lee also worked for Mr. Kim. Mr. Lee’s father, his pastor, and his wife as well as T.K. himself when he testified at the Preliminary Hearing, referred to a Korean cultural norm between an older man and a younger man. Mr. Kim “is in his 50s and in Korean culture sometimes it is difficult to go against a guy who is older. ‘I believe Colin could have refused if he was not using drugs at that time’” said his father. [17]
29It is relevant that Mr. Lee did not orchestrate the violence perpetuated on T.K.. There were instances when Mr. Lee tried to assist T.K. such as helping him with what he should write as “thirty things he had done in his life” to meet Mr. Kim’s satisfaction. This is an exception to his role of perpetrator, but it does demonstrate he was not the leader during the confinement.
30The Ontario Court of Appeal in Downes outlined that pre-trial Release conditions must be considered by a sentencing judge. The onus is on the offender to establish on a balance of probabilities the impact of such conditions. The amount of credit will vary depending on the length of time spent under these conditions, the stringency of the conditions, the impact on the offender’s liberty, and the ability of the offender to carry on normal relationships, employment, and activity. The amount of credit and the way it is considered as a mitigating factor is a matter for the sentencing judge and there is no rigid formula to determine credit amount. [18]
31Mr. Lee has spent just over 3 years [19] on a $500,000 surety Release on house arrest. During his release, Mr. Lee has lived with his supportive parents. He married and lives with his wife in his parents’ home. Also, Mr. Lee has solidified his standing in the family business by becoming a partner and obtained fulltime employment as a manager. Finally, Mr. Lee has availed himself of treatment and counselling for his substance addiction during his release. In addition, 2 of the 3 years Mr. Lee was on restrictive conditions, the community was also experiencing restrictive lockdown public health conditions where working and learning from home became the norm, restaurants, retail stores and malls were regularly closed or under limitations and only essential travel was conducted. Although, some weight to Mr. Lee’s restrictive conditions is warranted, Mr. Lee was able to carry on with his normal relationships and even strengthened them. He also improved his professional life and was able to gain better mental health via rehabilitative counselling.
32Another consideration is the public health situation due to the COVID 19 pandemic. Restrictions have significantly diminished. As a result of high vaccination rates, social distancing, masking, and numerous other factors, the lethality risk of the COVID 19 virus is substantially reduced. Nonetheless, our community environment is no longer as it once was, and the risk of infection remains. This is the case during incarceration as jail facilities are congregate settings. It is a mitigating factor that Mr. Lee will be serving a sentence under appropriate pandemic restrictive protocols while incarcerated. This will make the time he serves harsher than it would have been prior to the pandemic as stated in R. v. Khan, 2021 ONCJ 505 at paragraph 16.
33Finally, a significant mitigating factor is Mr. Lee’s low risk to re-offend and his rehabilitative potential. Dr. Kalia performed 20 different psychological tests on Mr. Lee and concluded as follows:
The intelligence testing and clinical impression indicates that Mr. Lee is functioning in the average range. The personality testing indicates that he has a tendency to impress people around him. I see him as an individual who has a strong need for acceptance coupled with lack of assertion in his social relationships. At the time of the alleged offences, he was using drugs and alcohol. His decision making was impaired, and he was not able to rectify the situation that evolved with the alleged victim. The unhealthy pattern of relating to the co-accused eventually blew-up in his face, with him being charged for his behaviour. He normally does not have a problem with aggression or controlling his behaviour. At this time, I do not see him having any ongoing problem of a psychological nature or an enduring anger problem. He has diligently addressed his drug abuse and has been successful to abstain from drugs after this incident. He is committed to follow-up with his therapist to consolidate on his relapse prevention plan.
He does not suffer from a personality disorder and his history is not indicative of any features of psychopathy. He has no prior criminal record or any antisocial orientation or value. He comes from a stable and caring family. He has solid support from his wife, parents and has strong ties with the church.
…. With the gains made to address his drug problem and given his history, I do not see him posing any ongoing threat to the public. [20]
VII. Sentencing Objectives
34The Criminal Code instructs that the goal of a criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society. (s. 718)
35To achieve this goal, just sanctions address one or more of the traditional sentencing principles which include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, promoting a sense of responsibility in offenders to acknowledge the harm they have caused the community, and to specific victims. (s. 718(a) – (f))
36In determining an appropriate sentence, the sentencing judge must consider the relevant aggravating and mitigating factors applicable to the circumstances of the case, and this includes the nature of the offence and specific features pertaining to the offender. (s. 718.2(a))
37Ultimately, the fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed, and the degree of responsibility of the person who committed it. (s. 718.1)
38How much emphasis a court places on each of the objectives will vary according to the nature of the crime and the circumstances of the accused. background, a guilty plea and its timing, remorse, the saving of judicial resources and any other factors relevant to the specific case. It also includes legal direction provided by the higher courts.
39The Supreme Court of Canada stated in R. v. Parranto, 2021 SCC 46 “Both sentencing ranges and starting points, where properly applied and subject to the correct standard of review on appeal, are consistent with the Code [21].
40Aggravated assault carries a maximum sentence of 14 years, Forcible Confinement carries a maximum sentence of 10 years, Transmission of Intimate images carries a maximum of 5 years, Extortion carries a maximum life sentence and Fraud Under a maximum of 2 years.
41Both the Crown and Defence provided me with numerous sentencing cases.
42The Crown predominantly relied on R. v. Tourville, 2011 ONSC 1677 and R. v. Thompson, 2013 ONCA 202.
43Justice Code in Tourville described the range of sentence as a wide one. He referred to an exceptional suspended sentence for a 26-year-old Indigenous woman from an abusive home, who suffered from alcoholism and had used a beer bottle in a bar room dispute and had rehabilitated herself by the sentencing hearing. He described the mid-range to be high reformatory sentences for first offenders involved in situations suggestive of consent fights where they resorted to excessive force. He described high-end range cases to be 4 to 6 years imprisonment imposed in situations involving recidivists with serious criminal records, or those that involved “unprovoked” or “pre-meditated” assaults with no suggestion of any elements of consent or self defence.
44In Thompson, Mr. Brown and Ms. Thompson lured a mentally delayed 22-year-old man living on social assistance to their apartment and with two others proceeded to confine him and torture him for a period of 17 consecutive days. The Ontario Court of Appeal imposed a sentence of 7 years and 2 months minus pre-sentence custody for Mr. Brown and a sentence of 6 years and 8 months less pre-sentence custody for Ms. Thompson.
45There are similarities to the Thompson case, and the Tourville range is helpful.
46The Crown also provided R. v. Thind, 2011 ONSC 6635, R. v. Roach, 2010 NSSC 370, R. v. Clark, 2009 ABCA 24, and R. v. Hernandez, 2009 BCSC 474 for consideration. Thind, is a case of a well-planned kidnapping of an innocent community leader involving several people and a ransom demand. Roach involved the aggravated assault and confinement of an older man in his own home who endured prolonged violence and sustained permanent scarring. In Clark, the offender perpetuated ‘shocking, cruel and demeaning offences’ over a period of 16 hours on his girlfriend. Hernandez was a foot soldier in a kidnapping motivated by money that involved planning, a firearm, and several other people. Each case, as can be expected, has similar features to the offences before me, and dissimilarities. The sentences imposed ranged from 6 years to 12 years.
47Defence Counsel’s cases ranged from 18 months to 7 years.
48Relying heavily on R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64 at paragraph 58, Counsel submits this is a case that calls for a sentence outside a particular range as the determination of an appropriate sentence is a “highly individualized exercise that goes beyond a purely mathematical calculation.”
49At the bottom end of the sentencing range is R. v. J.K., [2010] NLTD 125 and R. v. Moghaddam, [2010] ONCJ 44 with 18-month sentences meted out. In both cases, those the offenders had more challenging backgrounds to overcome than that of Mr. Lee, and their level of violence was lower and of shorter duration than the violence perpetrated by Mr. Lee.
50The only other case with a sentence similar in length to the one recommended by counsel is that of R. v. Pich, [2015] ONSC 1502. Mr. Pich committed a robbery with four other men. One of the men was armed with an imitation firearm and another had a knife. One patron sustained a minor cut. Mr. Pich was integral to the planning of the robbery as he worked at the restaurant and drove the others there, but his precise role during the robbery was unclear. Like Mr. Lee, Mr. Pich had no criminal record, had a supportive family, did counseling and rehabilitation while on release, appreciated the impact of his offence, expressed remorse, and had spent time on restrictive bail conditions. He too wished to “fit in”.
51However, the duration of the robbery and the level of violence used by Mr. Pich is not similar to the extended period of time Mr. Lee inflicted violence on the victim in this case. In addition, Mr. Lee also committed the offences of Extortion, Transmitting Intimate Images, and Fraud. Though Mr. Lee’s circumstances may be similar to those of Mr. Pich, the offences Mr. Lee committed are much more serious and numerous than those committed by Mr. Pich and so a sentence comparison is not helpful.
52Some cases referred to had mitigating features not present in the case before me, and the sentences imposed are higher than that recommended by the Crown here. For instance, in R. v. Gougoula, 2019 ONSC 4318 the Court imposed a sentence of 5.5 years with a very early guilty plea and no Preliminary Hearing. Ms. Gougoula too was high on drugs, though she was on two probation orders, she was much younger, had a mental disorder, attempted suicide and had been severely traumatized as a prostitute to finance her addiction.
53In R. v. D.D., [2017] ONSC 3289, a father who tortured his son was sentenced to 6 years for forcible confinement, given the principle of totality, as he received 18 years in total for far end of the spectrum child abuse offences.
54In R. v. Powell, [2017] ONSC 7437, Mr. Powell was sentenced to 7 years at the age of 35 for confining the victim. He had a serious criminal record, but was working, had children, family support and unlike Mr. Lee, had not participated in the violent torture of the victim.
55In R. v. Wright, [2015] ONSC 4508 the offender was sentenced to 5 years for a home invasion robbery where the two occupants of the residence were assaulted with a weapon. Granted Mr. Wright is similar to Mr. Lee in that he was 32, had no criminal record, family support, a good upbringing, and employment, but the gravity of the offence was not as serious as that of Mr. Lee.
56I reviewed the cases of R. v. Lewers, [2012] ONSC 5332, R. v. Davis, [2011] BCSC 146 (B.C. S.C.J.), R. v. A.D., [2004] ONCJ 271 (O.C.J.) and R. v. Neapetung, [2017] SKPC 43 (SK. P.C.). In each instance there are similarities and significant differences, however the applicable principles are the same, and the sentences all range from 4 years 8 months to 7 years. All higher than that which Counsel submits is appropriate for Mr. Lee.
57Regarding blameworthiness, Counsel submits Mr. Lee’s addiction manifested itself during the commission of these offences and did so in a manner that was out of character for Mr. Lee. He submits Mr. Lee was under the influence of alcohol and crack cocaine which should be considered a mitigating factor. He relies on R. v. Breen, [1982] Nfld. CA. No 43 where that court stated the effect of alcohol or drugs could be mitigating in such a circumstance.
58Although that could be the case in some situations, it is not applicable here. Mr. Lee’s conduct was not a brief, or a momentary lapse of judgement while under the influence of alcohol and drugs but rather a prolonged period where Mr. Lee repeatedly engaged in drinking and smoking crack during the 33 hours he confined, beat, and extorted T.K.
59I find Mr. Lee’s moral culpability to be high. It is only less so when compared to the blameworthiness of his co-accused who was the mastermind and leader of the entire event.
60In Mr. Lee’s case, the high-end range of sentences apply. Though Mr. Lee has no criminal record, the aggravated assault was inflicted unprovoked and over a sustained period. In addition, Mr. Lee forcible confined and extorted the victim in addition to transmitting images of his girlfriend from his phone to theirs and committing fraud.
61Though not the ringleader, Mr. Lee was integral to the severe and sustained violence T.K. endured. He was present during the entirety of the confinement. He participated in the extortion and the transmission of T.K.’s girlfriend’s intimate images. He took a leading role in taking T.K.’s money even after his co-accused released T.K into his control on the Wednesday morning when he drove T.K. to his own home.
62For a period of over 33 hours from a Monday night to a Wednesday morning in February 2019, Mr. Lee forcibly confined, viciously beat, burned, injured, humiliated, threatened, intimidated, frightened, defrauded, transmitted images of his girlfriend and extorted T.K.
63Mr. Lee committed heinous crimes. The trauma he inflicted on T.K. will reverberate throughout T.K.’s life and those he will interact with in the future. It will reverberate in the lives of Mr. Lee’s own loved ones well past his incarceration. This is a story of the extensive damage drug use can cause.
64Mr. Lee, who had been raised and supported by a loving family and religious community, who had worked and volunteered, who had experienced no mental health, physical or cognitive difficulties, who had not been subjected to any trauma of violence, abuse, or criminality, fell into drug addiction because he did not meet his own expectations of success by his late twenties.
65Denunciation and general deterrence are guiding principles in this case.
66Tempering what would otherwise be a more significant penitentiary sentence is the principle of restraint as Mr. Lee is a first offender. The court is mindful that his first sentence of imprisonment should be as short as necessary to fulfill the principles of sentencing as stated in R. v. Barclay, 2018 ONCA 114 at paragraph 43.
67In addition, Mr. Lee’s demonstrated rehabilitative efforts to manage his addiction merit recognition as does the fact he has a supportive family and pastor. But for these efforts and their demonstrated success, as well as the psychology report’s conclusion Mr. Lee is a low risk to re-offend, and his guilty plea, Mr. Lee’s sentence would very well attract a higher sentence than that recommended by the Crown.
VIII. Sentence
68Having considered the fundamental principles of proportionality, denunciation, general deterrence, restraint, and rehabilitation, having balanced all the aggravating, and mitigating factors in the context of the nature of all offences and the specific circumstances of Mr. Lee, the sentence is:
- 4 years in the penitentiary less pre-sentence custody enhanced to 3.5 months on the count of Aggravated Assault,
- 4 years jail less pre-sentence custody enhanced to 3.5 months on the count of Forcible Confinement concurrent,
- 4 years jail less pre-sentence custody enhanced to 3.5 months on the count of Extortion less presentence custody,
- 18 months jail concurrent on the count of Transmitting Intimate Images,
- 12 months jail concurrent on the count of Fraud,
69You will:
- be prohibited from possession weapons for life pursuant to s. 109.
- provide a sample of your DNA pursuant to s. 487.04.
- have no contact with the T.K. while you are incarcerated pursuant to s. 734.21
70Thank you to both counsel for your thorough and able submissions.
Released: July 14, 2022 Signed: Justice Cidalia C. G. Faria
[1] Exhibit 1: Agreed Statement of Facts signed by Mr. Lee, Mr. Bayliss and Ms. Liberman [2] Exhibit 3: Colour photos [3] Exhibit 2: Victim Impact Statement of T.K. also known as D. at the time of Won Kon Kim Guilty Plea [4] R. v. Downes [5] R. v. Summers, [2014] Supreme Court of Canada 26 [6] Exhibit 4: Book of Defence Sentencing Materials [7] Exhibit 4: Tab 2a, Psychological Assessment of Mr. Lee, Dr. Monik Kalia, C/ Psychi., Clinical & Forensic Psychologist, February 19, 2022 [8] Exhibit 4: Tab 2a, at pages 4, 10 [9] Exhibit 4: Tab 2a, at page 4-5 [10] Exhibit 4: Tab 2a, at pages 6, 10, 11, 12, 13 [11] Exhibit 4: Tab 2a, at pages 12, 13, [12] Exhibit 4: Tab 2a, at pages 11-12 [13] Exhibit 4: Tab 2a, at page 10. [14] Exhibit 2: Victim Impact Statement of T.K. also known as D. at the time of Won Kon Kim’s guilty plea [15] R. v. Gabourie, [2021] ONCJ 9, at ¶ 63 [16] Exhibit 4: Tab 2a, at pages 20, 8. [17] Exhibit 4: Tab 2b, at page 11 [18] Downes at ¶ 33,34, 37 [19] Mr. Lee was arrested on February 28, 2019, and released on April 26, 2019 [20] Exhibit 3: Tab 2a, at pages 19-20. [21] R. v. Parranto, 2021 Supreme Court of Canada 46 at ¶ 25
