R. v. J. F. K., 2011 ABQB 671

Court of Queen ’ s Bench of Alberta Citation: R. v. J. F. K., 2011 ABQB 671 Date: 20111104 Docket: 080795602Q1, 081593477Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - J. F. K. Accused Restriction on Publication: By Court Order, information that may identify the persons described in this judgment as the complainant may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application.

See the Criminal Code , s. 486.4 _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice K.M. Eidsvik _______________________________________________________ Introduction

[ 1 ] Mr. J. F. K. pleaded guilty to sexual assault and unlawful sexual touching of a young person, Ms. C, while in a position of authority and dependancy over her. This is contrary to sections 271 and 153 (1) (

a) of the Criminal Code . After hearing the agreed facts, Ms. C's evidence, expert reports, similar cases and submissions from the Crown, Defence counsel and Mr. J. F. K. himself, it now turns to me to determine the appropriate sentence. [ 2 ] As I will relate, this is a serious child sexual abuse case. Our Court of Appeal has stated that the starting point for the sentence in such a case is 4 years - but that is for where a single assault has occurred. Here unfortunately, there were 3 years of regular, unprotected sexual assaults - while Ms.

C was between 14 and 17 years old - which resulted in 3 pregnancies and permanent emotional devastation. [ 3 ] Neither party suggested that 4 years of imprisonment was an appropriate sentence in this case. Instead, the debate was over whether I should impose a sentence in the range of 8 to 10 years as suggested by the Crown, in keeping with all of the aggravating factors in this case, or in the range of 6 to 7 years, as argued by the Defence. [ 4 ] In order to determine the sentence therefore, I shall firstly review the facts, touch on the applicable law and apply this to Mr. J. F. K.'s offences against Ms. C.

Facts [ 5 ] Ms. C was first introduced to Mr. J. F. K. when she was 18 months old. Ms. C's mother left her with Mr. J. F. K. and his wife on and off for several years before they moved in with the couple when Ms. C was 6 years old. Ms. C lived with Mr. J. F. K. and the others until she was 9 when she was placed in foster care for a year. She was returned to her mother and Mr. J. F. K. and his wife, along with 3 siblings, when she was 10 years old. Her mother then moved out, leaving her with her younger sister, when she was 12. Ms. C started calling Mr. J. F. K. "Dad" and his wife "Mom". Mr. J. F.

K. was the only father that she knew. [ 6 ] Mr. J. F. K. started having unprotected sexual intercourse with Ms. C shortly after she started her period at age 14. He would have been 35 years old. She was a virgin. [ 7 ] Sexual intercourse became a regular occurrence. Mr. J. F. K. would initiate intercourse after the others had gone to bed. The intercourse generally occurred in the family room, where Ms. C slept, with the TV on to mask any noise. Since no condom or other birth control was used, Ms. C became pregnant in April 2006.

She didn't know however that she was pregnant until she went into labour in October 2006 (she had turned 15 in August). [ 8 ] The birth was traumatic. Ms. C started her labour at school and came home. Mr. J. F. K. took her to a walk-in clinic where she was not seen because she didn't have a health care card. They went home and she was delivering on the toilet when Mr. J. F. K.'s wife came home. Upon seeing the situation she called an ambulance and Ms. C gave birth to a 3 month premature baby in hospital on October 28, 2006. The baby is now 6 years old. [ 9 ] DNA confirmed that the baby was Mr. J. F. K.'s. Ms.

C however made up a story that it was a boy from school that had impregnated her. It is agreed that Ms. C never had had sex with anyone else other than Mr. J. F. K. at that point. The baby was raised initially at their home. [ 10 ] It wasn't long before Mr. J. F. K. started again - in January, 2007, only 2 months after the baby's birth. The assaults were a regular occurrence - nightly and sometimes even twice nightly. [ 11 ] Within a few months, Ms. C was pregnant again. She recognized that she was pregnant this time though and she told Mr. J. F. K..

He gave her money to get an abortion and promised to leave her alone afterwards. She went alone, back and forth on the bus, to the clinic. She was already 18 weeks pregnant though so the abortion was conducted over 2 days in June 2007. She lied to her "Mom" and told her she was preparing for summer school over the 2 days she was away.

[ 12 ] Despite his promise, Mr. J. F. K. insisted on resuming intercourse with Ms. C less than a week after the abortion and while she was still bleeding. In addition Mr. J. F. K. became more obsessive with Ms. C - phoning her often and restricting her activities with friends. It wasn't long before Ms. C realised that she was pregnant again. It was May 2008 - she was 16 at this point. [ 13 ] Mr. J. F. K. and his wife had been fighting - as a result Mr. J. F. K. left the home. Ms. C took the opportunity to tell her "Mom" about her pregnancy and that Mr. J. F. K. was the father.

His wife called Child and Family Services and Ms. C, her sister and baby were removed from the home. Child and Family services called the police and the abuse was disclosed. [ 14 ] Ms. C underwent a second abortion on June 5, 2008, at 16 years old. DNA testing confirmed Mr. J. F. K. was the father. [ 15 ] Ms. C testified at the sentencing hearing. She is now 20 years old. She was angry and courageous in recounting the "legacy" that Mr. J. F. K. has left her with. Initially after being removed from Mr. J. F. K.'s care she felt powerless, confused, and had nobody to turn to. She said "He took everything from me.

He shattered my home environment, he ruined everything I thought that I loved and who I thought I was." [ 16 ] She described the pain that was associated with the nightly sex - she learned to “leave her body” to handle what was happening to her. Sex was associated with pain - pain was all she could feel. She developed a discomfort with her body after being told by Mr. J. F. K. that nobody would be attracted to her body after giving birth. She cannot have a normal sexual relationship now as she continues to black out and have no control over her body.

She doesn't understand normal boundaries and this has led to many sexually charged interactions that she couldn't control. [ 17 ] Mr. J. F. K. justified his sexual involvement with Ms. C by suggesting to the psychiatrist preparing his pre-sentence assessment, Dr. Metelista, that she had "expressed verbal and physical attraction toward him and both initiated their sexual involvement". He indicated that he considered Ms.

C to be his "girlfriend"on an emotional level (even though he agreed that the sexual intercourse started at 14) and although he tried to withdraw from the relationship he "found it difficult to do so". [ 18 ] Dr. Metelista described this thinking as "significant psychological distortions". He opined that Mr. J. F. K. was currently unable to clearly explicate an understanding of how his offensive behaviour will impact the victim through the course of her lifetime. He presented with regret and remorse but was mainly self focused and concerned about his situation. It was the doctor's view that Mr. J. F.

K. did not fully accept his responsibility for his actions and therefore, is at a very early stage of change and treatment. [ 19 ] Statistically, according to the STATIC-99R he is of a "moderate-low" risk of re-offending. However, on the STABLE-2007 Dr.

Metelista opined: “ his results indicate several important concerns that likely maintained his inappropriate sexual involvement with the victim: a lack of important pro social influences in is life; his conflicted and unstable relationship with his common-law (e.g., feeling rejected due to her infidelity); absence of a sexually intimate relationship with an adult; his longstanding perception of being over sensitive to rejection, emotional indifference to the feelings of others (victim: ex common law); propensity to engage in inappropriate impulsive behaviour, ongoing substance dependence (alcohol), and feeling needy and using sexual involvement as a means of coping.” [ 20 ] Dr.

Metelista diagnosed Mr. J. F. K. with alcohol dependance and an individual with prominent features of Cluster B personality disorder (with anti-social, narcissistic and borderline traits). He could also not rule out a diagnosis of pedophilia. [ 21 ] Dr. Metelista felt that Mr. J. F. K. would benefit from a treatment program designed for sex offenders and from an alcohol related one. He opined that his overall risk of re-offending was moderate, but his prognosis is guarded. [ 22 ] Mr. J. F.

K. has a criminal history dating back to when he was 16 years old including convictions for theft, break and enter, forgery, robbery, and 2 assaults with a weapon, to name a few. The last conviction (assault with a weapon) was in 2002. I note that there is no prior sexual criminal history, and no prior federal penitentiary sentences. [ 23 ] Mr. J. F. K. comes from an alcoholic family and he too was in and out of foster care for a time. He had two children with his first relationship and was in a long term second relationship, with no children, when Ms. C and her siblings came along.

He supported them by working full time as a painter.

[ 24 ] Since Ms. C and his wife moved out, he started another relationship and had a fourth child (with Ms. C's baby being the third). His new girlfriend, perhaps not surprisingly, knew nothing about the pending charges. [ 25 ] At the sentencing hearing Mr. J. F. K. spent a good part of it crying. He apologised in open court. Sentencing principles [ 26 ] Considering the serious extended child sex abuse by a person in trust in this case, it is clear that the most important sentencing principles here are denunciation and deterrence.

It is almost needless to say that society expects children to be nurtured and protected - it is abhorrent when the opposite occurs. With respect to deterrence, society expects adults to overcome their "difficulties" such as Mr. J. F. K. alleges he had, and turn away from abusing children for their own pleasure. A sentence should deter Mr. J. F. K. by separating him from society and send him and others a message that this behaviour will not be tolerated. Parliament has said so, as reflected in ever stricter laws and punishment in the area - and judges have been saying so for decades.

This is nothing new. [ 27 ] In order to determine what the sentence shall be, I need to also to consider relevant aggravating or mitigating circumstances and the fact that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (section 718.2). Accordingly, I shall now turn to these considerations. Aggravating circumstances [ 28 ] Both the Crown and Defence agreed about the presence of many aggravating features of this case: - that the victim was under 18 years old (718.2 ii.1) - that Mr. J. F.

K. abused a position of trust (718.2 (iii)) - that the assaults occurred over an extended period - 3 years - that the sexual behaviour resulted in 3 pregnancies, resulting in one birth and 2 abortions [ 29 ] The other aggravating features argued by the Crown, and with which I agree, are: - the sheer number of sexual assaults - occurring on almost a daily basis with only a short break after the first pregnancy and birth means that there were approximately 1000 assaults - the unprotected sexual conduct which exposed Ms. C to not only pregnancies but to diseases - the psychological abuse - or callousness of Mr. J.

F. K. in his control, failing to acknowledge the birth of his daughter and forcing Ms. C to lie about it, and only ending the abuse when authorities finally intervened - the moral blameworthiness and his understanding throughout that what he was doing was wrong - but continuing with it anyway - Mr. J. F. K.'s prior criminal record which includes prior assaults (although I note that there are no prior sexual offences and there were a few years since the last offence) - and finally, and most importantly to Ms.

C, ruining the fragile family life that she had come to know and starting her back down a path of different homes for her, and her younger sister. Mitigating factors

[30] Both Crown and Defence agreed that the eventual acknowledgment and guilty plea prior to trial (the preliminary inquiry hadbeen waived) to the sexual assaults, which included an agreement to a lengthy and quite damning set of facts was a significant mitigatingfactor. The Crown lessened its importance in light of the DNA evidence and strength of the Crown's case. The Defence pointed out thatMs.

C never had to testify and a trial was saved. [31] I agree that the guilty plea is a significant mitigating factor here although the impact on sentencing is lessened by the strengthof the Crown’s case and the fact that the guilty plea came rather late in the day. [32] Further, it is clear that the aggravating factors far outweigh the mitigating one here. Proportionality [33] The

section under which Mr. J. F. K. has been convicted provides for a maximum penalty of 10 years and a minimum of 45days. Our Court of Appeal has repeated that starting points for sentencing are appropriate in R. v. Arcand 2010 ABCA 363. In the R. v.S.(W.B.) (1992) (AB CA), 127 A.R. 65 and again in 2011 in R. v. M.(B.S.) 2011 ABCA 105, the Court of Appealstated that the starting point for a single major sexual assault against a child is 4 years.

As noted above, because of the many aggravatingfeatures in this case, both the Crown and Defence are suggesting a sentence many years above that. [34] The Crown has suggested considering a range between 8 years and the maximum sentence of 10 years as appropriate. TheDefence has noted that many serious aggravating features are missing in this case, such as child pornography involvement, physicalviolence and confinement which should differentiate this case from the most serious - or ones calling for the maximum sentence.

Hesuggested a range of 6 to 7 years as more appropriate. [35] I am cognisant of the Court of Appeal's warning that we should not graft precedents together lest we wind up with aFrankenstein monster, nonetheless I reviewed the cases provided by counsel to give some insight into what other offenders havereceived by way of sentences in similar circumstances - an exercise required to some degree by

section 718.2 (

b) of the Code. [36] I start with one of the more influential cases in my decision: the memorandum of Judgement of the Court of Appeal R. v.A.C.S. 2007 ABCA 367. Factually it is somewhat similar, yet less serious, in that A.C.S. engaged his daughter in sexual intercourseapproximately 150 times (vs about a 1000 here) over a decade and this resulted in the birth of 3 children. His daughter was 17 years old(vs 14 here) when the abuse started. A.C.S. had a sad background of foster homes and physical abuse and he also had a similar criminalrecord to Mr. J. F.

K.'s involving assaults, break and enters, and theft but it was much more dated (16 years) than Mr. J. F. K.'s (4 yearsbetween the last conviction and the start of the abuse). The trial court had imposed a sentence of 6 years. In raising the sentence to 8years the Court pointed out that they were not aware of a similar decision where circumstances such as these resulted in a sentence "ofthis kind" (6 years). Martin, J.A. continued at para. 5: “To illustrate, reference may be had to the decisions of R. v. A.I.S. (1989) 1989 ABCA 185 , 98 A.R. 249 (C.A.), R. v. R.B.L.2005 ABPC 63 and R. v. R.B.W. [1992] A.J.

No. 1074 (P.C.). We affirm that the sentences imposed in those cases were within the rangeof sentences to be imposed for an offence of this kind.” [37] Upon a review of the range of sentences in those cases, I note that the sentences were 12 years (for the abuse of 2 childrenstarting at age 11 resulting in pregnancies), 14 years (for the abuse of 4 children also involving pregnancies), and 10 years (abuse of achild starting at 12 with abortion at 15) respectively.

I note as well that these were incest cases with a higher maximum sentence thanhere. [38] I continue my review of cases by referencing the ones provided by counsel that they argued are similar to the one at hand: - R. v. M.(B.S.) 2011 ABCA 105 - 6 year sentence by the Court of Appeal for major child sexual abuse of a 16 year old over 6 weeksplus 1 year consecutive for the child pornography offence - this case is overall less serious than the one in question since the abuse was

over a lesser period, much lesser frequency and did not involve pregnancies. There was the aggravating factor of the pornographyhowever which is not present here. - R. v. C.(S.J.) 2010 BCPC 243 - 8 years for abuse over a year from the time the victim was 12 years old which involved 2 pregnancies(one child and one abortion). This case is fairly similar although the abuse started at an earlier age, but lasted less time and there was onefewer pregnancy than here. - R. v.

Klasges 2010 ONSC 3419 - 7 years, as requested by the Crown, for the abuse of a 13 year old foster child over 2 years thatresulted in a pregnancy and live birth before she was removed from the home. This case is somewhat less serious than the one at bar inthat the abuse lasted less time and resulted in one pregnancy. It is similar with respect to the abuse of a trusting child in the accused’scare. - R. v. H.(I.J.) 2009 CarswellNfld, 308 (P.C.) - 7.5 years for 4 years of sexual abuse of step-daughter from the age of 13 involving onepregnancy.

Also a sad and similar case to this one but with two less resulting pregnancies. - R. v. G.D.C. 2006 ABQB 832 - 6 years for assaulting a child between the ages of 14 and 18, no pregnancies because a condom used.Joint submission of 4 years was rejected - a range of 6 to 8 years was discussed (but note that this case pre-dates the Court of Appealcase of A.C.S.).This is a similar case but less serious because of the lack of pregnancies. - R. v. Issler (1976) 1976 ALTASCAD 124 , A.J. No. 514 - 5 years for incest with 2 daughters over a period of years - included2 births.

I agree with the Crown that this case should be considered a “cultural artifact”. In my view it should be considered as overturnedby subsequent Court of Appeal decisions noted above. It is inconsistent with the range discussed and affirmed this year. In particular Inote the disturbing comment in that case that the victim daughters were “equally guilty” with the perpetrator of incest (at para. 10).Contrast that with the comment of Martin J.A. in A.C.S. in his conclusion at para. 8, “When a father sexually assaults a child, it (the childbeing at fault) is never so. It is only the father’s fault, never the child’s”.

This comment better reflects, as does the sentence in A.C.S. (8years), the law and our society’s views today. - R. v. A.J.S. (2005) M.J. No. 1 (CA) - 7 years for a brother- in- law regularly assaulting a child starting at 16 years old, and over severalyears, even while living in separate places on a reserve. It resulted in 3 pregnancies and 2 children.

This case is similar except that theaccused was not in a position of trust and the complainant was older. [39] In sum, in my view after reviewing the many cases provided by both sides, the length, frequency and resulting pregnancies areall very important factors that increase the sentencing range from the starting point to the 8 to 10 year level. It is also noteworthy that thisrange includes the consideration of a guilty plea, since all but one case involves a guilty plea (A.J.S. from Manitoba). [40] In this situation, Ms.

C was relatively young when the abuse started (14), she endured and incredible number of assaults(around 1000) and suffered 3 pregnancies over a 3 year period, all from the man she trusted and considered as her only father. Mr. J. F.K. pleaded guilty but he did so late in the day and in face of overwhelming evidence. Ultimately, it is my view that he has some remorseand a moderate statistical chance of re-offending.

He has dangerous underlying personality disorders however that have no doubtcontributed to his lengthy involvement in crime and a guarded prognosis in terms of treatment. [41] As a result, I sentence Mr. J. F. K. to 8 and a half years imprisonment. From that sentence will be deducted the time Mr. J. F.K. has spent in custody after his arrest in 2009 until he was released on bail, and for the period after he pleaded guilty in April of thisyear (including the time while undergoing his assessments) to today.

I understand that the first period referred to was 3 months - forwhich will be deducted 6 months of time from sentence - and the latter time was 6 ½ months for which straight time will be deducted,for a total of 12 and a half months to be deducted from the 8 and a half year sentence as already been served. Counsel are to meet andagree on the exact total days in that regard. [42] In addition, I make the ancillary orders requested and agreed to by the Defence including the provision of Mr. J. F. K.'s DNApursuant to

section 490.012, an order to comply with the Sex Offender Information Registration Act, a weapons prohibition order for 10years after Mr. J. F. K.'s release from prison, and a no contact order with respect to Ms. C

[ 43 ] The Crown also sought a

section 161 prohibition order. Defence indicated a concern about that order since Mr. J. F. K.'s son is under 16 years old and they may want to attend a park swimming pool, daycare, school or community centre together once Mr. J. F. K. is released from custody. On the other hand, Dr. Metelista was not able to rule out pedophilia in Mr. J. F. K.'s case and the assaults in this case started when Ms. C was 14 years old. [ 44 ] Accordingly, with respect to the

section 161 order application, I order that Mr. J. F. K. will be prohibited from attending any of the places listed in subsection (

a) unless he is with his son pursuant to an access order made by a court of competent jurisdiction obtained after his release from custody, and that he shall not obtain employment in any capacity listed in subsection (

b) and he shall not communicate using a computer system with any person under 16 years old pursuant to subsection ©, except with his son pursuant to an access order as discussed. [ 45 ] I recommend that Mr. J. F. K. seek treatment while in custody as suggested by Dr. Metelista and in particular for his sexual behaviour and alcohol dependance. Heard on the 21st day of April, 2011, the 8 th day of September, 2011 and the 21 st day of October, 2011. Dated at the City of Calgary, Alberta this 4 th day of November, 2011. K.M. Eidsvik J.C.Q.B.A. Appearances: Pamela McCluskey for the Crown Norm Kelly Lord Russell for the Accused