Court File and Parties
COURT FILE NO.: CR-18-3-549 DATE: 2019-12-02 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – K. B.
COUNSEL: Anita Kocula, for the Crown Kristin Bailey, for the Accused
HEARD: October 25, 2019
REASONS FOR SENTENCE
P.J. Monahan J.
[1] K.B. was charged with four counts of sexually assaulting S.F. and one count of unlawfully confining her, between December 18 and 21, 2017. On September 12, 2019, following a trial before me, I found K.B. guilty of the four counts of sexual assault and not guilty of the count of unlawful confinement. He is now before me for sentencing.
Circumstances of the Offences
[2] S.F. is a vulnerable adult. Although she is 26 years old, she has the intellectual capacity of a much younger person. She lives with her mother, A.F., who cares for her and her daily needs. S.F. is able to read at what A.F. perceives to be a grade 1 or 2 level. S.F. is suggestible, can be easily influenced, and is more comfortable playing with children than with adults.
[3] It was agreed at trial that S.F.’s evidence should be treated as that of a child witness.
[4] On the evening of December 18, 2017, A.F. and S.F. had an argument while they were shopping at a local grocery store. As a result of this argument, A.F. required S.F. to hand over her cell phone. S.F. was angry over the loss of her cell phone. Unbeknownst to A.F., S.F. left the store and boarded a nearby subway, apparently intending to go to her aunt’s house. She rode the subway to Kennedy Station, where she boarded a TTC bus.
[5] Shortly after S.F.’s departure, A.F. noticed that S.F. was no longer in the grocery store. A.F. searched the nearby area but could not find S.F. A.F. called the police and reported S.F. missing. The police commenced a search but were not able to locate S.F.
[6] While she was riding on the TTC bus, S.F. met K.B. They were unknown to each other prior to that date. K.B. asked S.F. what she regarded as “personal questions”, including where her parents were. It would have been apparent to K.B. that S.F. had a limited intellectual capacity and was vulnerable. Although the precise details of their interaction on the bus ride are not entirely clear, K.B. and S.F. got off the bus together and walked to K.B.’s residence.
[7] S.F. remained at K.B.’s residence for the next four days. Each morning, K.B. would leave for work, locking the door to his apartment with S.F. remaining inside. When K.B. returned home late in the evening he was inebriated and would sexually assault S.F. The assaults occurred in K.B.’s shower, where both K.B. and S.F. were naked, as well as in K.B.’s bedroom. The sexual assaults included vaginal penetration, fellatio, as well as various other forms of sexual touching. S.F. objected to the assaults, telling K.B. that these kinds of activities were against her religion, but K.B. ignored her objections.
[8] K.B. would also yell at S.F. and call her names such as “fucking bitch”, “retarded”, and tell her she was ugly and that no one liked her. He also choked her, pushed her down onto the floor in the kitchen, and threatened her with a knife.
[9] On December 21, 2017, K.B. learned from a media report that S.F. had been reported as missing and that the police were looking for her. K.B. became angry and threw his cell phone at S.F. S.F. called her uncle who, in turn, called the police.
[10] The police attended at K.B.’s residence, picked up S.F. and drove her home. Initially, S.F. did not report the sexual assaults. However, shortly after returning home, she reported the assaults to her cousin. The police were called and S.F. subsequently provided a videotaped statement describing the assaults that had occurred over the four days that she had been at K.B.’s apartment. K.B. was arrested and charged as described above.
[11] At trial, K.B. did not testify. However, he maintained through his counsel that none of the assaults described by S.F. had occurred.
[12] I found that the Crown proved beyond a reasonable doubt that K.B. sexually assaulted S.F. on each of the days she was at his apartment. I accepted S.F.’s evidence as to the nature of the assaults and the fact that she did not consent to sexual activity with K.B. Despite minor inconsistencies in her evidence, on the whole, her evidence was credible and consistent. S.F. never wavered in her evidence regarding the sexual assaults, nor was her evidence undermined in any meaningful way.
[13] Moreover, S.F.’s account of the sexual assaults is supported by the surrounding circumstances. S.F. is a vulnerable adult with limited intellectual capacity. She had no phone, no money, and no way of contacting her family. There is no innocent explanation for the fact that K.B. kept S.F., a vulnerable adult, at his apartment for four days without telling anyone.
[14] Based on the totality of the evidence, I had no doubt that K.B. sexually assaulted S.F. on each of the four days that he kept her at his apartment. I therefore found K.B. guilty of the four counts of sexual assault.
[15] However, I was left with a reasonable doubt as to whether K.B. had confined S.F. in his apartment against her will. In her evidence, S.F. had never indicated that she had attempted or wished to leave K.B.’s residence. Further, when she was provided with the opportunity to call her mother using K.B.’s cell phone, she called her uncle instead and did not ask him to come and get her. I therefore acquitted K.B. of the count of unlawful confinement.
Impact on S.F. and A.F.
[16] A.F. filed a Victim Impact Statement (VIM) on behalf of both S.F. and herself. The VIM attests to the profound and lasting impacts that these assaults have had on both S.F. and A.F.
[17] A.F. indicated that prior to the assaults, S.F. had been able to go by herself to the park, play with other children, and ride her bike alone. However, since the assaults, S.F. is unable to go outside on her own. S.F. sometimes screams while she is taking a shower. S.F. has also had difficulty sleeping and stays up late at night.
[18] Since these assaults, A.F. is constantly worried about S.F. and her safety. A.F. is unable to concentrate on her work. She constantly has to supervise S.F. When S.F. goes to school, A.F. is always checking her phone to make sure that S.F. has arrived to school safely. A.F. describes the four days when S.F. was missing as the worst days of her life. For those days she could not sleep or eat. She was constantly going around the neighbourhood searching for S.F. and posting her pictures. Every time the police came to her house she was worried it was bad news and that she was about to be told the S.F. had died.
[19] The assaults have had a continuing psychological impact on A.F. She is afraid to watch the news on television because she does not want to hear about anyone else having a missing child. She is so concerned for S.F.’s and her own safety that she has asked to move to a different area. She does not want K.F. to ever have any contact with S.F. or any other members of her family.
Circumstances of the Offender
[20] K.B. is 40 years old. He did not complete high school, although at some point he did attend a program offered by Everest College in Scarborough. Since graduating from high school, he has been employed in various factory jobs. At the time of the offence he was working in the shipping department of a sporting-goods factory in Scarborough. He indicates that he had been planning on going back to school sometime in 2018 to attend a program in heating and air conditioning systems.
[21] K.B. is single. He recently learned that he has a 15-year-old daughter who lives with her mother. He has no mental health or addiction issues.
[22] K.B. has a criminal record dating back to a conviction for obstructing a peace officer in August 2005. He has two convictions for common assault, in January 2010 and April 2010, and a conviction for assault causing bodily harm in September 2016. He also has a variety of convictions for failure to comply with probation orders and a recognizance. His most significant sentence was a one year custodial sentence, along with one year probation, received for the 2016 assault causing bodily harm.
Applicable Sentencing Principles
[23] The purpose and principles of sentencing are set out in s. 718 of the Criminal Code, R.S.C. 1985, c. C-46. Parliament has mandated that the fundamental purpose of sentencing is to protect society and contribute to respect for the law and the maintenance of a just, peaceful and safe society. Trial judges are required to impose a just sanction that has one or more of the following six objectives:
a. to denounce unlawful conduct; b. to deter the offender and others from committing offences; c. to separate offenders from society, where necessary; d. to assist in the rehabilitation of 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 acknowledge the harm done to victims and to the community.
[24] A fundamental principle of sentencing is proportionality, namely, that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender. A just sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The overarching duty of the sentencing judge is to determine a “just and appropriate” sentence; this is necessarily a highly individualized exercise, tailored to the gravity of the offence and the moral blameworthiness of the offender. R. v. M. (C.A.), [1996] 1 SCR 500, at para. 82.
[25] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances related to the offence or the offender. Parliament has specifically mandated that where the offender has abused a person under the age of 18 years, that factor shall be deemed an aggravating circumstance. Criminal Code, s. 718.2 (a) (ii.1). This principle is reinforced by s. 718.01 of the Criminal Code, which provides that when a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
[26] In applying these various principles, the Court of Appeal has made it clear that adult offenders who prey upon innocent children must know that they will pay a heavy price. As Moldaver J.A. (as he then was) observed in R. v. DD: (2002), 58 O.R. (3d) 788 (C.A.), at paras. 34-35:
…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.
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.
[27] To the same effect is R. v. Woodward, where Moldaver J.A. stated that adult offenders who seduce and violate young children must face the prospect of a significant penitentiary term: 2011 ONCA 610, 107 O.R. (3d) 81, at paras. 75-76:
… I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender’s prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society’s well-being and the well-being of our children must take precedence.
[28] I recognize that strictly speaking S.F. is not a child. Nevertheless, given her limited intellectual abilities, both Crown and defence agree that she functions at the level of a child. She is a vulnerable person who can easily be taken advantage of by adults, and whose vulnerability was exploited by K.B.
[29] Counsel for K.B. argued that the circumstances of the present case are distinguishable from those involving sexual abuse of a child since, in the latter case, the offender may be a pedophile. Such an offender may present a greater risk for re-offending in the future. Nevertheless, counsel for K.B. conceded that the fact that S.F. has the intellectual capacities of a child is an extremely aggravating circumstance which is appropriately taken into account in determining a fit sentence in this case.
[30] As the Court of Appeal pointedly observed in DD and Woodward, in cases involving the exploitation of young children the focus of sentencing should be on the harm caused to the child. Although S.F. is not legally a child, she is in the same position of vulnerability as a child, and the impacts on her as described in the VIM are similar to those experienced by children. Other decisions of this Court have found that sexual offences committed against persons over the age of 18 but with limited intellectual capacities should be treated on the same footing as cases involving offences involving children. R. v. KJ, 2019 ONSC 2335, at paras. 58 – 59; R. v. CC, 2013 ONSC 654, at para. 41. I therefore find that the Criminal Code principles mandated in cases involving sexual offences against children, as well as the comments of the Court of Appeal in DD and Woodward, are relevant and applicable in this case.
Positions of the Parties
[31] The Crown submits that a global sentence in the range of 6 to 8 years would be appropriate in this case. In seeking a sentence in this range, the Crown points to the following aggravating factors:
a. the limited intellectual ability and vulnerability of the victim, S.F.; b. the fact that the assaults continued over a four-day period, as opposed to being a single incident; c. S.F. had no cell phone, no money, and no way of contacting her family, and thus had no means of escape; d. S.F.’s vulnerability would have been apparent to K.B. from the time he met her on the bus; e. K.B. has a significant criminal record, including a conviction for assault causing bodily harm in 2016, for which he received a one year sentence; and f. the assaults have had a profound effect on both S.F. and her mother A.F., as disclosed in the VIM.
[32] The Crown argues that there are no mitigating factors in this case.
[33] Counsel for K.B. submits that a sentence in the range of three years would be appropriate. Counsel concedes that preying on a vulnerable victim such as S.F. is an extremely aggravating circumstance. Counsel is unable to point to any mitigating factor which would justify leniency in K.B.’s sentence. However, counsel relies upon cases in which offenders who committed sexual offences against children or vulnerable adults received sentences in the range of three years or less.
Case Law
[34] The cases relied upon by the Crown were as follows:
a. R. v. KJ, (SCJ 2019), in which an adult offender had sexually assaulted a victim with the intellectual capacity of a 5 to 9-year-old on a single occasion. The offender was a trusted neighbour and was considered a friend of both the victim and the victim’s mother. The offender also had a criminal record for sexual misconduct. A sentence of six years was imposed; b. R. v. Woodward (CA 2011), in which the offender had sexually assaulted a 12-year-old girl. The offender had contacted and groomed the victim over the internet and the assault involved vaginal penetration and fellatio. He was sentenced to 5 years for sexual assault and 18 months consecutive for the offence of luring a child for a sexual purpose. These sentences were upheld by the Court of Appeal; c. R. v. Nana-Effah (SCJ 2009), where the victim was a 10-year-old girl with a learning disability. The offender, who was 25 years old at the time of sentencing, had assaulted the complainant on more than one occasion over a 3-week period, and the assaults involved vaginal penetration and fellatio. The offender also had an extensive criminal record. A sentence of 8 years was imposed; d. R. v. DD (CA 2002), in which the accused was found guilty of 11 sex-related offences involving four young boys, committed over a seven-year period. The victims had ranged in age from 5 to 8 years old, and the offences involved all manner of sexual activity. A global sentence of 9 years and one month was upheld on appeal by the Court of Appeal.
[35] The cases relied upon by the defence were as follows:
a. R. v. Olawale (SCJ 2013), in which the offender had assaulted a 15-year-old girl whom he had met at a youth shelter. The offender persuaded the victim to come back to his apartment where he sexually assaulted her, including vaginal penetration. The offender had no prior criminal record. He received a sentence of 26 months; b. R. v. CC (SCJ 2013), where the victim was 20 years old but functioned cognitively at a mental age of a 3 to 5-year-old child. The victim was assaulted on one occasion and became pregnant. The pregnancy was subsequently aborted. The offender did not have a criminal record. The court noted that the offence involved a single act of sexual intercourse and there was no violence or threats of violence. A sentence of 3 years was imposed; c. R. v. Ngoddy (OCJ 2016), where a staff member at a group home had assaulted a female resident who was 28 years old but who suffered from a variety of conditions including autism, severe anxiety disorder, and had a developmental disability. The offender had assaulted the victim by kissing the victim’s breasts, touching her vagina, and placing his penis on her body. The offender was 54 years old, had no criminal record, and had been gainfully employed for many years. He received a sentence of 13 months incarceration, followed by 3 years probation.
Analysis
[36] In my view, none of the cases relied upon by the parties is precisely analogous to the circumstances in the present case. That said, I find that the cases cited by counsel for K.B. are clearly distinguishable from this case. Although the cases relied upon by K.B. all involved victims who were children or vulnerable adults, in each instance the assaults involved a single incident, without violence, and where the offender had no prior criminal record. In contrast, K.B. assaulted S.F. over a four-day period, and the assaults only stopped when K.B. learned that the police were searching for S.F. K.B. also threatened S.F. and pushed her to the ground on at least one occasion. K.B. also has a significant criminal record.
[37] I note that the cases cited by the Crown involved sentences for sexual assault that range from a low of 5 years in Woodward to a high of 9 years in DD. Given the vulnerability of S.F. and the fact that these assaults continued over a four-day period, an appropriate sentence for K.B. must fall within this range.
[38] I am mindful of the Court of Appeal’s clear statements in DD and Woodward to the effect that, in cases involving assaults on children and vulnerable adults, the principles of denunciation, general and specific deterrence, and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing. At the same time, Moldaver J.A. in Woodward indicated that the effects of a conviction on the offender and the offender’s prospects for rehabilitation will always warrant consideration.
[39] In that regard, while K.B. has a significant criminal record, this is his first conviction for a sexual offence. As such, I am prepared to accept the submissions from his counsel to the effect that K.B. may have a somewhat lower risk of re-offending than other offenders with significant records involving social misconduct.
[40] On balance, taking into account all of the relevant sentencing principles and the aggravating circumstances in this case, I find that a fit and just sentence for each of the 4 counts of sexual assault is 5 years, to be served concurrently with each other.
[41] K.B. has been in custody since January 8, 2018, a total of 694 days. The parties are agreed that he should receive credit for this period of pretrial custody on an enhanced 1.5 to 1 basis. This results in a total credit for pretrial custody of 1041 days.
[42] Deducting this credit for time served from the global sentence of 5 years, results in a remaining period of incarceration of 2 years and 54 days.
Disposition
[43] I sentence K.B. to 5 years for each of the counts of sexual assault, to be served concurrently. After deducting credit for time served, K.B. has a remaining sentence of 2 years and 54 days to be served.
[44] I also make the following ancillary orders in relation to K.B.:
a. a weapons prohibition for 10 years, pursuant to s. 109; b. an order for the taking of a DNA sample, pursuant to ss. 487.04 (a) (xi.3) and 487.051 (1); c. an order to comply with the terms of the Sex Offender Information Registration Act, S.C. 2004, c. 10 for life, pursuant to ss. 490.011 (a) (xvi), 490.012 (1), and 490.013 (2.1); and d. an order that K.B. not communicate, directly or indirectly, with S.F. or A.F. during the term of his incarceration, pursuant to s. 743.21 (1).
P. J. Monahan J.
