R. v. L.K., 2015 ONSC 2887

CITATION: R. v. L.K., 2015 ONSC 2887

COURT FILE NO.: CR/14/10000/1970000

DATE: 20150429

WARNING

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code, R.S.C., 1985, c. C-46.

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

• and -

L.K.

Karen Simone, for Her Majesty the Queen

Keely Duncan, for L.K.

HEARD: April 27, 2015

THORBURN J.

REASONS FOR SENTENCE

1. The Offences

1L.K. was convicted of eight offences involving three Complainants as follows:

(a) sexual assault, sexual touching and invitation to sexually touch P.T. between March 9, 1998 and March 9, 2000;

(b) sexual assault, sexual touching and invitation to sexually touch A.T. between September 1, 2003 and June 30, 2005; and

(c) sexual assault and sexual touching of P.S. between December 1 and December 24, 2010.

The First Complainant

2P.T. says that when he was about 7 years-old, L.K. pulled his trousers down to his thighs and touched his penis, moving it back and forth with his right hand. L.K. used his index, middle finger and thumb. When L.K. was finished, he asked P.T. if he was ok. P.T. said ‘yes’ and then left.

3On the second occasion, L.K. got into his bed and asked P.T. to join him. P.T. followed suit. L.K. took his shirt off. P.T. says his own shirt was also removed although he does not remember how. L.K. touched his penis. L.K. pulled his own trousers down and asked P.T. to touch him. P.T.’s bare hand touched L.K.’s bare penis. L.K. directed P.T.’s hand in a certain way.

4On a third occasion, there was an incident similar to the second.

The Second Complainant

5When A.T. was seven or eight years old, he was penetrated by L.K. within a few months of attending tutoring.

6L.K. made A.T. sit on his lap and took A.T. to his bedroom. He took off his trousers and when everything was off, L.K. performed oral sex on him. L.K. also had him stroke L.K.’s penis. A.T. estimates that this happened about 50 times.

7Sometimes L.K. tried to insert his penis into A.T.’s anus. L.K. used a lotion and there was some penetration of A.T.’s anus. A few times L.K. tried to insert his penis into A.T.’s mouth while he was lying on the bed.

The Third Complainant

8The third Complainant P.S. testified that one day near Christmas, L.K. held his hand and pulled him onto his lap. L.K. was holding him tight and started touching him in different spots. He touched P.S.’ behind and his penis under his clothing. He kissed him on his lips and cheeks and hugged him. He told P.S. to stop moving and not to tell anyone. L.K. held P.S. by his wrist and said, “Don’t go.” The telephone rang and L.K. went to answer the telephone and he left. As he left, a student was coming in.

The Circumstances of the Offences

9Each of the Complainants was between the ages of six and nine years old when the offences occurred.

10During the period all of the incidents are said to have taken place, L.K. operated a tutoring business from his apartment. All of the Complainants were his students.

11The students were treated to parties, excursions and other festivities so that they would enjoy coming to tutoring at L.K.’s home.

2. The Offender

12L.K. is a fifty year-old man who came from Sri Lanka as a refugee in October of 1998. His parents are deceased and his siblings reside in Sri Lanka.

13He has some difficulty with English and testified at trial through an interpreter. In the Pre-Sentence Report he indicated that he wished to speak to the parole officer in English.

14In the Pre-Sentence Report, he indicated that he was married in Sri Lanka but his wife and children did not come to Canada with him. His wife had a stroke and is now paralyzed. His daughter died on May 17, 2014 from a heart condition and his son remains in Sri Lanka.

15L.K. told the parole officer he is concerned that he has not been able to financially assist his family since he has been incarcerated. Moreover, he used to spend two months each summer in Sri Lanka with them and since his incarceration, has not been able to do so.

16He has no family here but has a friend who has known him for 10 years. He was living with this friend and his family prior to his incarceration. The friend knows about the charges. He described L.K. as honest, quiet and humble.

17L.K. began tutoring school aged students in December 1998. He has also worked part time at a seniors’ home for two years, at Tim Horton’s part-time, at Ryerson University food services dishwashing and at the Eaton Centre food court. He has always been gainfully employed at, at least one job.

18L.K. denies responsibility for the offences so it is impossible to determine his level of remorse.

3. The Victims

19Two of the victims filed Victim Impact Statements.

20One indicated that, “there are many instances when memories of this offence spring up in my brain that I cannot get rid of, and that hurts more than anything.” Another said the incidents, “made me lose trust in all teachers, I also feel disgusted of myself.”

21It is clear that, while they may not yet be able to fully articulate what they are going through, these young boys have suffered serious psychological harm.

4. The Positions of the Crown and Defence

The Crown Position

22The Crown seeks a total sentence of ten to twelve years’ incarceration for the three offences of sexual assault. The Crown submits that a sentence of this length is important to reflect the important principles of denunciation and deterrence. This case involves a series of assaults on young vulnerable children over an extended period in L.K.’s home while the Complainants were entrusted to his care. The victims were between the ages of six to nine years of age. The Crown suggests that the assaults on A.T. in particular were both numerous and vicious.

The Defence Position

23The Defence suggests that a sentence of four to five years for the three offences of sexual assault is appropriate in these circumstances.

24It is agreed that the sentences for sexual interference and invitation to sexual touching should be stayed pursuant to the Kienapple principle. The principle in R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729 provides that where the physical acts related to one count are identical to those that pertain to a second charge, the rule against multiple convictions is engaged and a stay of proceedings is entered.

25Counsel agree that L.K. should be given credit for time spent in pre-sentence custody at the rate of 1.5:1 to take into account the dire conditions he has been under since his incarceration that include triple bunking and a serious physical assault that has left him with broken bones and damage to his eye.

5. The Principles of Sentencing

26Sentences must meet one or more of the objectives set out in s. 718 of the Criminal Code that include:

(1) denouncing unlawful conduct;

(2) deterring the offender and others from committing offences;

(3) separating offenders from society where necessary;

(4) assisting in the rehabilitation of offenders;

(5) providing reparation for harm done to victims or to the community; and

(6) promoting a sense of responsibility in offenders, and acknowledging the harm done to victims and to the community.

27When determining the appropriate sentence, the paramount question is, “What should this offender receive for this offence, committed in these circumstances?”

28Section 718.01 of the Criminal Code provides that, “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.”

29In R. v. D.D. 2002 44915 (ON CA), [2002] O.J. 1061 (O.C.A.), Moldaver J.A. for the court reiterated that,

Absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718(a), (b) and (c) of the Criminal Code, [dealing with minors] 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.

6. Sentences Imposed in Comparable Circumstances

30A wide range of sentences have been imposed in cases involving sexual assault on a minor.

31In the case of R. v. D.D. 2002 44915 (ON CA), [2002] O.J. 1061 (O.C.A.), an offender was convicted of eleven sexual offences against four boys who were under eight years of age. The offender was in a position of trust. The wrongful acts included masturbation, group sex, oral sex, attempted and actual anal intercourse. The offender assaulted the boys and threatened them in an effort to maintain their silence. One boy was hung over a balcony. The offender also threatened to make public compromising photographs if the boys exposed his offences.

32In that case, Moldaver J.A. for the court, held that,

I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate.

33A global sentence of nine years and one month on each count concurrent was upheld by the Court of Appeal.

34In R. v. P.M., [2012] ONCA 162 at para. 46, Rosenberg J.A. for the majority held that,

… where a father has committed repeated acts of incest with his daughter over many months, as in this case, it will be highly unusual for the court to impose a penitentiary sentence of less than five to six years.

35In R. v. B. (J.), [1990] O.J. 36 (O.C.A.), the offender was convicted of repeated acts of sexual assault and indecent assault on his stepdaughter. He began having sexual intercourse with his stepdaughter when she was six years old and continued to have frequent intercourse with her until she was fourteen. The trial judge’s global sentence of eight years was upheld by the Court of Appeal.

36In R. v. M. (W.W.), (2006), 2006 3262 (ON CA), 205 C.C.C. (3d) 410 (Ont. C.A.) the offender sexually abused two half-sisters. The offender was between sixteen and twenty one at the time of the offences. The abuse consisted of repeated acts of vaginal intercourse. The victims were ages 8 and 9 when the abuse began. It continued for two years with one victim and four years with the other. The offender was convicted of two counts of incest. He was sentenced to four years in prison. The sentence was upheld on appeal.

37In R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 (O.C.A.), the offender was found guilty of luring a child he knew was only twelve years old for the purpose of committing sexual interference. He engaged in sexually explicit discussion. When he met her he put her hand on his penis, had her perform fellatio on him, told her to bend over and had sexual intercourse with her. He lured her to the meeting by promising her millions of dollars if she engaged in sex acts with him. In these circumstances, the Court of Appeal held that a six and one half year sentence was not excessive.

38In R. v. D.M. [2012], 111 O.R. (3d) 564 (O.C.A.), the offender was sentenced to seven years in custody for a near-daily chain of progressively more invasive sexual assaults culminating in sexual intercourse several times per week within the three year period. The Complainant was a fifteen year old girl from Fiji who was entrusted to the offender by her family and who was subjected to threats of deportation if she disclosed what the offender was doing. The offender was 57 years old.

39In R. v. V.A. [2013] O.J. No. 458, (Ont. S.C.J.) a 43 year old offender was sentenced to five years’ imprisonment for six counts of sexual assault on two young girls beginning when they were aged six and eight years old and continued for six to seven years. The abuse included unprotected sexual intercourse. The offender gave each complainant treats after each incidence of abuse.

40In R. v. B.S. [2014] O.J. No. 6130, (Ont. S.C.J.) a 27 year old offender with a lengthy criminal record who was convicted of unprotected sexual intercourse with the victim hundreds of times and assaulting her many times, beginning when she was twelve years old, was sentenced to eight years’ imprisonment.

41Finally, in R. v. J.S., [2008] O.J. No. 4379, (Ont. S.C.J.), an offender was sentenced to five years in prison for three counts of sexual intercourse with his step-daughter who was between six and eight years old.

42One of the aggravating factors is whether the offender was in a position of trust. The expression “position of trust” is not defined in the Criminal Code.

43In R. v. Audet (1996), 1996 198 (SCC), 106 C.C.C. (3d) 481 at para. 38 (S.C.C.), Lamer J. for the majority of the Supreme Court of Canada held that,

It will be up to the trial judge to determine, on the basis of all the factual circumstances relevant to the characterization of the relationship between a young person and an accused, whether the offender was in a position of trust or authority towards the young person or whether the young person was in a relationship of dependency with the offender at the time of the alleged offence. … The age difference between the offender and the young person, the evolution of their relationship, and above all the status of the offender in relation to the young person will of course be relevant in many cases.

44In R. v. P.S., [1993] O.J. No. 704 (Gen. Div.), Blair J. held that:

Where the nature of the relationship between an adult and a young person is such that it creates an opportunity for all the persuasive and influencing factors which adults hold over children or young persons to come to play, and the child or young person is particularly vulnerable to the sway of these factors, the adult is in position where those concepts of reliability and truth and strength are put to the test. Taken together, all of these factors combine to create a "position of trust" towards the young person.

7. Application of the Law to the Facts in this Case

45The above cases are useful to understand the principles behind the imposition of sentences involving sexual assault on a minor. Sentences must however, be appropriate to the distinguishing features of each case.

46In this case, there is a significant age difference between the Complainants and L.K. The Complainant’s own parents left them in his care in his home. The Complainants were only six to nine years old. L.K. was an authority figure. There was a trust relationship between the Complainant and L.K. I accept L.K. engaged in social activities for all students in his care that had the effect of grooming the Complainants.

47L.K. does not acknowledge having committed these offences and it is therefore difficult to predict his prospects for rehabilitation or his willingness to obtain treatment.

48Two of the three offences involving P.T. and P.S. involved touching but not penetration. One was committed three times and the other once. The offence involving A.T. was more serious and involved penetration, and was committed many times over a prolonged period. None of the offences was accompanied by other acts of violence.

49The aggravating factors in this case are:

a) the Complainants were between the ages of six and nine years old at the time the incidents took place;

b) L.K. was in a position of trust;

c) the abuse occurred in L.K.’s home, a place that should have been a place of safety and security; and

d) the Complainants continue to suffer psychological harm notwithstanding their admirable efforts to be positive about their lives.

50The mitigating factors are:

a) L.K. has no criminal record;

b) he has been employed throughout;

c) he provided financial support to his disabled wife and his family in Sri Lanka until his arrest; and

d) L.K. received a positive reference from the friend with whom he lived for ten years to the time of his arrest.

8. Conclusion

51In sentencing those guilty of sexual assault, the court must look at the seriousness of the offending act, the number of offences committed, the duration of the offence, and the circumstances surrounding the commission of the offence. (R. v. Stuckless (1998), 1998 7143 (ON CA), O.J. No. 3177 at para. 55 (O.C.A.).) Denunciation and deterrence are extremely important given that this case involves serious sexual assaults on minors.

52I have considered the principles of sentencing, the aggravating and mitigating circumstances, the fact that there was a trust relationship between L.K. and the Complainants, and that the Complainants have experienced serious difficulties coping as a result of these incidents. I have also considered L.K.’s prospects for rehabilitation which are unknown given that he does not acknowledge the need for treatment. I have considered the case law regarding the appropriate range of sentences for these offences and am cognizant that the punishment must reflect the particular circumstances of this case and this offender.

53With this in mind, I believe the appropriate global sentence is seven years: two and one half years’ incarceration for the assault on the first Complainant, five years’ incarceration for the offence on the second Complainant, and two years’ incarceration for the offence on the third Complainant.

54When taking into account the sentences imposed on other similar offenders, some of which involve lengthy periods of vicious assaults on young persons that include penetration, and considering the totality principle, I believe a global sentence of seven years should be imposed.

55From this global seven year sentence shall be deducted credit at the rate of 1.5:1 credit for the 886 days spent in pre-sentence custody.

56In addition, L.K. shall comply with the following conditions:

a) L.K. is prohibited from carrying weapons for life pursuant to section 109 of the Criminal Code;

b) L.K. must provide a sample of his DNA pursuant to s. 487.05(1) of the Criminal Code as sexual assault is a primary designated offence;

c) L.K. must comply with the Sex Offender Information Registration Act, 2007, c. 5, s. 12, pursuant to section 490.013(2.1) for life (as L.K. is guilty of more than one enumerated offence listed); and

d) upon being discharged and for two years thereafter, L.K. shall not be permitted to attend a public park, swimming centre, daycare centre, or school ground unless accompanied by another adult nor shall he seek to obtain employment from such an establishment, pursuant to section 161 of the Criminal Code.

Thorburn J.