R. v. Kim, 2023 ONSC 4441

COURT FILE NO.: CR-21-40000600-0000 DATE: 20230731 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Beum Kim

Counsel: Rochelle Liberman, for the Crown Elliott Willschick, for Beum Kim

HEARD: June 9, 2023

PINTO J.

reasons for sentence

Overview

1Following a judge alone trial, I convicted Beum "Alex” Kim of the following offences under the Criminal Code:

1. Aggravated assault, contrary to s. 268(2);
2. Sexual assault with a weapon, contrary to s. 272(1)(a);
3. Assault with a weapon, contrary to s. 267(a);
4. Forcible confinement, contrary to s. 279(2);
5. Threatening death, contrary to s. 264.1(1)(a);
6. Extortion, contrary to s.346(1); and
7. Fraud under $5,000, contrary to s. 380(1)(b).

2In my reasons for judgment, R. v. Kim, 2023 ONSC 1535, I found that Mr. Kim, along with an associate, Chang Yul “Colin” Lee, forcibly confined and assaulted the complainant, TK, over a period of 33 hours between February 25 and 27, 2019 at a bar called Cheers in Toronto. What TK endured over those hours can only be described as torture. The amount of $1,673 was also withdrawn from TK’s bank account without his authorization.

3Mr. Kim pleaded guilty to assault with a weapon and threatening death but contested the rest of the charges that included kidnapping. I found Mr. Kim guilty of all the charges except kidnapping.

4Mr. Lee was tried separately in the Ontario Court of Justice (OCJ) before Faria J. on somewhat different charges and convicted and sentenced, see R. v. Lee, [2022] O.J. No. 3294. Mr. Lee’s sentence included a term of imprisonment of 4 years less 3.5 months (on account of pre-sentence custody).

Circumstances of the Offences

5The victim, TK, was 28 years old at the time of the offences. He was born in South Korea, moved to Canada in 1998, moved back to South Korea in 2010, and returned to Canada in August 2018, a few months before the events in question. He was looking for a job and was advised by a roommate that Mr. Kim was looking for assistance at Cheers, a karaoke bar in the Steeles and Victoria Park area of Toronto.

6TK met with Mr. Kim, who appeared to be the bar manager and Mr. Lee his associate, and started working right away at the bar. TK worked three shifts but decided that he did not want to continue working there as he was not being paid properly, and illicit activities such as prostitution and drug use appeared to be taking place. TK advised Mr. Lee that he wanted to quit, but was persuaded by Mr. Lee to return to the bar and advise Mr. Kim in person.

7In the late evening of February 25, 2019, TK attended the Cheers bar. The establishment had a main bar area and a number of private rooms. TK was ushered into one of the private rooms to meet Mr. Kim and Mr. Lee. A verbal, then physical, altercation took place when Mr. Kim and Mr. Lee took TK’s phone and started deleting his contacts. Over the next 33 hours, TK was forcibly confined, assaulted and tortured by Mr. Kim and Mr. Lee. I found that Mr. Kim was the ringleader and directed the attacks.

8I found that TK was:

a) Beaten with a 3 or 4-foot metal bar and a microphone; b) Kicked and punched all over his body; c) Stripped completely naked and tightly bound with duct tape including over his head; d) Burned with cigarettes and a crack pipe on his face, forehead and back; e) Forced to kneel in, and lay on, glass shards; f) Urinated on, and forced to endure feces smeared under a ski cap placed on his head; g) Penetrated anally with the tip of a microphone after being told by Mr. Kim that “I’m going to stick this up your ass,” or words to that effect; h) Brutalized by having hot sauce smeared on his testicles, and having hot and then cold water thrown on his penis; i) Prevented from going to the washroom so that he had to urinate on himself; j) Deprived of food and only given sips of liquid over the course of his confinement; k) Threatened that he was going to be trafficked, and that “Black guys” were going to come and rape him; l) Threatened with further bodily harm such as having his Achilles heel cut; m) Threatened that his personal and financial information was going to be used; n) Threatened that his family, girlfriend, and friends were going to be hurt or killed; and o) Made to write a list of his 30 biggest sins, or things he had done wrong in his life.

9TK was eventually released from the Cheers bar on the morning of February 27, 2019. Mr. Lee drove him to a bank where more money was taken out of his account without authorization. After a few more hours at Mr. Lee’s residence, TK was released. Later that day, he reported his ordeal to the police.

10Mr. Kim and Mr. Lee never testified at the trial before me. The reasons for their conduct were never determined. TK alluded to the fact that the assailants may have believed that he had some incriminating information about them but he denied this was true.

Circumstances of the Offender

11I obtained information about Mr. Kim from a Pre-Sentence Report (PSR) that was prepared by Elaine Ryan, a Probation and Parole (P&P) Officer.

12Mr. Kim, now 51, was born in Seoul, South Korea in 1971. He immigrated to Canada in 1988, at the age of 16, along with his parents and younger brother. He reported that he became a Canadian citizen in 1996. Mr. Kim lives with his parents, who are his sureties. He reported having a good childhood, with no history of abuse or neglect. He described his parents as “loving and supportive” who were strict but did not use physical discipline as a form of punishment. His parents were always gainfully employed and owned and managed a convenience store for three years and after that, a coffee franchise for 10 years. Mr. Kim reported no traumatic events in his childhood. There were no issues within his family growing up. According to the PSR, Mr. Kim gets along well with his brother.

13After completing junior high school in South Korea, Mr. Kim graduated from high school at Cedarbrae Collegiate in Toronto. He attended the University of Toronto and attained a degree in Arts and Science. Mr. Kim reported that he was always a good student and typically received above average grades. He did not report ever getting suspended or expelled, albeit while in high school, he was charged with assault for beating up another student who was bullying his brother.

14Mr. Kim is a widower. His wife passed away from a heart attack in 2013, when she was 39. The couple were married in 1996 and have a daughter, now 20 years old, who lives on campus at a community college. The daughter is not aware of Mr. Kim’s criminal charges or conviction. Mr. Kim advised the P&P Officer that the death of his wife was very hard on him as they shared a good relationship. He is currently single and has not been involved in any other intimate relationship since his wife’s passing.

15Mr. Kim does not currently have a source of income. He reports feeling terrible that his elderly parents have been negatively impacted by his legal situation. He worries that if he is incarcerated there will be nobody to care for his aging parents whose health is declining. Mr. Kim reported that both his parents have symptoms of dementia and often repeat themselves and misplace things.

16Mr. Kim’s father described Mr. Kim as not having any alcohol, drug, or mental health issues and being a good son and good father to his daughter.

17The P&P Officer reported that she spoke to Mr. Kim’s former employer who confirmed that Mr. Kim worked with him for approximately 18 years and was a very good employee during those years. Apparently, the employer would be prepared to take Mr. Kim back “when his court matters are dealt with,” although it is not clear whether the former employer is aware of the nature of Mr. Kim’s offences.

18The PSR states that Mr. Kim drinks alcohol on an occasional basis, approximately one or two beers per month, and sometimes a shot or two of liquor. Mr. Kim claims that for the past five years, he has hardly been drinking at all as it is “just not my thing.” With regards to drugs, Mr. Kim reported trying marijuana a couple of times but stopping as he did not like the smell or taste of the drug. Mr. Kim admitted to using cocaine occasionally between 2015 to 2018 approximately once per month. He claimed that he quit on his own accord and has not used cocaine, or any other illicit drugs, since that time. Mr. Kim believes that his alcohol or drug use has never been a problem as he was always in control.

19In terms of Mr. Kim’s physical health, he has been diagnosed with diabetes and experiences unpleasant side effects as a result. He is not insulin dependent at this time but reportedly was told by his doctor that he may soon have to start administering insulin. Mr. Kim reported that he has some issues with his eyes and recently had a Magnetic Resonance Imaging (MRI) completed, the results of which have not come back but his doctors speculate that his eye issue may be related to his diabetes.

20Following the incidents in question at the Cheers bar, Mr. Kim was arrested on February 28, 2019 and detained until April 26, 2019, a period of 57 days. The Crown acknowledges that Mr. Kim is entitled to a Summers credit of 85.5 days: R. v. Summers, 2013 ONCA 147, 114 O.R. (3d) 641, Criminal Code, s. 719(3.1). Mr. Kim obtained bail and was subject to house arrest with an ankle monitor, among other conditions.

21Mr. Kim has a dated and more recent criminal record. In December 2010, Mr. Kim received a Conditional Discharge and 12 months probation for assault. During the supervisory period, he reoffended and received a second Conditional Discharge and 12-month probation order dated June 9, 2011, for charges of Theft Under and Assault. Assessments following these offences indicated no mental health or substance abuse issues. Mr. Kim completed his required Community Service Hours and reported to his probation officer as required.

22On October 23, 2019, at a time when he was subject to bail conditions in respect of the Cheers allegations, Mr. Kim became involved in criminal activity when he attended a Chapters store, placed four mask packages into his jacket pocket, went to the magazine section, continued to place items in his pocket, and went to a Starbucks and then left without paying. On January 27, 2020, he pleaded guilty, received a Conditional Discharge and 12 months’ probation for Theft Under. He attended counselling with a psychotherapist and successfully completed his probation term.

23Then, on July 7, 2021, Mr. Kim attended a Shoppers Drug Mart, picked up some Gatorade as well as two meat packages and left without payment. He was with his mother, one of his sureties, at the time. On November 3, 2021, he pleaded guilty to escaping lawful custody and failing to comply with a release order. He received credit for 60 days of pre-sentence custody, and was incarcerated for a further 30 days.

24The Crown concedes that Mr. Kim’s criminal activity from over a decade ago is dated and does not seek to rely on it. Instead, Mr. Kim’s more recent criminal activity, that occurred after he was charged with the present offences and was on bail, figures into a dispute between the parties about whether Mr. Kim should get a Downes credit.

25Relying on R. v. Thomas, 2022 ONCJ 232, the Crown submits that Mr. Kim is entitled to some Downes credit, however, the Court should consider the extent to which Mr. Kim should obtain a full Downes credit given that while he was on restricted bail, he accumulated a criminal entry and a conviction.

26In Thomas, the law with respect to the Downes credit was described as follows:

46I will deal now with Mr. Thomas’s request for Downes credit. Where an offender is subject to strict bail terms, this may be considered as a mitigating factor on sentence, especially where the offender is subject to house arrest. However, the credit to be given for strict bail terms, including house arrest is not automatic. In Sentencing, Principles and Practice, the authors state, “[t]he extent to which bail terms should mitigate the sentence imposed is a matter for the sentencing judge to decide with regard to all the factors, including whether the offender breached his bail terms and whether he sought to have them relaxed.” In this regard, the authors cite the Ontario Court of Appeal in R. v. Junkert, 2010 ONCA 549, at para. 37 and the Newfoundland Court of Appeal in R. v. RJH, 2012 NLCA 52, at para. 10. (footnotes omitted)

27The Defence disagrees and submits that there is no reason why Mr. Kim should not receive a full Downes credit given his restrictive bail conditions. The Defence submits that Mr. Kim’s offences while on bail were relatively minor and occurred while he was under strict house arrest with ankle monitoring. The Defence suggests that Mr. Kim’s conduct was an aberrant response to long confinement with his parents at a time when the Covid-19 pandemic was still raging.

Impact on the Victim

28TK provided a victim impact statement. He stated that his ordeal at Cheers left him with physical, emotional, and psychological trauma that continues to haunt him daily. He has permanent scars and marks on his body that are a reminder of his ordeal. The healing process was long and challenging. He claims that he constantly relives the moments of horror that he experienced from his confinement in vivid nightmares, and struggles with anxiety and depression as a result. He claims that the traumatizing experience has left him questioning his own self-worth and his sense of safety and security has been shattered. He has been forced to make significant changes to his life such as moving to a new location, seeking additional security measures, and withdrawing from social situations. TK asks the court to impose a sentence that reflects the gravity of the crimes committed against him.

29Following the assault on him, TK’s eyes were bloodshot and took 3 weeks to heal. He had burns to his face, head, back and body. His nose was fractured from the assaults. There was a wound on his head and cuts and abrasions on his legs and feet. He has permanent scarring from the burn marks, and his tattoo is disfigured.

30I find that the psychological injuries that TK suffered were profound, the impact of which continues to this day.

Sentencing Position of the Crown

31The Crown seeks a 9-year sentence of imprisonment for Mr. Kim based on following:

a) Mr. Kim was the ringleader of the unprovoked attack on TK. That is evident from Mr. Lee’s deferential conduct towards Mr. Kim, and TK’s evidence which I accepted at trial. b) Mr. Lee pleaded guilty to aggravated assault, forcible confinement, extortion, transmitting intimate images, and fraud under. He received a 4-year sentence before an adjustment for time served. Unlike Mr. Kim, Mr. Lee pleaded guilty to most of his charges and was not convicted of sexual assault with a weapon. Mr. Kim should receive a longer sentence of imprisonment than Mr. Lee. c) The offences amounted to torture and sexual assault and were extremely serious. d) In R. v. Tourville, 2011 ONSC 1677 at para. 30, Code J. suggested that the high range for aggravated assault was 4 to 6 years, and subsequently in R. v. Seerattan, 2019 ONSC 4340 at para. 36, Code J. modified this to suggest that 6 to 8 years imprisonment is appropriate for the high end range for aggravated assault. Of note in Mr. Kim’s case, he has additionally been found guilty of sexual assault with a weapon. e) In R. v. Neapetung, 2017 SKPC 43, the offender pleaded guilty to aggravated assault, forcible confinement, and a firearms offence. He received a sentence of 7 years for each of the aggravated assault and forcible confinement offences, to be served concurrently. He received an additional year for any remaining charges to be served consecutively. In total, Mr. Neapetung received a sentence of imprisonment of 8 years prior to the application of any credit. The Crown submits, by comparison, while Mr. Kim has not been found guilty of a firearms offence, he has been convicted of sexual assault with a weapon in addition to the aggravated assault / forcible confinement offences and therefore, his sentence should be greater than 8 years. f) The Crown cautions the court to not be focused on the fact that the anal penetration of TK with a microphone was not extreme. To focus on the fact, or extent, of penetration and not on the physical and psychological violation of the sexual assault itself, is to return to a distinction between sexual assault and penetrative rape that has long had no place in the law: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424 at paras. 141 and 142; R. v. Allen, 2017 ONCJ 205 at para. 35. g) The Crown notes that in R. v. Marozoff, 2010 BCCA 546, a case with some similarities, the offender received a jail sentence of 12 years, albeit the offender in Marozoff was found guilty of kidnapping, whereas Mr. Kim was acquitted of the kidnapping offence.

32In sum, the Crown submits that the sentencing principles in the Criminal Code call for a very strong message being sent that signals the denunciation of the horrific type of abuse and torture that TK endured.

33In addition to nine years of imprisonment, the Crown also seeks:

a) An order that Mr. Kim be prohibited from communicating directly or indirectly with TK, pursuant to s.743.21 of the Criminal Code; b) An order under s. 490.012 of the Criminal Code that Mr. Kim comply with the Sex Offender Information Registration Act (SOIRA), S.C. 2004, c.10. The Crown submits that the Crown proceeded by way of indictment and Mr. Kim was convicted of sexual assault with a weapon, contrary to s. 272(1)(a), which carries, in the circumstances of this case, a term of imprisonment not to exceed 14 years. The Crown submits that it is mandatory that Mr. Kim register under SOIRA for 20 years pursuant to s. 490.013(2)(b). c) An order that Mr. Kim be prohibited from carrying or applying for weapons, pursuant to section 109 of the Criminal Code.

Sentencing Position of the Defence

34The Defence acknowledges the “pretty horrible facts” in this case. However, the Defence submits that there is evidence that, for the most part, Mr. Kim has led a pro-social life. He went to university, has been gainfully employed, and has a 20-year-old daughter. His dated criminal record was in respect of a simple assault.

35The Defence characterizes Mr. Kim’s breach of his bail condition in July 2021 as a “slip up” that resulted from his humiliation of being financially dependent on his parents. The Defence submits that Mr. Kim being forced to wear an ankle monitor for years has been extremely onerous, and this factor should be taken into consideration with respect to the Downes credit.

36In respect of the genesis of the incident at Cheers, the Defence submits that Mr. Kim found his co-accused Mr. Lee to be an intimidating person, and that Mr. Kim got caught up in the situation which snowballed into criminality.

37The Defence submits that Mr. Kim should receive a global 4-year sentence, and that he should be credited for 2 years as a result of a combination of the Downes and Summers credit. The Defence notes that a 4-year sentence is roughly what the co-accused Mr. Lee received in the OCJ. The Defence further submits that, if I render a 2-year custodial sentence, the sentence should be upped to 2 years plus a day to allow Mr. Kim to serve his sentence in a federal penitentiary where appropriate services would be available to Mr. Kim given his health condition. In the alternative, Mr. Kim seeks a sentence of 2 years to be served in the community given his and his parents’ health issues.

38In response to the Crown’s argument that Mr. Lee received a 4-year sentence after pleading guilty, but that Mr. Kim forced this matter to trial and should receive a higher sentence, the Defence argues that: (a) Mr. Kim should not be punished for exercising his constitutional right to a trial; (b) he pleaded guilty at the outset to assault with a weapon and threatening death; and (c) he pleaded not guilty to kidnapping, and was acquitted of that charge.

39The Defence submits that that Mr. Kim has expressed some remorse for his actions as indicated in the PSR and is desirous of seeking a more virtuous path forward. He was raised as a Christian and is keen on studying Christianity once he is out of custody.

40The Defence notes that the offender in R. v. Jayne, 2008 ONCA 258 received an effective sentence of 4.5 years imprisonment after being sentenced for aggravated assault and forcible confinement. The offender had a substantial criminal record and was found to have engaged in a prolonged and violent assault on a vulnerable victim. The Defence suggest that Mr. Kim’s criminal record is far less serious, and that its request for a 4-year global sentence to be served concurrently before the application of any credits, is supported by the case law.

Case law

41Based on a review of the authorities presented to me, I find that a sentence in the range of 9 to 10 years would be appropriate in the circumstances of this case. While a 6-to-8-year sentence may reflect the upper range of aggravated assault as per Seerattan, Mr. Kim’s offences include sexual assault with a weapon. Further, in Marozoff, the offender received a global 12-year sentence for the following offences: kidnapping (12 years), unlawful confinement (seven years), extortion (five years), assault with a weapon (four years), assault causing bodily harm (three years), sexual assault (four years), and threatening (two years), all to be served concurrently.

42I find Marozoff instructive given a number of factual similarities with the present case. In Marozoff, the appeal court described the victim’s ordeal as follows:

The appellant participated in the kidnapping and the initial abuse. Thereafter, the victim was largely under the appellant’s control in the house. The appellant continued to torture and humiliate the victim. He beat and kicked him and assaulted him with a golf club. He burnt his skin with a lit aerosol spray and sexually assaulted him by inserting a toothbrush and latex-gloved fingers in his rectum. The appellant grabbed the victim’s naked genitals and picked him up to the point that he lifted all but the man’s head and heels. As found by the trial judge this was excruciatingly painful. In addition, the appellant, with the rubber gloves still on, tried to force his fingers up the complainant’s nose. Later, he grabbed the man’s moustache and tried to pull it off. The victim was denied food for days. The appellant subjected the victim to extreme physical pain, humiliation, and degradation. The trial judge found that the appellant inflicted this torture for his “own pleasure and gratification”.

43Recognizing that Mr. Kim, unlike Mr. Marozoff, was not convicted of kidnapping, I find that a 9-year sentence, as requested by the Crown, is appropriate for Mr. Kim given the horrific abuse that he inflicted on TK.

44In R. v. Owusu-Sarpong, 2023 ONCA 336, a case cited by the Defence, albeit in support of the proposition that a concurrent, not consecutive, sentence for multiple offences is appropriate, the Court of Appeal upheld a global 16-year sentence in a case with somewhat similar facts. Mr. Owusu-Sarpong was convicted of being unlawfully in a dwelling house, robbery, forcible confinement, aggravated assault, sexual assault with a weapon, possession of a loaded restricted or prohibited firearm, and possession of a firearm contrary to a court order. In upholding the 16-year sentence, the Court of Appeal noted the sentences for each offence as determined by the trial judge:

Count	Offence	Sentence
1	Being unlawfully in a dwelling house.	5 years concurrent.
2	Forcible entry.	Stayed.
3	Robbery.	10 years less 3 years, 3 months for a further 6 years, 9 months to serve.
4	Forcible confinement.	2 years concurrent.
5	Aggravated assault.	10 years concurrent to count 3.
6	Assault with a weapon.	Stayed.
7	Sexual assault with a weapon.	2 years concurrent.
10	Possession of a loaded restricted or prohibited firearm.	5 years consecutive to count 3.
11	Possession of a firearm contrary to a court order.	1 year consecutive to count 3.

45In Owusu-Sarpong, the first seven counts (Counts 1-7) that pertain to the home invasion accounted for a 10-year sentence to be served concurrently, and the firearms related offences (Counts 10 and 11) accounted for an additional 6 years. If I set aside the sentences related to the firearms related offences, I see that a 10-year sentence for Mr. Kim would appear to be in the range of what is appropriate. I recognize that Mr. Kim was not charged with or convicted of robbery, but I note that the aggravated assault alone in Owusu-Sarpong resulted in a 10-year sentence.

46I do not find the Jayne decision, provided to me by the Defence, to be of much assistance. The underlying trial decision, R. v. Jayne, [2004] O.J. No 1506 per Hockin J., indicates that the victim in that case was confined for 45 minutes, whereas TK, the victim in this case, was confined for 33 hours. Although Jayne was upheld by the court of appeal in 2008, the date of the trial and appeal decisions significantly predate the 2019 Seerattan decision of Code J.

Mitigating and Aggravating Factors

47The fact that Mr. Kim did not plead guilty to most of the offences is not an aggravating factor. However, since he did not plead guilty, that issue is not a mitigating factor: R. v. Johnston and Tremayne, [1970] 4 C.C.C. 64 (Ont. C.A.).

48I do not find that Mr. Kim’s personal or family background provides any mitigating factors. The PSR makes it clear that Mr. Kim comes from a supportive family and that he did well academically and completed a university degree. I am aware that Mr. Kim is a widower whose wife passed away in 2013. However, I do not find that the loss of his wife many years ago to be mitigating.

49Similarly, while remorse is a mitigating factor, the accused’s failure to express remorse is not an aggravating factor: R. v. Cormier (1999), 140 C.C.C. (3d) 87 (N.B.C.A.). Here, I find that Mr. Kim expressed very limited remorse for his actions. As the PSR indicates, “the subject takes some responsibility for his offending behaviour, although he adamantly denies that the sexual assault occurred. He stated that he is remorseful for his role in the matter but minimizes his involvement and downplays the severity of the offence.” The PSR indicates that “he acknowledges the harm done to the victim, although he disputes many of the facts that were brought up at his trial.” I find that there continues to be a significant amount of denial by Mr. Kim in terms of his owning up to his conduct. He continues to suggest, contrary to my finding, that Mr. Lee was equally responsible for the horrific abuse inflicted on TK.

50Mr. Kim has been diagnosed with diabetes, but is not insulin dependent at this time. I do not consider his health status a mitigating factor.

51Mr. Kim already had a criminal record, albeit not a very serious or lengthy one. Worryingly, Mr. Kim reoffended while he was out on bail. This is an aggravating factor.

52As Boswell J. explained in R. v. Riedl, 2023 ONSC 2107, the Downes credit is not really a credit, but rather a mitigating factor:

62In R. v. Downes, [2006] O.J. No. 555, the Court of Appeal held that time spent under stringent bail conditions, such as house arrest, may be taken into account as a relevant mitigating circumstance on sentence. The amount of credit to be given is in the discretion of the trial judge and there is no formula that must be followed. It will vary depending on a number of factors including the length of time spent on bail, the stringency of the conditions, the impact on the offender’s liberty and the ability of the offender to carry on normal relationships, employment and activity.

63Though often referred to as a “Downes credit,” any reduction in a sentence imposed on account of stringent, pre-trial bail conditions, is not actually a credit, like the Summers credit for time spent in pre-trial detention. It is a mitigating factor. While it may reduce a sentence, as a mitigating factor it must not be permitted to reduce the sentence below was is fit and just in the circumstances.

53I strongly disagree with the Defence position that Mr. Kim should be entitled to a credit of almost 2 years on a 4-year global sentence as a result of the Downes and Summers credits. Instead, in light of Mr. Kim’s strict bail conditions and other mitigating factors, I would reduce his sentence by 3 months. I do so notwithstanding that he reoffended while on bail given the Crown’s position that Mr. Kim is not wholly disentitled to a Downes credit, but rather should not get the full benefit of it given that he reoffended while out on bail.

54In terms of aggravating factors, the sheer brutality of Mr. Kim’s actions stands out. He decided to torture, humiliate, and sexually assault TK over many hours and threaten him with death; and he directed Mr. Lee to do the same. Mr. Kim’s conduct had a significant impact on TK that will likely last a lifetime.

Sentencing Decision

55I note that the Crown requests a 9-year sentence of imprisonment. I consider the Defence position, that a global 4-year sentence is appropriate, to be wholly unreasonable given the case law.

56I have considered the sentencing principles in the Criminal Code, particularly ss. 718 and 718.2, and find that a global 9-year sentence is appropriate. I grant Mr. Kim a Summers credit of 3 months arising from the credit of 85.5 days (approximately 3 months) that he served; and I would further reduce his term of imprisonment by a further 3 months in light of all the mitigating factors which include the Downes credit.

57I agree with the Crown in respect of the ancillary terms of sentence.

58Accordingly, I order Mr. Kim sentenced as follows:

a) 9 years in a penitentiary, less 6 months in respect of the Summers and Downes credit on the count of Aggravated Assault (Count 2), so Mr. Kim will be required to serve a further 8.5 years in custody. b) 2 years in respect of the Sexual Assault with a Weapon (Count 3), served concurrently; c) 4 years in respect of Assault with a Weapon (Count 4), served concurrently; d) 2 years in respect of Forcible Confinement (Count 5), served concurrently; e) 2 years in respect of Threatening Death (Count 6), served concurrently; f) 1 year in respect of Extortion (Count 7); served concurrently; g) 1 year in respect of Fraud under $5,000 (Count 8), served concurrently;

59The following ancillary orders are imposed:

a) An order that Mr. Kim be prohibited from communicating directly or indirectly with TK for the duration of his custodial sentence, pursuant to s.743.21 of the Criminal Code; b) An order under s. 490.013(2)(b) of the Criminal Code that Mr. Kim comply with the Sex Offender Information Registration Act (SOIRA), S.C. 2004, c.10, for a period of 20 years; c) A DNA order based on the “primary designated offence” of Sexual Assault with a Weapon (Count 3); and d) An order that Mr. Kim be prohibited for life from carrying or applying for weapons, pursuant to section 109 of the Criminal Code.

Pinto J.