CITATION: R. v. K.G., 2015 ONSC 6094
COURT FILE NO.: CR-12-2008-00
DATE: 2015-10-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Gregory Hendry, for the Crown
- and -
K.G.
Jason Rabinovich, for the Defence
Defendant
HEARD: September 17, 2015
REASONS FOR SENTENCING
M. J. Donohue, J.
Overview
[1] Mr. K.G. stands to be sentenced after conviction on one count of invitation to sexual touching of a person under the age of 16 contrary to s. 152 C.C.C., Count 1, and one count of attempt to obtain sexual services of a person under the age of 18, contrary to s. 212(4) C.C.C, Count 2.
[2] A sentencing hearing took place on September 17, 2015. These are the reasons for the sentence imposed in the circumstances of this case.
The Facts
Circumstances of the Offence
[3] Mr. K.G. telephoned the daughter, M.M., of his friend and co-worker a number of times. In the conversations he offered to pay money for the purchase of dirty panties from her or her friends as well as “extras” which involved sexual acts.
[4] Mr. K.G. was aware that M.M. was 14 years of age and that her friend was 15 years of age.
[5] Three of the telephone calls were recorded, detailing exactly what was said. Mr. K.G. testified that the conversations were not real and were only intended to be role-playing to warn her of the dangers of chat lines.
[6] I found that the discussions were real and Mr. K.G. intended the actions he proposed in these conversations with M.M.
Circumstances of the Offender
[7] Mr. K.G. is 53 years of age. He is currently married with one 13 year old daughter. She has special needs that are severe. He also has two adult sons from his first marriage.
[8] Growing up Mr. K.G. suffered physical abuse from step-fathers and sexual abuse from his older brother. He does not know who his real father is.
[9] He left school at the age of 13. He largely did labouring jobs and then began his own home renovation business. He continues to do this work and finds being self-employed gives him flexibility for his daughter’s schedule.
[10] Mr. K.G. smokes cigarettes and does not use illicit drugs. He has a drink after work and occasionally has up to seven drinks at a party. He has no substance abuse issues.
[11] In connection with the offence he stated he was buying dirty underwear from women and assisting a lady who ran a dating service to sell them to male clients. Mr. K.G. maintains that he was trying to help this victim and explain about chat lines. He does not acknowledge what he did or show any remorse.
[12] He advises that this will never happen again and he has no intention of doing anything.
[13] He has met women through chat lines and had sex with them and continues to do so.
[14] His sister in Texas and his business contact for renovations speak of him as a very loving father and they never had concerns about his behaviour.
[15] Mr. K.G. was convicted of assault and served a year’s probation without any enforcement issues in 1997 to 1998.
Right of Allocution
[16] Mr. K.G. addressed the court stating that he wishes he could undo what happened five years ago. He said he was not a sexual offender but was “hooked on the chat line”.
Impact on the Community
[17] The impact of the offence of sexual offences against children was set out in R. v. M. (D.), 2012 ONCA 520, as the following:
Our children are our most valued and are our most vulnerable assets.
We as a society owe it to our children to protect them from the harm caused by sexual predators.
Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators.
Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow.
Three such consequences are now well recognized:
a) Children often suffer immediate physical and psychological harm.
b) Children who have been sexually abused may never be able as an adult to form a loving, caring relationship with another adult.
c) Children who have been sexually abused are prone to become abusers themselves when they reach adulthood.
- Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing, 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.
[18] With such major and concerning impacts on children, the impact on the community of these offences is significant.
[19] In so concluding, 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.
Impact on the Victim
[20] M.M. did not wish to provide a victim impact statement. There was no evidence in this regard for my consideration in sentencing.
Legal Parameters
[21] Count 1 is an indictable offence pursuant to s. 152 of the Criminal Code; invitation to sexual touching of a person under the age of 16. A person convicted of this offence is liable to imprisonment for a minimum term of 45 days and a maximum term of ten years.
[22] Count 2 is an indictable offence pursuant to s. 212(4) of the Criminal Code; attempt to obtain sexual services of a person under the age of 18. A person convicted of this offence is liable to imprisonment for a minimum term of six months and a maximum term of five years.
Positions of Crown and Defence
[23] The Crown seeks a custodial two to three years as well as a DNA order, a SOIRA order for 20 years and a s. 161 parks and playground order (a) (b) and (c) for five years. The Crown agrees to an exception being made for contact between Mr. K.G. and his daughter.
[24] In the alternative, if the Court ordered less than two years in custody, the Crown urges a probationary term of two to three years with counselling and a no contact, non-attendance order regarding anywhere M.M. is known to be.
[25] The Crown described this as essentially a luring case, which was done by telephone, rather than the internet. The Crown submitted that Mr. K.G. was in a position of trust as M.M. referred to him as uncle.
[26] The Defence position is a custodial sentence of six to nine months would be appropriate in the circumstances of this case plus a period of probation of two to three years.
[27] The Defence submits there was no trust relationship but, if there was, it was at the low or light end of a trust relationship. M.M. did not often see or interact with Mr. K.G. and was never in a situation where they were alone.
Case Law
[28] The Crown relies on the following four submissions:
Principles of Sentencing
[29] In R. v. Woodward, [2011] O.J. No. 4216, 2011 ONCA 610., the accused was convicted of sexual interference, inviting sexual touching, touching for a sexual purpose, attempting to obtain sexual services for consideration and sexual assault. He was convicted for luring a 12-year old girl via text message and sexually assaulting her. The complainant met the accused on an online dating site and led her to believe that he would pay her $200 million dollars to have sex with him. The complainant engaged in multiple sex acts with the accused one time. The accused received a global sentence of six-and-one-half years.
[30] The Ontario Court of Appeal dismissed the accused’s appeals from his conviction and sentence. Like the trial court, the appellate court followed the sentencing principles in R. v. D.D., (2002), 2002 CanLII 44915 (ON CA), 163 C.C.C. (3d) 471. The court ruled that the R. v. D.D. sentencing principles were applicable to adult sexual predators who exploit children. According to the appellate court, “[t]hese sentencing principles include that the sentencing objectives of denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing” (para 39).
[31] In R. v. D.M., [2012] O.J. No. 3616, 2012 ONCA 520., the accused was convicted of sexual assault, sexual exploitation and inviting sexual touching. The accused was convicted for sexually assaulting his niece approximately 124 times for three years until she was 19 years old. The complainant moved from Fiji to live in Canada with her uncle, the accused. She was the accused’s dependent and she considered her uncle as equivalent to her father. The incident began with the accused touching her breast, then him touching her vagina, him asking her to touch his penis and eventually lead to sexual intercourse two or three times a week. The accused required the complainant to watch pornography. He threatened to deport her back to Fiji if she told anyone about these incidents. The trial judge imposed a sentence of three years.
[32] The court of appeal determined that the trial judge made an error of law for setting the sentencing range too low. The trial judge should have referred to ss. 718.01 and .2 (ii.i) and (iii) of the Code which provides that where a child under 18 is sexually abused, the primary sentencing objectives are denunciation and deterrence. The provision also states that the fact that the abuser was in a position of trust is an aggravating factor. In considering the ss. 718.01 and .2 (ii.i) and (iii) principles, along with the fact that the accused was in a position of trust, the appellate court sentenced the accused to seven years.
[33] In R. v. R.B., [2013] O.J. No. 278, 2013 ONCA 36., the accused was convicted of sexual assault, sexual interference, inviting sexual touching and sexual exploitation. The accused’s conviction arose from repeatedly sexually abusing his niece when she was between 6 and 14 years of age. The misconduct progressed from touching to intercourse. He was sentenced for five year’s imprisonment comprised of four concurrent sentences: five years imprisonment for sexual assault, one year concurrent for invitation to sexual touching and four years concurrent for sexual exploitation.
[34] The accused appealed his conviction and sentence. The accused was a permanent resident of Canada and a five year sentence would have him deported to his home country, El-Salvador. He requested that the totality of the sentence be apportioned differently from the trial judge. He requested a maximum sentence of two years less a day for any of the counts 1, 3 and 4, but to have them run consecutively to maintain a total sentence of five years imprisonment. The appellate court found that if they were to adopt the accused’s submissions, the overall principles and objectives of sentencing would still be addressed and would continue to reflect the objective seriousness of the offence. However, his appeal was still dismissed.
[35] The proper approach to applying the principal of totality is to identify the accused’s most serious offence. Next the court must determine the total sentence so that each offence adds up to the total sentence. The court can then decide whether a sentence should be consecutive or concurrent to the other sentences imposed. The court found that the most serious part of the accused’s offence was the sexual assault of his niece (count 1). The court followed R. v. D.M. (above) which ruled that that the proper range of sentence for prolonged sexual abuse and assault of a child by a person in a position of trust is five to six years in the penitentiary. In following R. v. D.M. the court decided that the accused’s sentence could not run for two years less a day concurrently. Such a sentence would be “inadequate or artificial” (para. 31).
Position of Trust: Aggravating Feature
[36] In R. v. Manjra, [2009] O.J. No. 2484, 2009 ONCA 485., the accused was convicted of sexual interference for removing a seven-year-old girl’s pants and underwear and licking her private parts when she visited his home. The accused was the complainant’s neighbour. The accused was sentenced with 17 month’s imprisonment and 24 months’ probation. The trial judge characterized the offence as a breach of trust because the accused lived next door to the complainant and the complainant had visited the accused many times before.
[37] The accused appealed his conviction and sentence. The accused argued that the trial judge erred in principle by characterizing the circumstances of this case as a breach of trust and by characterizing the breach of trust as an aggravating factor. His appeal was dismissed.
[38] The appellate court reasoned that the judge was entitled to characterize the relationship between the accused as an aggravating factor. The trial judge was also entitled to characterize the relationship between the parties as one at the low end of a trust relationship. The accused and complainant were not strangers. The court agreed that when the complainant called the accused “uncle”, she used the term generically. However, the court took into account that the complainant was a seven-year-old girl visiting the accused’s house. The court also considered the fact, from the accused’s testimony, that he gave the complainant and other children popsicles. The court held that that the sentence imposed was within the range for the offence, even for a first time offender.
[39] The Defence relies on the following submission:
[40] In R. v. Wasser, [2007] O.J. No. 2503, 74 W.C.B. (2d) 306, the accused was charged and convicted of obtaining the services of a female under the age of 18 years for consideration. He was charged and found not guilty of six other charges including similar charges at different time periods, sexual assault and making child pornography. The accused arranged a bondage session through an adult chat line with a 16-year-old girl, D.B. He was unaware that D.B. was a minor. The accused attended a rooming house with rope, a blindfold, alcohol and candy. With the encouragement of D.B.’s friend G.O., he bound D.B., groped her, and engaged in other sexual activity short of intercourse.
[41] The accused served 31 days in pre-trial custody and was on judicial interim release for ten months. Three of his months on judicial interim release were under stringent conditions.
[42] The incident was characterized by the court as an isolated “aberration” (para. 21) that did not involve a breach of trust or abuse under s. 718.2(a)ii of the Criminal Code. The court describes the accused as “a man under extraordinary stress taking an uncharacteristic step of calling a chat line. He allowed events to overtake him once he spoke with G.O.” (para.20).
[43] The accused was sentenced to 62 days of imprisonment and 12 months of probation with conditions. His sentence amounted to time already served.
[44] Justice Kiteley’s reasons for the sentence emphasized the objective of denunciation. The court determined that ordering a period of incarceration effectively denounced the accused’s behaviour. The court was not concerned about the sentencing principles of deterrence or rehabilitation since the accused had accepted responsibility for his actions and was ashamed of his behaviour.
[45] The trial judge considered there to be other mitigating features including the accused’s active contributions to his workplace, family and religious community. The accused was a well-like man. After losing his job at York University in the engineering faculty, he had since started his own business that merged his engineering and business skills. He was married with three daughters and had all of his family’s support.
[46] It is noted that this decision preceded the current minimum prescribed punishments. The decision suggests such acts are not abuse under s. 718.2a(ii.1). I did not understand from the defence that they were arguing that these phone calls and invitations did not amount to abuse of M.M.
Mitigating and Aggravating Factors
[47] There are a mitigating factors in this case.
[48] Mr. K.G. is a loving father of a severely challenged 13 year old daughter. He has a good, steady, work record. He is the sole bread-winner of the family.
[49] Mr. K.G. had one prior criminal conviction 17 years ago but he has never been convicted of a similar offence to these charges.
[50] There was no actual face to face meeting between Mr. K.G. and M.M.
[51] There are also aggravating factors in this case.
[52] Mr. K.G. was in a position of trust in relation to the complainant. He was the complainant’s father’s best friend. Mr. K.G. was treated as an uncle by the complainant. He testified that the complainant was like a niece to him; she called him “Uncle R..” This abuse of trust is an aggravating factor.
[53] During the commission of the offences, Mr. K.G. emphasized to the complainant the need for secrecy. He told her not to tell anybody. In abusing his position of trust, this is a further aggravating factor; if the complainant had complied with Mr. K.G.’s requests these crimes may not have been revealed.
[54] During the commission of the offences, Mr. K.G. attempted to involve her young friends in these acts.
Principles of Sentencing
[55] The Criminal Code sets for the purpose and principles of sentencing:
- 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
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2 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, and, without limiting the generality of the foregoing,
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances
[56] In cases of invitation to sexual touching of a person under the age of 16, and attempts to obtain sexual services of a person under the age of 18, the strongest principle in sentencing is denunciation, general and specific deterrence: R. v. Woodward, supra.
Reasons
[57] For Count 1, the legislation mandates a 45 mandatory minimum sentence of incarceration. For Count 2, the legislation mandates a six month mandatory minimum sentence of incarceration.
[58] These charges are Mr. K.G.’ first offence of this kind and he has not been before the courts in over 17 years. There has been no incident since these charges, over a five year period.
[59] I understand that there was no pre-sentence custody.
[60] I consider that the seriousness of these offences is mitigated by the fact that they were brief conversations over a few days. The offence is in the conversations. I agree that the trust relationship could not be emphasized here as Mr. K.G. had never provided care or been alone with M.M.
[61] In light of a careful consideration of both the mitigating and the aggravating factors, this court sentences Mr. K.G. to one year imprisonment on count 1, one year imprisonment on count 2, to be served concurrently.
Ancillary Orders
[62] Section 490.012 (1) of the Code mandates an order requiring the person convicted of a “designated offence” to comply with the Sex Offender Information Registration Act. Child pornography under s. 163 of the Code is a “designated offence” under s. 490.011(a). As Mr. K.G. has been convicted of two separate “designated offences,” he is required to comply with this order for life, pursuant to s. 490.013(2.1) of the Code.
[63] The Crown and Defence agree that there is to be a DNA authorization pursuant to s. 487.051(1) of the Code. This order will issue.
[64] Pursuant to s. 737(2)(b)(ii) of the Criminal Code, individuals are required to pay a victim surcharge of $200 for each indictable offence per offence. Mr. K.G. has been convicted of two separate indictable offences and is, therefore, required to pay a total victim surcharge of $400. Pursuant to Order in Council No. 2173/99 of the Lieutenant Governor of Ontario, Mr. K.G. shall pay the victim surcharge within 90 days of his release from custody.
[65] I order pursuant to s. 161(1) of the Criminal Code which prohibits Mr. K.G., for a period of five years, from:
(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre;
(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;
(c) having any contact - including communicating by any means - with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; with the exception of contact with his daughter.
[66] I order a term of probation following his release from custody for a period of two years with counselling for Mr. K.G..
[67] Mr. K.G. is to have no contact with M.M. during the period of his probation.
Final Decision
[68] Accordingly, I order Mr. K.G. to serve a one year custodial sentence for each offence he was convicted of; one year for count 1, and one year for count 2, to be served concurrently. On his release, he will be subject to a probationary period for two years, with the conditions set out above. I order a DNA order, a lifetime SOIRA order and a s. 161(1) order with the exception noted above.
M. J. Donohue, J.
Released: October 2, 2015
CITATION: R. v. K.G., 2015 ONSC 6094
COURT FILE NO.: CR-12-2008-00
DATE: 2015-10-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
K.G.
Defendant
REASONS FOR SENTENCING
M. J. Donohue, J.
Released: October 2, 2015