Court File and Parties
COURT FILE NO.: CR-14-00002183 DATE: 20170501 CORRIGENDA: 20170508 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – K.M. Defendant
Counsel: Ms. Gleitman, for the Crown Ms. Fernandes, for the Defendant
HEARD: April 4, 2017
Publication Restriction Notice
Pursuant to subsection 486.4 of the Criminal Code, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published.
Revised Reasons for Sentence
The text of the original Reasons has been corrected with the text of corrigendum (released todays’ date)
edwards j. :
Introduction
[1] A jury convicted K.M. of one count of sexual assault, one count of sexual touching and one count of invitation to sexual touching. The victim in this case was approximately 13 years of age at the time of the offences (February 1, 2011 through December 31, 2011), and was approximately 19 years of age at the time that she gave her evidence to this Court.
[2] I conducted a Gardiner hearing on February 23, 2017, as a result of which I determined that K.M., as reflected in the verdict of the jury, did the following:
a) Rubbed oil on the complainant’s stomach for a sexual purpose;
b) Participated in mutual masturbation with the complainant on more than one occasion;
c) Had sexual intercourse with the complainant more than once.
[3] On these factual findings, the Crown seeks a sentence of six to seven years incarceration accompanied by various ancillary orders. The defence seeks a sentence of one year incarceration plus three years probation.
Circumstances of the Offender
[4] As was his right, K.M. chose not to testify at either of his trials (a mistrial having occurred with the first trial); at the Gardiner hearing; nor did he testify at the sentencing hearing. I did have the opportunity to assess K.M. during the course of a voir dire conducted with respect to the adequacy of the interpretation services that were provided to him at the first trial. He struck me during the course of that voir dire as being a sincere individual, which is also reflected in the various letters of reference that were filed as part of the defence sentencing submissions (Exhibit 4).
[5] K.M. was born in Vietnam in 1972 and immigrated to Canada with his parents in 1984. He has been employed as a hairdresser, and on all accounts is a hardworking individual who has also volunteered at his local church. The letters of reference written on his behalf all reflect on the fact that the individuals writing those letters were extremely surprised with K.M.’s conviction, which is not overly unusual in situations such as those presented before this Court.
[6] K.M. is a first offender and will be facing incarceration for the first time in his life.
Victim Impact Statements
[7] As previously noted, the victim in this case at the time of the sexual assaults was 13 years of age. At the time of the sexual assaults K.M. was living with the complainant’s family, and while not standing in a position of a father figure was providing some help to the complainant’s family as he would, on occasion, assist in taking the children to school.
[8] The complainant noted, in both her evidence at trial and in her Victim Impact Statement, that she had been specifically told by her mother not to have any physical contact with K.M. Despite this admonition, the complainant did not listen to her mother and kept the events with K.M. secret. As a result of what occurred there were arguments between the complainant and her mother, but now with the benefit of time and looking back the complainant states in her Victim Impact Statement:
…I feel like K. stole my relationship with my mother from me. To this day I am still trying to repair that relationship with her.
[9] While the complainant was 13 years of age at the time of the assaults and is now approximately 19 years of age, she demonstrates a maturity for what happened and how it may impact not only on her now but in the future. As far as the future is concerned, the complainant indicates in her Victim Impact Statement:
One of my biggest fears right now is my future relationship. When I am older or when I am in a serious relationship with someone, I fear I will have flashbacks about what happened and destroy everything. I don’t know how to tell my partner what happened, or how he will accept. I am sure it will affect our relationship, and I don’t know if I can deal with the shame and guilt. Sometimes I think about telling my closest friends but I don’t know how they will see me and I don’t think I can take any criticism from them.
[10] In addition to the Victim Impact Statement from the complainant herself I also received, as Exhibit 3, a Victim Impact Statement from the complainant’s mother. As a caring mother, she stated in her Impact Statement:
…I very very blamed on myself how I hurt my daughter. My careless, my wrong trusted to this guy. I attempted to suicide but I didn’t, I just only one thing I could did was call my pastor and got a help…
[11] It is clear from a review of the entirety of the complainant’s statement that the complainant’s mother feels extreme guilt for what happened to her daughter, and that this guilt continues to this day. One can only hope that with the benefit of time and professional assistance that the long-term relationship between the complainant and her mother will be one of a loving relationship, free of any guilt for anything that K.M. did in taking advantage of the complainant and his position of friendship at the time with the complainant’s mother.
[12] While I am sure many have already told the complainant and her mother that they are in no way responsible for what happened in 2011, this Court should make it abundantly clear that the only person who was responsible for what happened was K.M. and no one else.
Aggravating and Mitigating Factors
[13] There are very few mitigating factors that this Court must take into account in determining an appropriate sentence. The fact that K.M. elected to proceed with a preliminary hearing and two trials was K.M.’s right. Those factors are not aggravating factors, and I do not consider them in any way in imposing the sentence that I do.
[14] K.M. is a first time offender with no prior criminal record, and as such will be facing a period of incarceration for the first time in his life. This is a factor that I take into account in the sentence that I impose.
[15] Sexual assault, particularly a sexual assault on a 13 year old girl is, by its very nature, a crime of violence. A 13 year old simply cannot consent to what occurred in this case. Sexual assault of any kind is abhorrent. Sexual assault on a child is a significant aggravating factor I am required to consider in determining the appropriate sentence – see s. 718.2 (a)(ii.1) of the Criminal Code (the “Code”).
[16] In terms of other aggravating factors, the most obvious and compelling factor that this Court must consider is that K.M. was an adult many years older than the complainant and the complainant was a child. K.M. simply took advantage of the complainant’s age and robbed her of her sexual innocence.
[17] The Crown, while arguing that K.M. was in a position of trust, acknowledges that his position was not that of a classic position of trust. The defence argues that K.M. was not in a position of trust.
[18] When the offences took place, at least in the initial stages, K.M. was living with the complainant’s family and was a friend of the complainant’s mother. He ate dinner with the family and on occasion would assist in taking the children to school. This was not a classic position of trust, but in my view while K.M. was not a father-figure to the complainant, he nonetheless must have known that the complainant had come to trust him and he took advantage of that trust. In my view, K.M. was in a non-traditional position of trust to the complainant and I see this as an aggravating factor for sentencing purposes (see s. 718.2 (a)(iii) of the Code).
[19] In relation to the submission made on behalf of K.M. that there was no gratuitous violence in this case, the Court of Appeal makes clear in R. v. Stuckless, [1998] 127 CCC (3d) 225, that an offender should not be treated more leniently simply because he refrained from the use of additional physical violence in a sexual assault. The absence of gratuitous violence on the part of K.M. is not seen by this Court as a mitigating factor. As well, K.M.’s prior “good character”, as evidenced from the various reference letters, is not a mitigating factor. To characterize his prior good character as a mitigating factor would be a mischaracterization, see R. v. M.(B.), 2008 ONSC 645 at para. 10.
[20] Sexual offences are, by their very nature, generally perpetrated in private. It is largely for that reason that many cases of sexual assault are characterized as a “he said, she said” type of case. The Supreme Court of Canada has made it quite clear that the good community reputation of an accused has little probative value in the overall assessment of an appropriate sentence in a case of sexual assault (see R. v. Profit, [1993] 3 S.C.R. 637).
Position of the Crown
[21] As previously indicated, the Crown is seeking a sentence in the range of six to seven years plus various ancillary orders. The Crown, in my view quite correctly, points to denunciation and deterrence as being the prime sentencing factor in a case such as this where the sexual assault was committed on a 13 year old child. The Crown, as previously noted, argues that K.M. was in a position of trust given that he was at least a relatively close, and certainly a trusted family friend, living in the complainant’s house and sharing the family dinner table.
[22] The Crown, also in my view correctly argues that the complainant was groomed by K.M. to participate in increasingly invasive sexual behaviour, which is an appropriate aggravating factor for this Court to take into account.
Position of the Defence
[23] Ms. Fernandes, on behalf of K.M., correctly argues that when the offences occurred there was no mandatory minimum term for sexual assault on a person under 14 years of age.
[24] Ms. Fernandes argues that the gravity of the offence and parity are important sentencing principles for this Court to consider, and provided to the Court various sentencing authorities that would, in her view, support a sentence of one year incarceration.
[25] It is argued on behalf of K.M., that unlike many of the sentencing authorities where the victim was threatened by the sexual perpetrator to ensure secrecy between the adult and the child, there was no such evidence from the complainant in this case.
[26] As for the Crown’s argument that K.M. was in a position of trust, Ms. Fernandes notes that K.M. was neither a father nor a step-father to the complainant, nor was he in any way financially responsible for the complainant’s family. The most that could be said of the relationship between K.M. and the complainant, was that he lived in the complainant’s apartment for a relatively brief period of time and that he was simply a friend to the complainant’s mother. In short, he was not in a position of authority to the complainant and therefore was not in a position of trust.
[27] As for why the sexual relationship between K.M. and the complainant continued for as long as it did, Ms. Fernandes notes the evidence of the complainant that she viewed K.M. as a boyfriend, and that it was for this reason that the relationship continued beyond an isolated act of sexual contact with K.M.
Analysis
[28] This case involves a number of aggravating factors, many of which I have already reviewed. K.M. abused a person under the age of 14 and committed the offence while he was in a position of trust, albeit not a traditional position of trust with the complainant. There is clear evidence established in the Victim Impact Statement of the significant impact that K.M.’s actions have had on the complainant and her mother. As well, as established from the Gardiner hearing, K.M.’s actions escalated from inappropriate touching, as revealed in the incident involving the rubbing of the oil on the complainant’s stomach, to mutual masturbation and thereafter sexual intercourse.
[29] K.M.’s actions amount to a form of grooming of the complainant, such that it is not difficult to understand how a 13 year old vulnerable victim, like the complainant, innocently saw K.M. as her “boyfriend”. Regardless of whether or not the complainant, in her sexual innocence viewed K.M. as a boyfriend, the fact remains that the complainant was 13 years of age and K.M. clearly took advantage of her.
[30] There are few mitigating factors that this Court could or should take into account, but in this regard, as I have already noted, K.M. is a first time offender with no prior criminal record and on all accounts he has had a good employment background.
[31] The overriding factors that this Court must consider in imposing a fair and just sentence are factors of denunciation and deterrence. K.M. has been convicted by a jury of very serious offences, which have had very serious consequences for the complainant and her mother. The Court of Appeal has consistently over the last number of years made it abundantly clear to trial judges that in sentencing an adult offender who has taken advantage of a child, that the objectives of denunciation and deterrence must take precedence over the impact that a conviction and sentence will have on the offender and the offender’s potential prospects for rehabilitation.
[32] In R. v. Woodward, 2011 ONCA 610, the facts involved – amongst other things, sexual intercourse with a 12 year old complainant. The Court of Appeal upheld a sentence of six and a half years, and in so doing Moldaver J.A. emphasized that “adult predators who seduce and violate young children must face the prospect of a significant penitentiary term”. He also went on to state at para. 76:
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.
[33] In R. v. D.M., 2012 ONCA 520, the Crown appealed a sentence of three years where the accused had sexual intercourse on multiple occasions (124) with a 15 year old girl. A jury convicted the accused of sexual assault, sexual exploitation and invitation to sexual touching. In increasing the sentence from three years to seven years Feldman J.A, at para. 44, stated:
To conclude on the issue of the proper range of sentence, although sentencing is always an individualized process of decision-making, where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary.
[34] In its brief Endorsement in R. v. Mullings, 2012 ONCA 911, the Court of Appeal dealt with an offender who had been convicted of a single act of sexual intercourse with a girl 13 years of age. The Appellant was a person in a position of trust to the complainant. The Court of Appeal determined that on these types of facts the appropriate sentence was five years.
[35] In R. v. C.C., 2015 ONCA 59, the Court of Appeal dealt with an offender who was convicted of sexual assault, sexual interference and possession of child pornography. The sexual assault involved allegations that the accused had sexual intercourse with the complainant over a four year period. The assaults took place when the complainant ranged in age from seven to eleven years of age. The trial judge imposed a global sentence of six years, of which five years was attributed to the sexual assault and sexual interference offences, and one year consecutive for possession of child pornography. On those facts, the Court of Appeal concluded that the sentence imposed was well within the range for offences of that nature and found no basis to intervene.
[36] The most recent decision of our Ontario Court of Appeal dealing with sexual assault on children under the age of 14 is a decision released in February of this year, R. v. Diaa Al-Shimmary, 2017 ONCA 122. Al-Shimmary was a 25 year old man who was convicted of raping an 11 year old girl. The trial judge imposed a sentence of 30 months imprisonment, less 15 months credit for presentence custody. The Crown appealed the sentence and argued that the sentencing judge had failed to give proper effect to the principle of deterrence, and had also failed to consider the impact on the victim. The Court of Appeal agreed and increased the sentence from 30 months to 4 years. In doing so, the Court of Appeal stated at para. 13:
The Crown submits that a sentence of four years, less credit for the respondent’s pre-trial custody, is a fit sentence. While we would have been inclined to impose a longer sentence, in light of the Crown’s submission, we will not impose a sentence longer than four years. [My emphasis]
[37] It is clear to me from a review of the aforesaid authorities from the Court of Appeal that generally speaking, it would be a significant error on the part of a trial judge dealing with an offence of sexual assault involving a young child to consider any sentence less than five or six years in the penitentiary. Even the most recent decision in Al-Shimmary, supra, makes clear that the four year sentence imposed in that case was only imposed because that was the range sought by Crown counsel. Absent the Crown position one can infer from the comments set forth above, that the Court of Appeal would have imposed a higher sentence.
[38] Ms. Fernandes, on behalf of K.M., has suggested that the appropriate sentence in this case is one year. In support of her argument, Ms. Fernandes provided the Court with a number of authorities. In R. v. Sabbe, [2011] O.J. No. 2655, the accused plead guilty to sexually assaulting a complainant who was between the ages of 7 and 12, and to whom the offender stood in loco parentis. The offences involved oral sex, masturbation, and one incident of what might be described as incomplete sexual intercourse. The accused had no prior criminal record and had plead guilty. The Court was presented with a joint submission for a non-custodial sentence. Pierce J. rejected the joint submission and imposed a sentence of 12 months. In imposing the sentence that she did, Pierce J. does not appear to have been referred to any of the appellate authorities to which I have made reference above. In that regard I note that Woodward, supra, was released on September 26, 2011, and the decision of Pierce J. in Sabbe, supra, was released on June 10, 2011. If Woodward had been decided by the time Sabbe was argued, the result in Sabbe may have been different.
[39] In R. v. Charles, [2011] O.J. No. 99, Borenstein J. convicted the accused of sexual assault. The accused was 26 years of age and had a sexual relationship with a 14 year old girl. In his Reasons, Borenstein J. notes that the 14 year old girl initiated the sexual relationship. The Court did not receive a Victim Impact Statement. The accused was a first offender. The Crown sought a conditional sentence. The defence sought a suspended sentence. The sentence that was imposed was a suspended sentence of two years with probation. I again note that this decision was released in January 2011, at a point in time when Woodward had not yet been released by the Court of Appeal. I also note the Crown did not seek a custodial sentence.
[40] I was referred by Ms. Fernandes to R. v. D.A., [2016] O.J. No. 5515, where Bourque J. found the accused guilty of sexual assault and sexual interference with a person under the age of 14. The sexual abuse covered a time period of approximately two and a half years. The accused was initially charged as a youth, and the youth charges were withdrawn. The sexual activities involved initial kissing and fondling, which ultimately escalated to vaginal intercourse and oral sex.
[41] On these facts the Crown in D.A., supra, sought a sentence of three years, while defence counsel sought a sentence in the range of five to eight months. Bourque J. reviewed Woodward and imposed a sentence of two years for the offence of sexual interference, which was ultimately reduced to two years less two days custody, ultimately resulting in a sentence in a provincial reformatory. In his sentencing Reasons, Bourque J. stated:
I have reviewed and considered the many cases cited to me by the Crown and defence. They show the great range of sentence for sexual offences against children and they also show the great variety of different fact situations. I agree that denunciation and deterrence are the primary considerations. I accept that the defendant probably poses a low risk to reoffend. However, I must take into account the severe consequences to the victim and her family and that lack of remorse. I am not sentencing the defendant as a young offender but as an adult. I believe that the fact that these matters began when he was 15 years old does allow me to consider this as some mitigation.
[42] One of the distinguishing factors in D.A. was the age differential between the accused and the complainant. The accused in D.A., when the sexual assaults began, was a young offender. K.M. does not fall into that category. There was also no breach of trust.
[43] I was also referred by Ms. Fernandes to a decision of B.A. Brown J. in R. v. W.S., [2005] O.J. No. 4860. In W.S., the accused pleaded guilty to two charges of sexual assault which had occurred over a one year period and involved a victim who was 9 to 10 years of age. The accused lived in the same residence as the complainant, and the sexual assault involved fondling under the complainant’s underwear. The defence argued that there was no breach of trust, and that the appropriate sentence would be a conditional sentence of 12 months. The Crown had indicated at the time of the guilty plea that it was seeking a term of six months incarceration. Brown J. concluded that the facts did not warrant a finding of an actual breach of trust, but in so doing noted that the accused had become acquainted with the victim’s family and as a result of that relationship was able to acquire the opportunity to develop a relationship with the young girl whom he subsequently victimized. As with W.S., supra, K.M. was able to take advantage of the living situation he had with the complainant’s family. Ultimately, Brown J. in W.S. imposed a sentence of 15 months, as it was “the lowest sentence that would not bring the administration of justice into disrepute”.
[44] If this Court was to accede to the suggestion made by Ms. Fernandes that the appropriate sentence is a reformatory sentence of one year, this Court would have failed in its duty to impose a sentence that reflects the overriding objectives of denunciation and deterrence. This Court would also have failed in its obligation to send a very clear and loud message to men like K.M., that there is a very heavy price to be paid if you prey upon innocent children. The Court of Appeal in R. v. D.D., (2002), 163 CCC (3d) 471 at para. 34 through 38, summarized the relevant considerations and principles that have been consistently followed in cases involving an adult predator who was in a position of trust, and who sexually abuses children over a lengthy period of time. Those considerations can be summarized as follows:
Our children are our most valued and 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: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and 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.
[45] The facts and circumstances of each offender are unique, and therefore require a sentencing Court to frame a sentence unique to each offender. The sentence must reflect all of the appropriate mitigating and aggravating circumstances. In coming to an appropriate sentence, the fact still remains that sentencing judges are bound to follow the guidance given by our Court of Appeal as it relates to similar facts and circumstances.
[46] The appellate authority that I have been referred to and reviewed above, make it clear to me that to impose a sentence less than five years would be to fall into error. With the guidance given to me by the Court of Appeal, and after considering all of the aggravating factors that I have reviewed, together with the mitigating factors, it is the sentence of this Court that K.M. shall be incarcerated for a period of 66 months, i.e. five and a half years.
[47] The ancillary orders that I impose are a requirement for K.M. to provide a sample of his DNA. A SOIRA order shall issue for 20 years. The Crown also sought a weapons prohibition and an order that K.M. not be near any public park where a person under the age of 16 might be present. I decline to make any weapons prohibition order, as I do not have any evidence before me that K.M. has shown any predisposition in the past to use a weapon of any kind. I am also mindful of the fact that K.M., when he is ultimately released from prison, may return to his former profession as a hairdresser. To impose a weapons prohibition may create a situation where K.M. could not work in his chosen profession without potentially being in breach of an order of this Court. If I had any evidence to suggest that K.M. would be the type of individual where a weapon prohibition should be imposed I would do so, but I do not have that evidence and therefore decline to make the order requested.
[48] As well, while I have the jurisdiction under s. 161 of the Code to impose an order that would prevent K.M. attending a public park or public swimming area where persons under the age of 16 might be present, the evidence in this case - while it establishes that K.M. took advantage of a 13 year old child, the evidence does not support a conclusion that K.M. is a child predator in the sense that he would take advantage of young children who might frequent public areas. K.M. took advantage of the situation that he was presented with as it related to the complainant and her mother in this case. I do not see K.M. falling into the category of a sexual predator that requires the imposition of an order under s. 161. I therefore decline to make any further ancillary order.
Justice M.L. Edwards
Released: May 8, 2017
NOTE: As noted in court, on the record, this written decision is to be considered the official version and takes precedent over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written decision that is to be relied upon.
Corrigenda
- The text of the original Reasons has been changed to substitute the accused’s name for initials.
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – K.M. Defendant REASONS FOR SENTENCE Justice M.L. Edwards
