R. v. Zuvun Date:, 2012 BCPC 523

Citation: R. v. Zuvun Date: 20120924 2012 BCPC 0523 File No: 189138-4C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KITI ZUVUN BAN ON PUBLICATION s. 486.4(2) CCC RESTRICTION ON ACCESS s. 490.012 CCC REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K. W. BALL Counsel for the Crown: J. Gahunia

Counsel for the Defendant: P. Cote Place of Hearing: Surrey, B.C. Date of Hearing: September 24, 2012 Date of Judgment: September 24, 2012 [1] THE COURT: These are oral reasons for sentence in the case of R. v. Kiti Zuvun, court file number 189138-4C. [2] Originally, after the trial of this matter, Mr. Zuvun was convicted on both counts before the court and the parties were invitedto address the court and consider the issues related to R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729.

That considerationoccurred and this morning it was agreed that because of the provisions of Kienapple, Count 1 would be subject to a judicial stay andCount 2 would proceed. I made that order. [3] Count 2 is a charge under s. 151 of the Criminal Code. The trial of the action involved the complainant as well as othermembers of her family being called as witnesses for the Crown and, surprisingly, for the defence as it turned out.

I am going to readsome of the factual background from my decision on conviction as it is important to set out the circumstance that gave rise to the sexualinterference which is referred to in s. 151 of the Code. I do this because in counsel's submissions, Mr. Cote spoke of something that took30 seconds, and that event was a very brief part of what occurred here. [4] The circumstances at the time, to place the matter in context, were that several days before the incident, to which I will refer,the parents of the complainant left to take

part in graduation ceremonies for one of their elder children in a university in Alberta. Theyhad driven to that location. The complainant, her brother and sister as well as the accused, remained in the family home. Now I amgoing to read from findings of fact which I made when I last gave reasons. Paragraph 13: In the evening of June 12th, 2011 C.J. was watching television on the main floor in the living room and A.J. had left the house in thecompany of friends. The accused, according to the statement given by M.J. on June 13th, 2011 was in the kitchen in the home with M.J.

He said she was "so beautiful" and he wanted to talk to her. She said okay to the request and walked out of the kitchen and headed up thestairs to the upper floor of the home. The accused followed her to the upper floor. He followed her into her mother's bedroom where shesat down on the bed. She was then attired in a tank top and pyjama bottoms. The accused again told M.J. she was so beautiful andbegan to kiss her. The questions asked by Cst. Moore when she conducted the s. 715.1 interview of M.J. on June the 12th, 2011 wereopen-ended throughout the interview.

For instance, at page 9, line 15 the following appears, "So tell me what happened after that?" There followed a description of the accused kissing with his lips the hands, cheek, stomach and private areas of the body of M.J. Theaccused first asked if he could kiss one of the hands of M.J. and she thought this behaviour may have been part of his religion. He saidhe wanted to kiss the other hand, and grabbed it and kissed the other hand with his lips. He then pointed to her cheek and asked if hecould kiss her on her cheek. M.J. said sure, and he kissed her on the cheek.

At page 11, line 9 M.J. said, "And then he just startedkissing my stomach and stuff." Question, "Tell me about him kissing your stomach." M.J., "He lifted my shirt and started kissing mystomach." Question, "So he lifted up your shirt and started kissing your stomach?" Answer, "Yeah." "And where were you?" "On thebed." Question, "Were you still on the bed? Okay.

And where was he?" "On the ground still." "Okay." Question, "And after he liftedup your shirt and kissed your stomach what happened then?" Answer, "He started kissing my private area." Question, "Can you tell meabout him kissing your private area?" "Um, he kissed my private area and I was trying to pull him off and he just like holded me thereand kissed it for 30 seconds." "So he was kissing your private area and you tried to push him off?" M.J., "Yeah." Question, "Then whathappened?" M.J., "He started kissing my chest." Question, "Okay.

So when you say he started kissing your private areas, what part ofyour body are you talking about?" "My privates." "Okay, and the reason I'm asking is because one of my jobs is to talk to lots and lotsof kids about lots and lots of stuff, and everybody has different names for parts of their bodies.

So I just need to be really sure." M.J.,"Uh-huh." Question, "And I know it is probably uncomfortable, but I can tell you that nothing you can say is going to embarrass me." M.J., "Okay, the vagina part." "So he was kissing your vagina?" M.J., "Yeah." Paragraph 16: M.J. clearly and correctly identified the name and the function of the vagina "how you make a baby". M.J. then said he held his lips onher vagina for about 30 seconds while she was struggling to push the accused off of her but he just held her there. The accused thenkissed her chest and suggested that she lay down on the bed.

She told him she was uncomfortable laying on the bed, and he pushed herinto a prone position. He said he wanted to give her a massage. She then tried to kick him and got away and went downstairs. Those facts as I found at the trial reveal an aspect of violence perpetrated by Mr. Zuvun against M.J. [5] In one of the cases noted by Mr. Cote, the case of R. v. Lonegren (2009), B.C.J. 243, Mr. Justice Barrow in discussing the casethat was before him as a case that involved no aspect of violence.

That is not the case that is before me. [6] I have found of some assistance the decision of my sister, the Honourable Judge Lytwyn of this court, in the case of R. v.Balducci, [2009] B.C.J. No. 2376. In that case the accused had been involved with two young victims, but as is pointed out by HerHonour in neither case was touching involved. If I can use the terminology, it was more the accused performing public masturbation inand around these young women. In that case, a sentence of six months was imposed.

The accused in that case acknowledged hisresponsibility by making a full confession and by entering a guilty plea. I am using the language of Her Honour Judge Lytwyn, "sparingthe victims and their families from having to testify." That obviously is not the case in the matter which is presently before the court. My recollection is that M.J. was called as a witness and two other members of the family were in fact called by the defence in this case. Quoting again from Her Honour Judge Lytwyn: The purpose and principles of sentence are set out in s. 718, 718.1 and 718.2 of the Criminal Code.

The fundamental principle is thatsentences should contribute to respect for law through the imposition of just sanctions. The objectives of sentencing of most concern in

cases of sexual assault . . . And the same in my view applies in cases of sexual interference. . . . are denunciation, general deterrence and the promotion of responsibility in offenders. Her Honour quotes the well-known case of R. v. Chaput, [1996] B.C.J. No. 2661 and reiterates the oft-used phraseology that sexualabuse of children normally demands a sentence of imprisonment. Sentencing is, as always, an individual process. The sentence must befashioned for each accused in each set of circumstances. The well-known case of R. v.

C.A.M., (SCC), [1996] 1S.C.R. at page 500 is authority for that proposition. [7] Here I must impose a sentence that will denounce and deter others but that is proportionate to the circumstances of this offenceand this offender. I cannot in the sentencing process undo what is done or correct the harm that has been done to the victims in this case,which harm has been eloquently set out in the Victim Impact Statement filed as Exhibit 3 and read by Mr. J. earlier today. [8] I have reviewed all of the cases which have been cited. I note that a number of them refer to cases where guilty pleas wereentered.

That mitigating circumstance did not occur in the case before me. This was a case where Mr. Zuvun took advantage of afamily's trust and breached that trust by his conduct with M.J. This is, in my view based on the facts as I found them, a more serious casethan any that I have read today. I am satisfied having reviewed the Presentence Report, the psychiatric report, the victim impactstatement, the submissions of counsel as well as the cases cited in those submissions, that the appropriate sentence here is a sentence of12 months incarceration. That will be followed by a period of two years of probation.

I have already signed the SOIRA order. [9] I will now review the terms of the probation order.

Keep the peace and be of good behaviour; appear before the court whenrequired to do so by the court; report within 48 hours of your release from custody to the probation officer at 100-13545-64th Avenue inSurrey and thereafter as and when directed. [10] You will reside where directed by the probation officer and not change that residence without the prior written permission of theprobation officer. [11] You are required to present yourself at the front door of your residence and to allow access to your residence as and whenrequested by the probation officer or any person acting on behalf of the B.C.

Corrections Branch. [12] You are not to have contact or communication either directly or indirectly with M.J. or with any member of her immediatefamily.

When I refer to communication, that will include any digital or electronic communication. [13] You are not to attend within 200 metres of any place known to you to be the residence, place of employment or place of schoolof M.J., or of any member of her immediate family. [14] You must attend, participate and successfully complete such individual and/or group counselling and maintenance programs forsexual offenders as directed by and to the satisfaction of the probation officer, including but not limited to participation in penileplethysmograph testing, participation in the Sexual Offender Treatment Program, continued interaction with Dr.

Ploesser and Mr.Melhus of the Surrey Forensic Clinic, individual treatment sessions with an experienced mental health professional, and participation ingroup Dialectical Behavioural Therapy as may be offered through Surrey Mental Health. [15] You are not to attend any public park, public swimming area or other facility such as a community centre where persons underthe age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or communitycentre. [16] There will be an order under s. 161(a), (

b) and (

c) of the Criminal Code you must attend, participate and complete suchpsychiatric and/or psychological assessments as directed by your probation officer. [17] You will take reasonable steps to maintain yourself in such a condition that your mental health will not likely cause you toconduct yourself in a manner dangerous to yourself or anyone else and it is not likely you will commit further offences. [18] At the direction of your probation officer you will attend at the Forensic Psychiatric Services Outpatient Clinic or another suchfacility for the purposes of receiving such medical counselling and treatment as may be recommended, except that you shall not berequired to submit to any treatment or medication to which you do not consent.

If you do not consent to the form of medical treatment ormedication which is prescribed or recommended, you shall forthwith report to your probation officer and thereafter report daily to yourprobation officer. [19] You shall provide your treating physician with a copy of this order and the name, address and telephone number of yourprobation officer and you shall instruct your treating physician that if you fail to take any medication as prescribed by him or her or fail tokeep any appointment made with him or her, he or she is to advise your probation officer immediately of any such failures. [20] You are not to be found alone with any child or children under the age of 18 years of age.

You will remain within the Provinceof British Columbia unless written permission to leave the Province of British Columbia is provided by your probation officer. [21] There will be an order that while in custody, pursuant to s. 487.051(1) I authorize the taking from you for the purposes offorensic DNA analysis a number of samples of one or more bodily substances that is reasonably required for that purpose by means ofinvestigative procedures outlined in s. 487.06(1). [22] Counsel did not make any submission on behalf of Mr.

Zuvun and has not shown on the balance of probabilities that the impactof the order on his privacy and security of the person would be grossly disproportionate to the public interest and the protection ofsociety and the proper administration of justice.

[ 23 ] I make an order pursuant to s. 110 of the Criminal Code where I hereby prohibit Kiti Zuvun from possessing any firearm, crossbow, prohibited weapon, restricted weapon, imitation weapon, prohibited device, ammunition, prohibited ammunition, explosive substances and all such things and any related authorizations, licences and registration certificates for the purpose of ten years. [ 24 ] There will also be a standalone order under s. 161 (a), (

b) and (

c) for a period of five years. (REASONS FOR SENTENCE CONCLUDED)