SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
K.L.
REASONS FOR SENTENCE
BEFORE THE HONOURABLE JUSTICE M. FUERST
on March 6, 2015, at BARRIE, Ontario
APPEARANCES:
G. Barker Counsel for the Crown
U. Kancharla Counsel for K.L.
FRIDAY, MARCH 6, 2015:
REASONS FOR SENTENCE
K.L. pleaded guilty to a number of counts of sexual assault, sexual interference and sexual touching. The victims were his two teenaged granddaughters, who each were under the age of 18 years at the time.
Crown and defence counsel jointly submit that Mr. K.L. should receive a jail term which, after credit for pre-sentencing custody is taken into account, would be followed by a period of probation.
The Circumstances of the Offences
The sexual activity included touching the victim’s breasts, digital penetration, oral genital contact by Mr. K.L., rubbing of his penis against the victim’s genital area, simulated intercourse and masturbation of Mr. K.L. by the victim to the point of ejaculation. On two occasions he shaved the victim’s pubic
hair. On others, he had the victim watch pornographic videos with him. Sometimes he used a vibrator against the victim’s genital area.
There were multiple acts against each victim. Most of them occurred at Mr. K.L.’s home, but a
few occurred in hotel rooms. The abuse went on for a period of years before it came to light in 2014. None of the sexual activity was consensual on the part of either victim.
The devastating impact of the offences on the victims and other family members was expressed in detail in the six Victim Impact Statements filed. As the mother of the victims, who is Mr. K.L.’s own daughter said, “No family should have to go through this.” The emotional distress caused by the betrayal of the trust placed in him as a grandfather, father and husband is palpable and lasting.
The Circumstances of Mr. K.L.
Mr. K.L. is 68 years old. He and his wife married in 1969. They have two daughters, who in turn have a total of five children. Not surprisingly, Mr. K.L.’s marriage is at an end, and he is estranged from his children and grandchildren.
Mr. K.L. has no prior criminal record. He worked in the sheet metal industry until his retirement at the age of 60, and supported his family financially.
Mr. K.L. expressed, through his lawyer, a willingness to participate in counselling related to the commission of the offences.
The Positions of the Parties
Crown and defence counsel jointly submit that Mr. K.L. be sentenced to a global term of three years in jail, less credit of one year and 52 days of pre-sentencing custody calculated on a one-and-a-half to one basis, followed by 18 months of probation. They agree that there should be a DNA order, a Section 109 order, a SOIRA order for life and a Section 743.21 non-communication order.
The Principles of Sentencing
The objectives of sentencing long recognized at common law have been codified in Section 718 of the Criminal Code. They are: the denunciation of unlawful conduct; deterrence, both general and specific; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims or the community; and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.
Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be
increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors, including that the offence involved a breach of trust and
that it involved abuse of a person under the age of 18 years. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.
Analysis
In the case of sexual offences against young persons, the principles of denunciation, deterrence both general and specific, and the separation of the offender from society in order to protect the public must be paramount.
The aggravating factors in this case are many. They include:
- Mr. K.L. offended against not just one, but
two victims;
- The victims were young persons under the age
of 18;
- Mr. K.L. was in a position of trust in
respect of both victims as their
grandfather;
- Some of the acts occurred when the victims
were visiting his home;
- The acts included intrusive sexual activity
just shy of actual intercourse;
- In some instances, Mr. K.L. exposed his
victim to pornography or used a sexual
device in the course of the assault;
- There were multiple acts over a period of
time;
The victims have suffered emotionally;
Mr. K.L.’s behaviour suggests an underlying
sexual problem, but he has had no
professional assistance.
In mitigation, Mr. K.L. is a first offender. He pleaded guilty, which is a sign of remorse and willingness to accept responsibility for his offences. He waived the preliminary hearing, so that neither victim had to testify. He expressed remorse in court. He is prepared to take counselling.
These are offences of extreme gravity. Mr. K.L.’s conduct can only be described as reprehensible. He has caused immense harm to those who loved and trusted him.
Notwithstanding that he is before me as a first offender, I agree with Crown and defence counsel that a significant term of imprisonment is
necessary. I accept the joint submission put to me.
Mr. K.L., please stand.
On count one, I sentence you to three years in jail less credit for pre-sentencing custody of one year and 52 days, leaving a sentence to be served of one year, 10 months and 13 days in jail.
The jail term is followed by 18 months of probation. The conditions of probation are the statutory conditions plus the following.
- Report to a probation officer immediately
upon release and thereafter as required;
- Reside at an address approved by the
probation officer and not change it without
prior written approval of the probation
officer;
- Attend for such assessment and counselling as
your probation officer directs and not stop
without prior written permission of the
probation officer;
Sign releases of information between your counsellor and the probation officer so that your progress can be monitored;
Have no contact, direct or indirect, with C.C.2, M.C., C.C.2, C.C.1, J.L. or S.L., except through counsel for the
purpose of Family Court proceedings or by order of a judge of the Family Court.
The same sentence is imposed concurrent on each of counts six, seven, fourteen, eighteen,
twenty-three, twenty-five, thirty, thirty-two and thirty-five.
I order on all counts that you provide bodily fluid samples for the purpose of DNA testing. I impose a Section 109(2)(a) weapons prohibition order for 10 years and a Section 109(2)(b) order for life on all counts. There is a SOIRA order for life on all counts.
Under Section 743.21 of the Criminal Code, I order that you have no communication, direct or indirect, with the six persons named above while you serve the custodial portion of the sentence, except through counsel for the purpose of Family Court proceedings, or by order of a judge of the Family Court.
I recommend that you serve your sentence at the Ontario Correctional Institute for the purpose of obtaining counselling while in custody.
You may be seated.
Is there anything that needs to be clarified Mr. Barker or Ms. Kancharla?
MS. KANCHARLA: No, Your Honour.
MR. BARKER: No thank you, Your Honour.
MS. KANCHARLA: Have we addressed the victim fine surcharge?
MR. BARKER: I have no submissions one way or the other.
THE COURT: All right, the victim fine surcharge amount Madam Registrar would be?
COURT REGISTRAR: $1800.
THE COURT: I have to say I’m not sure how an individual who’s going to be likely approaching 70 years old by the time he’s released from custody will pay that amount of money, but it is mandatory and there was no hearing with respect to whether or not it should be imposed so...
MS. KANCHARLA: Could I ask...
THE COURT: I will make that order.
MS. KANCHARLA: Could I ask that a fine be imposed in addition to each of the, on each of the offences, that would offer a nominal amount and then that would not have him face such financial hardship.
THE COURT: Well, the surcharge is set by statute now at a particular amount.
MS. KANCHARLA: I think 30 percent of whatever fine would be imposed Your Honour.
THE COURT: Pardon me?
MS. KANCHARLA: It might – if Your Honour would impose a fine then the surcharge would amount to 30 percent of that fine.
THE COURT: I don’t think I can impose a fine legally. I’ve imposed jail and probation. Do they pre-date? The offences pre-date, in that case it’s not mandatory and it’s not being
sought by the Crown so I’m not going to impose it. Thank you for checking that Madam Registrar. All right, just let me endorse the indictment. And the remaining counts Mr. Barker?
MR. BARKER: I’m going to ask be withdrawn please.
THE COURT: I have endorsed that the sentencing hearing was held. Mr. K.L. is sentenced on count one to three years in jail less pre-sentencing custody calculated on a one-and-a-half to one basis as one year and 52 days leaving a sentence to be served of one year, 10 months and 13 days in jail followed by 18 months probation on conditions read into the record. The same sentence is imposed concurrent on each of counts six, seven, fourteen, eighteen, twenty-three, twenty-five, thirty, thirty-two and thirty-five. There’s a SOIRA order for life on all counts, a DNA order on all counts, a Section 109(2)(a) order for 10 years, and a Section 109(2)(b) order for life on all counts, and a Section 743.21 order on all counts. The remaining counts are withdrawn at the request of the Crown.
Madam Register, I’ll ask you just to make sure that the sentence has been properly imposed on each of the counts to which there was a guilty plea. I’ve tried to check during the break, but just in case I’ve missed anything, that obviously was my intention to sentence on each count.
COURT REGISTRAR: Yes, Your Honour.
THE COURT: Concurrent to count one. All right does that conclude the K.L. matter then?
MR. BARKER: I believe it does.
THE COURT: All right. Thank you.
MS. KANCHARLA: Thank you Your Honour.
THE COURT: All right, thank you.
MS. KANCHARLA: I thank my friend.
THE COURT: And I will just add, sorry, on the indictment the recommendation that the sentence be served at OCI. Thank you. I provided that recommendation on the indictment. Thank you.
MS. KANCHARLA: Thank you.
Approved for Release: April 20, 2015
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Adrienne Readman, A.C.R., certify that this document is a true and accurate transcript of the recording of R. v. K.L. in the Superior Court of Justice, held at Barrie Ontario, on March 6, 2015 taken from Recording No. 3811_01_20150306_090019_10__FUERSTM.dcr which has been certified in Form 1 by C. Craig.
April 21, 2015
Date Adrienne Readman,
A.C.R.
*This certification does not apply to the Reasons for Sentence which was judicially edited.
**Photostatic copies of this transcript are not certified and have not be paid for unless they bear the original signature of Adrienne Readman in yellow ink and accordingly are in direct violation of the Administration of Justice Act, Ontario Regulation 587/91 as amended to O.Reg.135/94