ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: 822/12
Date: 20130404
Between:
HER MAJESTY THE QUEEN
M. Martin, for the Crown
- and -
D.K.
W. Mathers, for the Defendant
Defendant
Heard: March 19, 2013
REASONS FOR SENTENCE
Conlan J.
Introduction
[1] D.K. was tried before this Court, without a jury, on a six-count Indictment which alleged sexual offences committed by D.K. against R.K., the daughter of his former common law wife.
[2] After reserving my decision at the end of the two-day trial in Walkerton in January 2013, in Reasons for Judgment dated 31 January 2013 and reported at 2013 ONSC 625, I found D.K. guilty of counts 1 (sexual assault) and 2 (sexual interference), as attempts. I found D.K. not guilty of the other four offences.
[3] A Pre-Sentence Report was ordered, and the sentencing was adjourned to 19 March 2013. At that time, on consent, I entered a conditional stay of the finding of guilt on count 1 (sexual assault), as per the Kienapple principle, and a conviction on count 2 (sexual interference). After hearing submissions by counsel on sentence, I reserved my decision.
The Facts
[4] About two decades ago, when R.K. was approximately nine years old, D.K. attempted to touch her for a sexual purpose.
[5] She was standing near the foot of the waterbed in her mother’s bedroom with her pants and underwear down. D.K. was behind her. They were about to have anal intercourse, however, the incident was interrupted when R.K.’s mother, the common law wife of D.K., came home.
The Offender
[6] D.K. is 48 years old, born […], 1964. He was in his late twenties at the time of the offence.
[7] He has a criminal record which includes a related conviction for sexual assault in 1987, committed against a young child of his then partner; a conviction for assault with a weapon in 1999, committed against the mother of R.K.; and a conviction for assault in 2007, committed against the child of his then partner.
[8] The related conviction in 1987 resulted in a sentence of one year imprisonment and two years of probation. That occurred just a few years before the offence committed against R.K.
[9] D.K. has a decent employment history including six years with the Canadian Armed Forces, and he is currently working with his partner in the operation of a resort park in the area of Huntsville, Ontario.
[10] He is fairly healthy although he has diabetes. After struggling with an alcohol addiction for many years, D.K. has generally been sober since his conviction in 2007.
[11] The Pre-Sentence Report confirms that D.K. was himself a victim of abuse as a teenager. The details of that abuse are not before me.
The Positions of the Crown and the Defence
The Crown
[12] The Crown requests a sentence as follows: two years’ imprisonment, probation of an unspecified duration, a s.109 Criminal Code of Canada Order for ten years, a Primary DNA Order, a s.161 Criminal Code of Canada Order of an unspecified length and a Sex Offender Registry Order for twenty years.
[13] The Crown relies upon denunciation and deterrence as the paramount sentencing objectives and points to four aggravating factors: the tender age of the victim at the time of the offence, the relationship of trust and authority between D.K. and the victim, D.K.’s criminal record, and D.K.’s lack of remorse and acceptance of responsibility.
[14] The Crown concedes that a Conditional Sentence Order is statutorily available for D.K.: Regina v. E.R.F., [2009] O.J. No. 994 (S.C.J. – Stinson J.).
The Defence
[15] The Defence opposes the s. 161 Criminal Code of Canada Order.
[16] The Defence requests a Conditional Sentence Order of two years less one day in length with strict terms amounting to house arrest with limited exceptions.
[17] The Defence does not dispute that denunciation and deterrence are the main sentencing objectives.
[18] The Defence does take issue with the Crown’s characterization of D.K. having been in loco parentis vis a vis the victim at the time of the offence.
The Mandatory and/or Unopposed Sentencing Issues
[19] A Primary DNA Order shall issue.
[20] A Sex Offender Registry Order shall issue for a term of twenty years.
[21] A s.109 Criminal Code of Canada Order (firearms and weapons prohibition) shall issue for a term of ten years under subsection (2)(a) and for life under subsection (2)(b).
The S.161 Criminal Code of Canada Order – Prohibition on Attending Parks, Playgrounds and Other Places That Children Frequent
[22] Although I shall consider this Order, its imposition is discretionary.
[23] I decline to make the Order. The protection of the victim and her family and the public in general will be adequately addressed through the probation Order that I will ultimately be imposing upon D.K., and at least part of what is addressed in subsection 161(1) of the Code will be dealt with by the terms of that probation Order.
The Defence Request for a Conditional Sentence Order
[24] Despite the able submissions of Mr. Mathers, I decline to grant to D.K. a Conditional Sentence Order under s.742.1 of the Criminal Code of Canada.
[25] Although such an Order would not necessarily endanger the safety of the community if the terms and conditions are crafted carefully, it would be contrary to the fundamental purpose and principles of sentencing for this offence committed by this offender.
[26] I disagree with the Crown that D.K.’s lack of remorse and acceptance of responsibility are aggravating factors. They are not. They are neutral. D.K. is perfectly entitled to maintain his innocence as he did with the author of the Pre-Sentence Report. But the other aggravating factors pointed to by the Crown are sufficiently serious such that denunciation and deterrence, both specific and general, require jail.
[27] There is no question that D.K. was in a position of trust and authority over the victim. It is unnecessary to determine whether he was in the place of a parent. He was living common law with the mother of R.K. He was a caregiver for R.K.
[28] R.K. was just a young girl when D.K. attempted to have anal intercourse with her. And this crime was perpetrated only a few years after D.K. was convicted of sexually assaulting the similar aged daughter of his then partner.
[29] There are no more credits in D.K.’s bank. He must be imprisoned.
The Length of Imprisonment
[30] I agree with Mr. Mathers that two years in the penitentiary is too long on these facts. The decision relied upon by the Crown, Regina v. A.G., 2004 36065 (ON CA), [2004] O.J. No. 4563 (C.A.), involved much more egregious facts.
[31] Having regard to the circumstances of the offender, the facts, the paramount principles of sentencing being denunciation and specific and general deterrence but recognizing as well the prospect of rehabilitation before and after today, and considering as well the impact that this offence has had on R.K. as reflected in her Victim Impact Statement, I have concluded that a fit sentence is 12 months’ imprisonment.
[32] If it were not for the relatively less serious facts of this case, I would not have hesitated to impose a sentence closer to the range suggested by the Crown.
Probation
[33] D.K.’s sentence of one year in custody will be followed by probation for a period of two years. In addition to the statutory terms, the conditions shall be those outlined in clauses 1 through 8 on page 7 of the Pre-Sentence Report.
Conclusion
[34] On count 2, D.K. is sentenced to a period of imprisonment of 12 months to be followed by probation for two years. A Primary DNA Order is made. A Sex Offender Registry Order is made for twenty years. A s.109 of the Criminal Code of Canada Order is made for ten years and life under subsections (2)(a) and (2)(b) respectively.
Postscript
[35] It is dangerous to set out parameters for sentencing given the myriad of factors at play.
[36] But just as the Court of Appeal for Ontario has declared that adult offenders in positions of trust who sexually abuse children regularly and persistently over substantial periods of time can expect to receive mid to upper single digit penitentiary terms of imprisonment, it is my view that any adult offender in a position of trust who commits a sexual offence against a child should expect to receive a custodial sentence. There will always be exceptions, but that expectation will generally prevail. Whether the custodial sentence can be served in the community will depend upon too many factors to enumerate here, although the starting point is the language of s.742.1 of the Criminal Code. Conditional Sentence Orders will generally be rare.
[37] For D.K., he will have to serve the sentence in a correctional facility.
Conlan J.
Released: April 4, 2013
COURT FILE NO.: 822/12
DATE: 20130404
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
D.K.
Defendant
REASONS FOR SENTENCE
Conlan J.
Released: April 4, 2013