R. v. King, 2012 ABQB 273

Court of Queen ’ s Bench of Alberta Citation: R. v. King, 2012 ABQB 273 Date: 20120425 Docket: 100039510Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Vernon Anthony King Accused Restriction on Publication: By Court Order, information that may identify the complainant in this case may not be published, broadcast, or transmitted in any manner.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 Sentence of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] On January 20, 2012, after trial, I convicted Vernon Anthony King of two offences:

a. Sexual touching contrary to s. 151 of the Criminal Code between July 1 and December 1, 2008. b. Invitation to sexual touching contrary to s. 152 of the Criminal Code between July 1 and December 1, 2008. [ 2 ] The facts relating to these offences are set out in detail in my Reasons for Judgment read on January 20: 2012 ABQB 57 . I will very briefly summarize. [ 3 ] When Mr. King was 43 he had a sexual relationship with a 15 year old girl beginning in July 2008 and continuing up to her 16 th birthday on December 1, 2008.

The relationship actually continued until the spring of 2009 but the conduct which constitutes the offences of which Mr. King was convicted all occurred prior to the girl’s 16 th birthday. [ 4 ] During the period in question, Mr. King and the girl had sexual intercourse several times a week. The sexual touching by Mr. King of the girl in the sexual intercourse constituted the offence created by s. 151 . On at least one occasion when the girl was having her period, Mr. King invited her to perform fellatio on him and she did so. This constituted the offence created by s. 152 . [ 5 ] Mr.

King was also charged with offences in relation to his sexual activity with the girl after she turned 16. I found him not guilty of those offences. Mr. King was also charged with sexual assault in respect of the conduct which resulted in his conviction under ss. 151 and 152 . I found him guilty of sexual assault but, on the Crown’s application, entered a conditional stay in application of the Kienapple principle. [ 6 ] Counsel requested that I direct that a Pre-Sentence Report be prepared. I have received and reviewed the resulting report. [ 7 ] The Pre-Sentence Report indicates that Mr. King is now 47 years old.

He was cooperative with the author of the report. He acknowledged his relationship with the girl and that he must take responsibility for and accept the consequences of his actions. [ 8 ] Mr. King was born in Jamaica. He was raised in a small Jamaican community in humble circumstances. He had a happy childhood. There was no alcohol, drugs or violence in his childhood home. Religion was important in his family. His parents were devout members of the Seventh Day Adventist Church. Mr. King remained in his parents’ home until he was about 20 years old. [ 9 ] Mr. King’s brother and sister moved to Canada in 1988.

His brother sponsored Mr. King, his parents and other siblings to immigrate. As his father was in his seventies at the time, Mr. King became responsible for supporting the family. [ 10 ] Mr. King married a fellow Jamaican woman in 1993. They lived in Toronto and had two children now aged 18 and 16. He separated from his wife in 2008. He moved to Edmonton. [ 11 ] He soon met the Complainant. Their relationship became romantic. Mr. King intended to marry the complainant when she was of legal age. The relationship ended when the Complainant’s mother discovered that the relationship was more than just a friendship.

Mr. King advised the author of the Pre-Sentence Report that he still cares for the Complainant. [ 12 ] Mr. King presently lives in Fort McMurray. He is employed and has held his present job since December 2010. He is responsible for concrete pouring and laying tiles. His employer considers him a reliable employee. He contributes to the mortgage on the Toronto house in which his wife lives. He has some debt.

[13] He does not use alcohol or drugs. He continues to be involved in the church but is not a regular attender. He has no criminalrecord. [14] The author of the Pre-Sentence Report concluded that he is a suitable candidate for community supervision though she notedthat he does not express remorse for his offence, and appears to her to lack understanding about the inappropriateness of his relationshipwith the Complainant. Positions of Counsel [15] The Crown submits that a fit sentence would be between 4 and 6 years incarceration. [16] Ms. Green submitted that the fact that the Complainant was a child is, by

section 718.2(a)(ii) of the Criminal Code, anaggravating factor. I believe the submission is founded on a misreading of the section.

Section 718.2(a)(ii) provides that it aggravatesthat the offender, in committing the offence, abused the offender’s child. The Complainant here was not Mr. King’s child. That theComplainant was under 16 is an element of the offences of which Mr. King was convicted, it cannot also be an aggravating factor. [17] Ms. Green further submitted that aggravating features of the circumstances of the offence include the large age differencebetween Mr. Green and the Complainant, that on several occasions the offensive conduct occurred in the Complainant’s home, thatthough it was not proved beyond a reasonable doubt that Mr.

King was in a position of trust toward the Complainant, Mr. King hadaccepted a degree of responsibility toward the Complainant when he offered to take her to church and act as a provider of transport. Ms.Green submitted that a very high level of moral blameworthiness attaches to Mr. King’s criminal conduct. [18] Ms. Green submitted that it does not mitigate that the Complainant was a willing participant in the sexual activity. Neitherdoes it mitigate that the law changed not long before Mr. King’s crime. The age at which consent is a defence was raised from 14 to 16. [19] Ms. Green observed that Mr.

King’s lack of a criminal record and the fact that he provides financial support for his estrangedwife and his children are mitigating factors. [20] Ms. Green referred me to several authorities which I have reviewed. They were: R. v. F. (M.G.), (2010) 2010 ABCA 102, 477 A.R. 244; R. v. S. (J.B.), (2009) 2009 ABCA 347 , 464 A.R. 353; R. v. Deck, (2006) 2006 ABCA 92 ,208 C.C.C. (3d) 341; R. v. Mahoney, 2010 ABCA 340; R. v. Torres, 2012 ABQB 4; R. v. Pritchard, (2005) 2005 ABCA 240 ,371 A.R. 27 (ABCA); and R. v. Revet, 2010 SKCA 71 , [2010] 8 W.W.R. 580 (Sask. C.A.). [21] Mr. Clancy, for Mr. King, noted that Mr.

King has had no prior criminal involvement. He submitted that it is not entirely justto deprive Mr. King of the mitigating benefit of a guilty plea given that he was successful in having some serious charges dismissed. The suggestion is that Mr. King had no choice but to maintain a not guilty plea in order to defend himself in respect of the counts ofwhich he was acquitted. He noted that Mr. King has complied with bail conditions which were imposed pending trial and has been fullycooperative with the court. Finally he noted that there was no Victim Impact Statement from the complainant.

There was nothing in theevidence to justify the conclusion that she was traumatized or otherwise harmed by her relationship with Mr. King. [22] Mr. Clancy referred to R. v. Feng, 2011 ABCA 172 where the Court of Appeal upheld a sentence of 17 months imprisonmentfor a 25 year old accused who had a sexual relationship with a 14 year old girl. The girl had attempted to seduce the accused and,resisting, he told her she was too young. She persisted. The accused went to the library to determine the legal age of consent. At thetime the age of consent was 14.

A month later the law was amended to change to the legal age of consent to 16. The accused was notaware of the change. The couple had sexual relations many times over the course of the ensuing 9 months before the complainant’smother discovered what was going on. The accused’s circumstances were similar to Mr. King's except he was much younger. He hadimmigrated to Canada; he had a good work history; he had no criminal record and he had complied with all his bail conditions. [23] The Crown appealed the trial judge’s determination that a fit sentence was 17 months imprisonment. The Court of Appeal

did not agree that the sentence was unfit because it was too low. Decision [ 24 ] The Court of Appeal has indicated that a trial judge dealing with a case of major sexual assault of a young person to whom the accused was not in a position of trust should use a starting point of 3 years incarceration. Aggravating and mitigating circumstances should then be considered in determining what adjustment is appropriate to the starting point. [ 25 ] In my view, it aggravates Mr. King’s crime that he was 28 years older than the Complainant.

It also aggravates that there were repeated instances of sexual intercourse between them during the four and a half months before the Complainant turned 16. [ 26 ] That Mr. King has no criminal record and appears to be otherwise of good character does not mitigate. These features are assumed in the starting point. [ 27 ] Neither does it mitigate that the Complainant in fact consented to the sexual activity, though her consent was without legal significance. That there is no evidence that she was actually harmed by the activity and that the crime was not violent are relevant to the assessment of Mr.

King’s moral blameworthiness. In my view, there is some mitigating effect to Mr. King’s cooperativeness with authorities. [ 28 ] My assessment of the aggravating and mitigating circumstances is that, considered as a whole, they do not justify any adjustment of the starting point. In my view, a fit sentence is 3 years imprisonment. [ 29 ] I cannot wholly reconcile that conclusion with R v. Feng . Clearly there are features of that case which distinguish it from Mr. King’s case. The Complainant here did not seduce Mr. King or persist in attempts to have Mr. King engage in sexual activity with her.

As I interpret the evidence, sexual relations between Mr. King and the Complainant resulted from his initiative not hers, albeit an initiative that met with no resistence. Further, it is not a feature of Mr. King’s case unlike Mr. Feng’s case, that Mr. King was operating under any error as to the age of consent.

He was aware of the Complainant’s age and there was no evidence whatsoever as to the state of his understanding concerning the age of consent or lack of knowledge that it had recently changed. [ 30 ] However, these distinguishing features do not, in my view, account for as much of a deviation from the starting point as the Court of Appeal approved in Feng . I cannot fully reconcile the result in Feng to the result I believe on the basis of the other authorities and the circumstances before me is appropriate for Mr. King. In my view, the level of Mr.

King’s moral blameworthiness in the circumstances requires that he be sentenced to 3 years imprisonment, R. v. Feng notwithstanding. [ 31 ] Mr. King, I sentence you to 3 years imprisonment on each of the two counts on which I have directed that convictions be entered. The sentences are to be served concurrently. [ 32 ] In addition, I order that you provide a DNA sample. There will also be a SOIRA order for 20 years in respect of Count 2 and for life in respect of Count 3. There will also be a

section 109 firearms prohibition. Heard on the 6 day of March 2012. Dated at the City of Edmonton, Alberta this 24 th day of April, 2012.

Brian R. Burrows J.C.Q.B.A. Appearances: Danielle Green for the Crown Mike Clancy for the Accused