R. v. R.K., 2015 ONSC 2391

COURT FILE NO.: OCJ #536/12 – SCJ #50/14

DATE: 20150413

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

R.K.

Respondent

Lynn Ross, for the Crown

Clyde M. Smith, for the Applicant

HEARD: in Kingston October 20, 2014, February 13, March 11 and 13, 2015

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION

REASONS FOR sentencing

blishen j.

Introduction

1On October 20, 2014, R.K. entered pleas and was found guilty of: two counts of making child pornography in the form of digital and video files with respect to his common law partner’s daughter S.T. and her friend, S.V., contrary to Section 163.1(2) of the Criminal Code; two counts of possession of child pornography with respect to the same two girls, contrary to Section 163.1(4) of the Criminal Code; and three counts of voyeurism, contrary to Section 162(1)(b) of the Criminal Code with respect to his common law partner J.D., her daughter, S.T. and a third count with respect to her other two daughters, her step-daughter and 13 others.

2As of November 1, 2005, making child pornography imposes a minimum sentence of one year imprisonment and a maximum sentence of ten years imprisonment.

3As of the same date, possession of child pornography imposed a minimum sentence of 45 days imprisonment and a maximum sentence of five years imprisonment until August 10, 2012, when the minimum sentence was increased to six months imprisonment.

4Voyeurism imposes no minimum sentence and a maximum sentence of five years imprisonment.

5At the sentencing hearing an Agreed Statement of Facts (Exhibit #3) was filed along with: a disk comprising digital image and video files relating to the charges before the court (Exhibit #1); a summary of the relevant portions of the disk (Exhibit #2); a Pre-Sentence Report dated February 5, 2015 prepared by Probation and Parole officer Andria Richardson (Exhibit #4); a Sexual Behaviours Assessment prepared by Psychologist Dr. Anthony Eccles (Exhibit #5); a Book of Sentencing Materials filed by defence counsel (Exhibit #6); and 11 Victim Impact Statements (Exhibits #10 to #20).

Background Facts

6The Agreed Statement of Facts indicates the following: In 2003, the Accused, R.K., began living in a common law relationship with J.D. J.D. has four daughters: C.H. born … 1984; step-daughter, A.T. born … 1984; step-daughter, K.T. born … 1985 and S.T. born … 1993.

7In July, 2012, one of J.D.’s daughters disclosed some concerning behaviours of Mr. R.K. which had been ongoing for some time, in particular with respect to the youngest child, S.T.

8S.T. herself disclosed that at times, when her mother was not home, Mr. R.K. walked around the house naked or dressed only in his bathrobe which he left open. He frequently asked her to put lotion or cream on his body and offered to do the same for her, while he was undressed. On a couple of occasions, he agreed to drive S.T. somewhere if she showed him her breasts and on one occasion, he asked her whether or not she shaved her pubic area. On another occasion, he encouraged S.T. to watch adult pornography with him while he was partially exposed. On a family camping trip, Mr. R.K. asked S.T. to “moon” him and took a photo of her buttocks.

9S.T. reported she did not tell her mother because at first, she was too young to know Mr. R.K.’s actions were wrong and later, because she did not want to disrupt what she thought was a happy relationship between her mother and Mr. R.K.. She did become fearful and covered up the web cam in her room as she felt she was constantly being watched by Mr. R.K.. Eventually, when she was 16, S.T. chose to leave her mother’s home to live with her father, G.T., partly as a way to get away from Mr. R.K..

10On July 17, 2012 the same day her daughters came to her, J.D. made a report to the police. In addition, she left the family home, indicating to Mr. R.K. she was leaving due to his inappropriate behaviour. Shortly thereafter, Mr. R.K. reinstalled Windows on his computer which had the effect of destroying potential evidence of his internet surfing habits. It was later discovered he also had computer programs used to securely delete files which are not used in the normal course, but are frequently seen in child pornography cases.

11As a result of S.T.’s statement and those obtained from J.D. and her other daughters, the police swore an Information to Obtain a Search Warrant for Mr. R.K.’s residence which was executed on August 9, 2012. A computer, external hard drive, memory cards, and USB storage devices were seized.

12The external hard drive contained numerous images and videos taken by a camera hidden in the bathroom of the family home over a number of years. Females of varying ages were captured in stages of undress and performing personal hygiene, often while naked. The majority of images and videos were of S.T., who appeared to be the focus. In addition, Mr. R.K. altered a number of images with photo editing software to include himself naked and aroused in sexual encounters with S.T.; “morphed” himself into numerous images that appeared to be taken from the internet and into images of S.V., S.T.’s under age school friend. He also captured images of himself and his partner, J.D., engaged in apparently consensual sexual acts in the bathroom.

13None of the 18 individuals captured on the videos, including J.D. and her daughters, were aware they were being taped and none consented. Of the 18, seven were under the age of 18, including S.T. and S.V.

14On November 7, 2012, Mr. R.K. was arrested at his residence and charged with a number of offences relating to making and possessing child pornography. More computers and storage devices were seized. The camera from the bathroom was never found.

15Mr. R.K. was detained after a bail hearing and then released on December 5, 2012 after a bail review in the Superior Court of Justice. One condition of his Recognizance was not to possess computer equipment, cell phones, photography equipment, video equipment or any other device capable of connecting to the internet. He was specifically prohibited from possessing a computer. Shortly thereafter, Mr. R.K. was charged with additional offences arising from a review of items seized from his home and was released on a Recognizance with the same conditions.

16On July 5, 2013, police received information that Mr. R.K. was violating his release conditions. On July 12, 2013, pursuant to a Search Warrant, the police seized a number of items including a computer and camera in Mr. R.K.’s possession contrary to his Recognizance. Mr. R.K. was charged with 3 counts of breach of recognizance; was held in custody, and on November 13, 2013, pled guilty to 1 count of breach. He was sentenced to 90 days, comprised of pre-sentence custody to that date. No child pornography was found on the items seized. Mr. R.K. has remained in custody since July 12, 2013.

17The categorization of the digital files in this case revealed 8,747 images (1,814 unique and 1,694 accessible to Mr. R.K.) and 1,097 videos (268 unique and 666 accessible to Mr. R.K.), all of which were classified as child pornography.

18As noted, a sample disk of some of the images and videos was filed as Exhibit #1 along with a summary filed as Exhibit #2. With respect to counts 8 and 9, making and possessing child pornography with respect to S.T., the disk reveals the following: a close-up photograph of S.T.’s vagina; an image manipulated using photo editing software to make it appear that S.T. is performing fellatio on Mr. R.K.; an hour long video which includes S.T.’s vaginal and anal area as the focus; and a video slide show showing many images of S.T. under the age of 18 with a focus on her anal and genital areas. In some of the images, Mr. R.K. inserted naked images of himself to give the appearance that he was committing sexual acts with S.T. and other victims including several that depict S.T. performing fellatio on him and having his ejaculate in her mouth.

19Regarding counts 18 and 19, making and possessing child pornography with respect to S.V., the disk reveals an image of a young S.V. photo-shopped with a naked image of Mr. R.K. to make it appear as if he and S.V. are engaged in a sexual act. In addition, there is a video showing S.V. with her breasts exposed and on the toilet inserting a tampon while she is under the age of 18. There is a further image of S.V. showing her wearing only a hooded sweatshirt while in the bathroom.

20With respect to the voyeurism counts, the disk reveals numerous images taken of all the victims listed on the Indictment, including J.D., S.T. and 16 others.

The Offender

21A Pre-Sentence Report by Probation and Parole Officer Andria Richardson (Exhibit #4) and a Sexual Behaviours Assessment conducted by forensic psychologist, Dr. Anthony Eccles (Exhibit #5) were prepared for the purposes of sentencing.

The Pre-Sentence Report

22The Pre-Sentence Report notes the following:

23R.K. is 56 years old (born […], 1959) and has no previous criminal record.

24Mr. R.K. and his sisters described a chaotic upbringing. His parents were alcoholics and, although he did not experience physical or sexual abuse, or witness violence between his parents, Mr. R.K. left home at the age of 15.

25He married his first wife when he was 18 years old and had three children. After the couple separated, he married again in 2000. His second wife died in 2003.

26Mr. R.K.’s relationship with J.D. and her daughters began in 2003 and they lived together for seven years, until July, 2012, when J.D. learned from her daughters of Mr. R.K.’s inappropriate behaviour. Immediately after the relationship terminated, Mr. R.K. met D.B. through an online dating website and they began residing together. Ms. D.B. supports Mr. R.K. and highlighted positive things about him. Both Mr. R.K. and Ms. D.B. have grand-children, one of whom resides in the area.

27Mr. R.K. has spent most of his adult life as a […]. He began as a volunteer […] in 1979; became a full-time […] inspector in 1984 and ultimately obtained the position of assistant […] of the K[…] in 1998. He continued in that position until his employment was terminated in 2013.

28Mr. R.K. reports no problems with substance abuse.

29After J.D. and her daughters left the home in July, 2012, Mr. R.K. was admitted to the Kingston General Hospital in August with thoughts of suicide. The Sexual Behaviours Assessment notes that Mr. R.K. was in an agitated state fearing his career would be over and he would be labelled a “child sex offender.”

30After his discharge from hospital, he was followed by Dr. Finch and was prescribed medication for depression and anxiety which he continued to take until his arrest for breaching his Recognizance in July, 2013. He has continued to take medication while in custody. He also received psychiatric care at Providence Continuing Care Centre until his arrest.

31Ms. Richardson expressed concern as to Mr. R.K.’s recognition of the seriousness of court ordered conditions and his commitment to abide by any conditions imposed, given his breach of Recognizance. Mr. R.K. explained his possession of a camera and computer by stating that:

(1) He sold his camera to Ms. D.B. so it was hers;

(2) It was Ms. D.B.’s computer which was stored away; and

(3) Ms. D.B. was only using her tablet for online banking.

32Ms. Richardson concludes at page 7 of the Pre-Sentence Report “while the subject presented with remorse for his actions, he offered minimal explanations for his actions, and further described having more remorse for his actions at the time, as he now is not hiding his behaviour.... The subject acknowledged that his behaviour was inappropriate and that he was often naked around the home, and affirmed that he filmed the victims for approximately four years, and improved the technology to an automatic camera in 2008. He stated “I know it was wrong from the outset” yet the subject’s behaviour continued. Nonetheless, he maintains that he is sorry and has no concerns he will act similarly in the future.”

Sexual Behaviours Assessment

33Mr. R.K. acknowledged to Dr. Eccles that he began to think about S.T. in a sexual manner when she was approximately 13 and he became increasingly aware of her sexually. He installed a hidden camera in the bathroom that was pointed towards the shower and later replaced it with a motion activated camera that he could operate remotely by a wireless signal. He further acknowledged deliberate efforts to capture images of some of S.T.’s friends and taking two videos of himself engaged in sexual acts with J.D.

34Mr. R.K. maintained he never accessed child pornography on the Internet. Although some search terms related to child pornography were found on his computer (e.g. PTHC or Pre-Teen Hardcore), he indicated he did not know how they got there. Mr. R.K. also denied posting images he had captured of the girls in the bathroom, online.

35Although he denied any inappropriate touching of S.T., Mr. R.K. acknowledged he masturbated while looking at the images and videos of S.T. he had taken with the hidden camera. Dr. Eccles notes at page 10 of his report that Mr. R.K. “justified his behaviour by convincing himself that S.T. was not being harmed, as she was unaware of what he was doing. He further rationalized his conduct on the grounds that otherwise he was a good father to the children. He also maintained that he had stopped imaging anyone prior to the disclosure and had disposed of the hidden camera.”

36When one of J.D.’s daughters from her first marriage, C.H., stayed with them in the summer of 2012, Mr. R.K. acknowledged he became casual about nudity in her presence, went swimming naked and walked around the house naked at times. Dr. Eccles notes that Mr. R.K. “explained his behaviour as a response to feeling morose and somewhat marginalized in his relationship.”

37In describing how he will prevent a re-offence, Mr. R.K. told Dr. Eccles he has always cared about people and having seen how S.T. and J.D. have been devastated, he believes will ensure that he governs himself appropriately in the future. Mr. R.K. also expressed a willingness to complete sex offender programming and follow-up with appropriate counselling when released.

38Mr. R.K.’s psychometric test results on four questionnaires resulted in scores largely in the normative range. On the phallometric test Mr. R.K.’s responses were too low to be interpreted which is not uncommon. However the results were regarded as inconclusive.

39Dr. Eccles concludes at page 13:

Mr. R.K.’s history is indicative of unhealthy sexual interests including voyeurism and possibly exhibitionism. It is unclear if an interest in prepubescent girls (pedophilia) and/or pubescent girls (hebephilia) is present in this case. Mr. R.K. acknowledged a sexual interest in S.T., and having masturbated to images he had of her. While he denies a sexual interest in other girls, he did purposely seek to acquire images of eight to ten of her friends. Moreover, he imbedded sexual images of himself and to naked images of not just S.T., but one of her friends as well. At the very least, pedo/hebephilia is very much a possibility. If there were evidence that he accessed child pornography online over and above these images he obtained using a hidden camera, then this would certainly indicate that he harbours such proclivities.

40In conducting a risk assessment of Mr. R.K., Dr. Eccles notes that overall the test results place him within the low risk range for violent recidivism and for sexual recidivism, with a composite estimate that Mr. R.K.’s risk could be maintained at a level such that he would pose a low risk to re-offend.

41Dr. Eccles does note areas of concern as follows:

(1) Mr. R.K.’s use of sex as a means of coping with emotional upset;

(2) a potential for the presence of paraphillic interests, including exhibitionism, voyeurism and pedo/hebephilia;

(3) the lack of clarity as to long-term stability in Mr. R.K.’s current relationship;

(4) problems with his compliance with the conditions of his release; and

(5) an ability to rationalize what he regards as benign acts of non-compliance.

42Dr. Eccles notes the following positives in this case:

(1) an absence of unhealthy social influences in Mr. R.K.’s life;

(2) an apparent absence of emotional identification with children and no general lack of concern for others or hostility toward women;

(3) Mr. R.K. is not an impulsive individual by nature; and

(4) he does not appear to respond to life’s challenges with anger, resentment or hostility.

43Dr. Eccles concludes that Mr. R.K.’s risk to the community can be managed at the low risk level dependent upon the imposition of a number of conditions. For any community based component of his sentence, Dr. Eccles recommends:

(1) Mr. R.K. maintain contact with a psychiatrist for management of his mood;

(2) he be required to attend a sex offender program;

(3) specific prohibitions regarding Mr. R.K.’s use of the internet or internet capable devices;

(4) a prohibition from any unsupervised contact with children under the age of 16; and

(5) a prohibition from attending any venue where youth are likely to congregate.

Positions of Crown and Defence

44The Crown submits a global sentence of seven years imprisonment, less credit for pre-sentence custody, would be a fit and just sentence considering the aggravating factors, the principles of sentencing outlined in the Criminal Code and the relevant jurisprudence.

45The Defence argues a sentence of time served with credit for one and a half days for each day spent in pre-sentence custody, less the 90 day sentence imposed for the breach of recognizance (a total of two years and a three and a half months), followed by up to three years’ probation, would be an appropriate sentence.

Sentencing Principles

46Section 718 of the Criminal Code outlines the fundamental purpose of sentencing and the objectives which the sentence should attempt to achieve as follows:

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

47When an offence involves the abuse of a child, Section 718.01 states:

When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

48The court must also consider the fundamental principle of proportionality as outlined in Section 718.1 of the Criminal Code as follows:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

49These principles must be carefully weighed and balanced with the other principles outlined in Section 718.2 which states:

A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender…

The deemed aggravating circumstances relevant to this case are outlined under Section 718.2(a)(ii), (ii.1), (iii) and (iii.1):

718.2(a)(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

50Finally, Section 718.2 of the Criminal Code notes:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

Jurisprudence

51Both counsel referred to numerous cases at all levels of courts across the country dealing with the possession, making and distribution of child pornography. Many also involved other sexual offences against children. Although most of the cases are distinguishable and are decided on their own unique facts and circumstances, they are important to consider in attempting to achieve parity in sentencing.

52A careful review of the case law indicates the principles of general deterrence and denunciation must be the primary focus of sentencing in child pornography cases. See R. v. Connor, [2009] O.J. No. 6369 [Connor], R. v. Reilly, [2006] O.J. No. 1588 (C.A.); R. v. E.O., 2003 2017 (ON CA), [2003] O.J. No. 563; R. v. Stroempl (1995), 1995 2283 (ON CA), 105 C.C.C. (3d) 187 (Ont. C.A.).

53The amendments to the Criminal Code in 2005 and 2012, providing for minimum sentences of imprisonment, reinforce general deterrence and denunciation as the predominant factors in sentencing. As stated by Harris J. in R. v. Young, 2012 ONCJ 716 at paras 9-11:

9It is universally accepted that simple possession of child pornography is a serious offence. By its very definition, child pornography is created by recording the sexual abuse and sexual exploitation of children. These children are victimized for the first time when the pornography is created. They are re-victimized time and time again whenever someone views those images.

10This is occurring more frequently than in the past. The advent of digital cameras and the development of the Internet have made more child pornography available to more people, all at the push of a few buttons or keys on their computers, and this is all available in the comfort and safety of the offender's own home.

11With greater sophistication on the part of law enforcement officials, more of these offenders are being apprehended and, hence, the number of child pornography cases coming before the courts is increasing at a horrendous rate.

54In R. v. F. (D.G.) (1998) O.R. (3d) 241, a 35 year old first offender was charged with three counts of making child pornography using his four year old daughter, two counts of sexually assaulting that daughter, and other counts of possessing and distributing child pornography. Although the facts in that case differ from this case and in many ways are significantly more aggravating, particularly given the offender’s sexual assault of his four year old daughter, the Ontario Court of Appeal notes at para 21 that the courts have been on a “learning curve to understand both the extent and the effects of the creation and dissemination of child pornography over the internet and to address the problem appropriately”: see for example R. v. Sharpe, 2001 SCC 2, [2001] S.C.R. 45, [2001] S.C.J. No. 3 [Sharpe]; R. v. Kwok, 2007 2942 (ON SC), [2007] O.J. No. 457, 72 W.C.B. (2d) 533 (S.C.J.) [Kwok].

55In the 2007 case of Kwok, a 29 year old first offender was sentenced to one year incarceration and three years’ probation on one count of possession of child pornography. In considering the prevention of harm to society, Molloy J. states at para 49:

49As child pornography has become an increasingly pervasive evil in our modern society, our courts have become increasingly aware of the need to recognize the gravity of the offence and the enormous harm it causes. The impact of child pornography on the helpless children that are its subjects is obvious. In addition, it is now well recognized that pedophiles frequently use child pornography to desensitize the children they are preying upon; to “groom” them and persuade them that the reprehensible acts that are about to be perpetrated on them are “normal” or acceptable. Collectors of child pornography seek to distance themselves from the direct physical and emotional harm caused to children. However, the collectors of this filth are a vital part of the evil menace it represents and bear responsibility for its malignant growth right along with its creators. (See R. v. Sharpe (2001), 2001 SCC 2, 150 C.C.C. (3d) 321 (S.C.C.).

56She considers both specific and general deterrence at para 58 as follows:

59…for some crimes and for some offenders, the prospect of imprisonment can have a strong deterrent affect. It is my belief that possession of child pornography is one of those offences. It is too easily seen as harmless. People persuade themselves that it is not really bad, that they are not the ones hurting anybody. They do not see themselves as criminals, just as drunk driving was not seen as truly criminal conduct in decades gone by. A message must be sent to those people, before they start down the path of accessing child pornography, that police are becoming more sophisticated, that society is becoming less tolerant, that more and more people are being caught, and that if caught, they stand a very good chance of going to jail…

57In Connor, Molloy J. revisits her decision in Kwok in sentencing a 48 year old first offender after trial on two counts of making available child pornography and three counts of possession of child pornography, along with other drug and weapons offences. She imposed a three year sentence in total on the child pornography offences. Justice Molloy notes that since her decision in Kwok, Parliament has amended the child pornography provisions of the Criminal Code to provide minimum sentences which reinforces general deterrence as a significant factor in sentencing for any child pornography crime.

58In Kwok, Justice Molloy provides a helpful list of the particular relevant factors in child pornography sentencing at para 7 which she repeats at para 48 of Connor as follows:

48In R. v. Kwok 2007 2942 (ON SC), [2007] O.J. No. 457 (Ont. Sup. Ct.) I reviewed the particularly relevant factors to be considered in child pornography sentencing as follows at para. 7:

Not surprisingly, each case turns on its own particular facts. However, an analysis of the case law does reveal an emerging consensus on the relevant factors to be taken into account: see, in particular, R. v. Parise, [2002] O.J. No. 2513 (Ont. C.J.); R. v. Mallett, [2005] O.J. No. 3868 (S.C.J.). Generally speaking, any of the following are considered to be aggravating factors: (i) a criminal record for similar or related offences; (ii) whether there was also production or distribution of the pornography; (iii) the size of the pornography collection; (iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted); (v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet. Generally recognized mitigating factors include: (i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community).

59In R. v. VL, 2011 ONSC 218, Ratushny J. sentenced a 56 year old first offender on a guilty plea to possession and distribution of child pornography to five years’ incarceration before the deduction of pre-sentence custody credits. She noted at para 85:

I recognize this sentence is higher than has been imposed in other cases. It is meant to reflect, as stated before, the gravity of the offence, the accused’s high degree of moral blameworthiness and the need to protect the public and to denounce and deter.

These factors and principles apply in the case at Bar.

Aggravating Factors

60There are a number of significant aggravating factors in this case as follows.

1. Breach of Trust

61Mr. R.K. abused his position of trust as a parent to S.T. for over eight years. He began when S.T. was only 10 years surreptitiously filming and photographing her with a hidden camera in the bathroom of her home. He further abused her by using some of the images for his own sexual gratification - inserting images of himself having sexual relations with his young step-daughter.

62In addition to the breach of trust regarding S.T., Mr. R.K. abused the trust of S.T.’s friends and their parents who allowed the children to visit S.T. in her family home. Unbeknownst to the children, they were being filmed and photographed in the bathroom, often while naked.

63Mr. R.K.’s abuse of his common-law partner, J.D., by filming sexual acts with her in the bathroom without her knowledge or consent and the extreme breach of the trust she placed in him as her life partner and stepfather to her children, is significant. As J.D. indicated in her Victim Impact Statement, she had every reason to believe she was in a relationship where she had a future. She was committed to Mr. R.K. and to making the relationship work. After the police investigation, she realized not only had Mr. R.K. victimized her children but had also victimized her and every visitor who had come to the home. She stated:

I was horrified to find out that no one had been safe in my home. There were videos and photos of everyone I loved and visitors too. I have always thought of my home as a sanctuary. I could not have been more wrong. I assisted the police in identifying victims – with each one I identified, I lost more of myself.

64In addition to abusing a position of trust with respect to S.T., her friends, J.D. and visitors to the home, Mr. R.K. abused the position of trust and authority he had in the community as assistant […]. In that role his responsibility was to keep people safe. The victims trusted him as did the community. J.D. stated:

The man I believed I knew was not anything that he presented – he did not love me, he was not someone that I could spend the rest of my life with, he was not a fine, upstanding leader of the community, he was not the moral person he purported, he was not looking out for the best for my children.

65The voyeurism in which Mr. R.K. engaged over many years, although not the most serious of the offences with which he was charged, was nonetheless a significant violation of privacy and the bodily integrity of the victims. This was not a single incident of a “peeping Tom” but involved years of planned, premeditated, surreptitious observation.

2. Length of Time

66The offences took place over many years while J.D. and her family resided with Mr. R.K.. The offences to which Mr. R.K. entered guilty pleas began in February, 2004, with the last count of possession of child pornography ending in August, 2012. In addition to the length of time, the filming and photographing was continuous. The first camera Mr. R.K. put in the bathroom was replaced with an updated digital camera. Mr. R.K.’s pattern of behaviour was well entrenched. In addition he spent a significant amount of time reviewing, categorizing, and photo-shopping thousands of child pornographic images and videos.

3. Number of Images

67As noted in the Agreed Statement of Facts (Exhibit #3), the categorization of the digital files in this case revealed 8,747 images and 1,097 videos, all of which were classified as child pornography.

4. Planning and Sophistication

68The technology Mr. R.K. used was sophisticated. As noted, the hiding of the camera and reviewing and categorizing of the images was planned and premeditated. In addition, the day J.D. indicated to Mr. R.K. she was leaving, he reinstalled Windows on his computer which had the effect of destroying potential evidence of his internet surfing habits. He also had programs on his computer used to securely delete files.

5. Multiple Victims

69There were multiple victims involved in the voyeurism offences: S.T., her friend S.V., J.D., her other daughters C.H., K.T. and A.T. as well as numerous other friends and family members – a total of 18 victims in all who were dramatically affected by the actions of Mr. R.K..

6. Victim Impact Statements

70The eloquent, compelling Victim Impact Statements demonstrate the devastating effect of Mr. R.K.’s crimes on his victims.

71A.T., sister of S.T., C.H. and K.T. and daughter of J.D. and G.T. states as follows in her Victim Impact Statement:

R.K. is not a normal man who simply struggled with his moral compass. He is a very intelligent, manipulative person who made a choice, every day, to hurt my sisters and videotape myself and my family.

In terms of the long-term impact on A.T. and her family she states:

I have done my best to accurately tell you some of the ways his actions have affected us up to this date, but I’ll not be able to tell you all the ways in which the ripple effects of what we have gone through will continue to permeate into our lives. I can’t tell you how it will affect the way I see the world around my children, or my nieces and nephews, and how my emotions will influence their view of the world. I can tell you that R.K. changed the trajectory of each and every one of our lives, some of us more than others. But the truth is that as a family, we are forever altered.

72The Victim Impact Statements highlight recurring themes of: loss of trust, extreme guilt and shame, fear, physical ailments, sleep deprivation, anger, loss of intimacy, significant impact on education, employment and finances and a perception that the impact of these crimes will continue for a long time into the future.

73S.T. articulately described her feeling of having been robbed of her innocence and the impact of the crimes on her relationships with her family and friends. S.T. has suffered physically, psychologically, emotionally and academically. She states she is haunted by guilt and shame and notes as follows:

The abuse began when I was just 10 years old, and the occurrences of these crimes became second nature to me; until I spoke to anyone about them, they were merely uncomfortable feelings of normalcy. I had an extremely difficult time deciding if what I experienced could be classified as “abuse” or if this was simply the way some families were. It damaged me emotionally and created false perceptions of what constitutes appropriate behaviour for me. Critical moments in my life have not been experienced fully because instead of facing them with excitement, happiness, and confidence, I was filled with fear, anxiety, and insecurity.

7. Breach of Recognizance

74After being released on specific conditions “not to possess computer equipment, cell phones, photography, video equipment or any other device capable of connecting to the internet”, Mr. R.K. was found in possession of a computer and cameras in direct contravention of the conditions. In discussing this breach with Dr. Eccles he acknowledged that when Ms. D.B. moved in with him, she brought her laptop and continued to access the internet. Mr. R.K. maintained his internet account and knowingly took photographs and videos in contravention of his recognizance. He justified this behaviour to Dr. Eccles by indicating he was taking pictures of a new puppy and there was no nefarious intent on his part.

75Ms. Richardson noted in the Pre-Sentence Report Mr. R.K. “rationalized his behaviour by stating that he sold his camera equipment to Ms. D.B. that her computer was stored away, and justified that she was solely using her tablet to access online banking, adding that no one else was aware”. This is somewhat different than the explanation he presented to Dr. Eccles. These statements are self-serving rationalizations for breaching court ordered conditions.

8. Remorse

76Although not a specific aggravating factor, Mr. R.K.’s justifications and rationalizations to both Dr. Eccles and the probation and parole officer are of concern as is his apparent lack of genuine remorse. Although he wrote apologies to J.D. and her daughters K.T. and C.H. immediately after J.D. left the home, his motivation in doing so remains unclear.

77In discussing the charges and his feelings about the offences, the probation and parole officer notes Mr. R.K. was “carefully considered in his responses” and although he reported he takes responsibility for the specific charges, he indicated “I never touched any of the victims, and was never involved in any sexual exploitation”. He was unable to offer any explanation for his behaviour and stated: “I wish I knew”.

78With respect to feelings of remorse, Mr. R.K. made a strange statement to the probation and parole officer that he “felt more remorse while I was doing it, I couldn’t help but feel conflicted”. He did indicate he was remorseful from the onset of his behaviour and added that the victims must feel a tremendous hurt. Nevertheless, Mr. R.K. chose to continue his behaviour for years. He started with voyeurism, then began filming S.T. and others in the bathroom. He did not stop at that and wanted more. He upgraded his camera, making it a permanent hidden fixture in the bathroom, to film and photograph unknowing victims for many years.

Mitigating Factors

79The mitigating factors in this case are as follows:

1. Mr. R.K. is a first-time offender. He has no criminal record.

2. Mr. R.K. entered guilty pleas after exercising his rights to challenge the indictment under s. 11(b) of the Charter.

3. Mr. R.K. was able to obtain a high-ranking position with the K[…]. The [X] commended him in February, 2008 for the outstanding service he provided to the community in the performance of his duties with K[…].

4. His sister noted “R.K. is very much a self-made man with very high ideals and standards. He expected the same of anyone he worked with or managed.” She noted Mr. R.K. never had any problems with drugs or drinking and the strength he has shown in the past will likely carry him through the difficulties he is now facing.

5. The Sexual Behaviours Assessment completed by Dr. Anthony Eccles indicates Mr. R.K. overall presents a low risk to reoffend. Dr. Eccles noted a number of positives in this case, among them Mr. R.K. does not appear to identify emotionally with children and does not demonstrate a general lack of concern for others or hostility towards women. Dr. Eccles noted Mr. R.K. does not appear to respond to life’s challenges with anger, resentment, or hostility.

6. Mr. R.K. is willing and prepared to undergo sexual behaviours treatment. He made that clear to both Dr. Eccles and to the probation and parole officer. Dr. Eccles strongly recommended Mr. R.K. be required to attend a sexual offender program, as he has been adept at rationalizing his offences. As a first offender, rehabilitation must be carefully considered and sexual offender treatment, as recommended by Dr. Eccles, will be important in Mr. R.K.’s rehabilitation and ultimately for the protection of the public.

7. There has been a significant impact on Mr. R.K. and on his common-law partner, D.B., as a result of the offences. Mr. R.K. lost his job as […] with K[…]and Rescue. His future employment is uncertain at best. He has lost most of his friends and his relationship with his three adult children has been affected. There has been extremely negative publicity in the community. Neighbours have left vitriolic messages at his home and in his mailbox. His neighbours, friends and the community have all turned against him. Since his detention Mr. R.K. has been held in the Quinte Detention Centre in protective custody. There are three prisoners in his cell which measures approximately 8 feet 4 inches x 10 feet 3 inches. He is on 23 1/2 hour lockdown and has 20 minutes per day outside in the yard and a 10 minute shower. The conditions of his detention have been harsh.

Conclusion

80I have carefully considered the case law submitted by counsel which provides me with guidance on the applicable sentencing principles and I have attempted to balance the aggravating and mitigating factors in the context of the principles of sentencing outlined in the jurisprudence and under the Criminal Code in order to achieve a fair and just sentence.

81Mr. R.K. was the stepfather to S.T. and her sisters K.T., C.H. and A.T. As a parent to S.T., he was in a position of trust and was responsible for providing a safe and caring environment for his stepchildren.

82On the surface Mr. R.K. was a pillar of the community. He was the assistant […] and purported to be a loving father and companion to J.D. Behind the scenes, Mr. R.K. engaged in a systematic, planned process of watching, photographing and filming S.T., her friend S.V., and 16 others over many years. He photo-shopped himself into images of S.T. and S.V., making pornographic images of them involved in sexual acts with him. He filmed consensual sexual activity between himself and J.D. without her consent or knowledge. He hid a camera which he upgraded over the years in the bathroom. He categorized and organized 8,747 images and 1,097 videos, all of which were classified as child pornography. Although there was no physical or sexual violence, intimidation or extortion used by Mr. R.K., there was an egregious breach of trust of the children, family members, friends and members of the community who placed faith and trust in him. Mr. R.K. rationalized and justified some of his behaviours and has shown little genuine insight as to the harm he has caused. It is difficult to predict the long-term consequences of Mr. R.K.’s surreptitious filming of the victims and his possession and creation of child pornography. Some insight into the present and possible long-term effects on Mr. R.K.’s victims is provided in the Victim Impact Statements. They have been devastated.

83The impact of these offences on Mr. R.K. and Ms. D.B. has already been significant and to a large extent addresses the principle of specifc deterrence. As a first offender, Mr. R.K.’s rehabilitation is of importance. It will be crucial that he attend a sex offender treatment program while incarcerated and potentially continue treatment once released. The primary principles in sentencing for offences such as these are denunciation and general deterrence.

84Therefore, I sentence Mr. R.K. as follows.

85The global sentence on all charges will be five years three months’ imprisonment broken down as follows:

1. On the counts of making child pornography with respect to S.T. and S.V. contrary to Section 163.1(2) of the Criminal Code, a sentence of two years’ imprisonment on the count with respect to S.T. and 18 months’ imprisonment on the count with respect to S.V. concurrent;

2. On the counts of possession of child pornography with respect to S.T. and S.V. contrary to Section 163.1(4) of the Criminal Code, 18 months’ imprisonment on the count relating to S.T. and 12 months’ imprisonment on the count relating to S.V. concurrent, but both consecutive to the sentence for the making child pornography counts;

3. On the counts of voyeurism with respect to S.T. contrary to Section 163(1)(b) of the Criminal Code, 12 months’ imprisonment and on the count of voyeurism with respect to the K.T. and 15 others, 12 months’ imprisonment concurrent but consecutive to the other counts. On the count of voyeurism with respect to J.D., nine months’ imprisonment consecutive.

86The total period of imprisonment is 63 months or five years and three months.

87Mr. R.K. is to be given credit for pre-sentence custody of 563 days or one year seven months, leaving three years, eight months’ custody. I am giving him credit for 1.5 days for every day served from his arrest on November 7, 2012 to his release on December 5, 2012. From his re-arrest on July 12, 2013 to the date of sentencing I am giving Mr. R.K. credit of a day for a day, given that his re-arrest was for a breach of his release conditions. Section 719(3.1) of the Criminal Code applies indicating that the maximum time in custody the court may take into account is 1.5 days for each day spent in custody unless…the person was detained in custody under sub-section 524(4) or (8) – when a breach has been found and the accused is ordered detained in custody unless showing cause, in which case the credit is limited to a day for a day.

88It is strongly recommended that Mr. R.K. attend a sexual offender treatment program while incarcerated.

89I make the following ancillary orders:

1. The sealing orders previously made remain in effect.

2. There will be a prohibition order as outlined under Section 161(1)(a) and (b) and an order prohibiting any contact as outlined under Section 161(1)(c), unless under the supervision of a person approved of by the parole officer, that person having been fully informed as to Mr. R.K.’s offences.

3. There will be a further prohibition under Section 161(1)(d) regarding Mr. R.K.’s use of the internet as outlined in the recommendations of Dr. Eccles Sexual Behaviours Assessment (Exhibit #5) at page 18. All orders under Section 161(1) are to be for a period of five years.

4. I order forfeiture of all items seized from Mr. R.K. for disposal as directed by the Attorney General or agent, pursuant to Section 164.2(1).

5. There will be a DNA order pursuant to Section 487.051.

6. There will be an order under Section 490.012(1) of the Criminal Code requiring Mr. R.K. to comply with the Sexual Offender Information Act for life, as required pursuant to Section 490.013(2.1).

7. Finally, there will be an order under Section 743.21(1) of the Criminal Code prohibiting Mr. R.K. from communicating directly or indirectly with any of the victims during his imprisonment on these offences.

Madam Justice Jennifer Blishen

Released: April 13, 2015

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION

CITATION: R. v. R.K., 2015 ONSC 2391

COURT FILE NO.: OCJ #536/12 – SCJ #50/14