R. v. K.W.K. Date:, 2014 BCPC 166

Citation: R. v. K.W.K. Date: 20140409 2014 BCPC 0166 File No: 200217-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. K. W. K. Ban on Publication s. 486.4(2) CCC Restriction on Access s. 490.012 CCC ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D.R. GARDNER Counsel for the Crown: B. Shaw, Q.C. Counsel for the Defendant: C. Sicotte Place of Hearing: Surrey , B.C.

Date of Hearing: April 9, 2014 Date of Judgment: April 9, 2014 [ 1 ] THE COURT : K.W.K. has pled guilty to sexual assault of two six-year-old girls, specifically his daughter S. and his niece N., during the time period between January of 2004 and June of 2008. The Crown has proceeded summarily; the maximum sentence is 18 months. [ 2 ] The facts of this case came to light when his daughter, in December of 2012, disclosed what had happened to her to a school counsellor. An investigation followed. The assaults occurred during weekend visits while S. was with her father.

They were often joined by N., the accused's niece, during those visits. S., who was born in 1999, told police her father had been drinking and taking drugs during these visits, and initially she did not want her mother to be upset. These events occurred twice in a bedroom, and I am told he would lay beside her and touch her with his private parts. She knew it was wrong but she suppressed it for several years. She apparently was too embarrassed to talk about it, which is understandable. [ 3 ] During these events he was half-dressed, wearing nothing below his waist.

The girls would ask for popsicles and his response would be, "If you let me bounce on you first." S. was fully clothed at the time. She knows that it happened more than once but cannot say exactly how often. She did say he used his penis, he did not have his pants or underwear on, and he, her words, "peed on her," and the contact involved skin on skin although there was no penetration. S. says it was wet on her bottom after he had touched her. After the events she would bury her face in a pillow.

She felt him rubbing her bottom "like he was doing push-ups." He would clean the area afterwards with toilet paper. [ 4 ] N., who was also six at the time that these events occurred, remembered some odd things happening between herself and her uncle. She would sit on his lap and he would give her a popsicle. This would occur at her house. He had told her prior to these events to wait until everyone was asleep and she would take her pants off and he would give her a popsicle. He was wearing no pants and she remembers his penis as being hard. She felt his penis between her legs.

She says this happened at her home twice. [ 5 ] The Crown's position is the court should give strong consideration to a period of incarceration. They acknowledge they proceeded summarily, but they point to the obviously aggravating factors such as the age of the victims, the number of incidents, the fact that he ejaculated, and that he had used some form of bribery by using the popsicles, and as the Crown has submitted, his actions fell just short of intercourse.

Also an aggravating feature pointed out by the Crown is that the accused employed some guile into coercing these girls into these events. [ 6 ] The Crown acknowledges that the guilty plea is a mitigating factor and has accepted that he has expressed remorse. [ 7 ] The defence has asked the court to consider a conditional sentence, saying that the principles of sentencing could be properly addressed by not incarcerating the accused but allowing him to serve his sentence in the community under some form of house arrest with numerous restrictions on his liberty, numerous conditions, and counselling. [ 8 ] The court has been referred to a number of cases somewhat similar in nature where conditional sentences have been imposed for this type of offence, but my reading of the cases that have been referred to, the facts, in my view, are not as aggravating as they are in the case at bar. [ 9 ] The court has had the benefit of a very helpful pre-sentence report and psychiatric report.

The pre-sentence report highlights the accused having a turbulent childhood. He was sexually abused himself by his biological father for a few years, starting at the age of five, and I am told his father was also sexually abusing his other children and served seven years in jail for the assaults. His father died approximately 15 years ago. The accused has had minimal contact with his four siblings and his mother for over 30 years. I should point out that she passed away two years ago. [ 10 ] The accused was married in 1998. They have two daughters.

They were married for approximately five years and divorced in 2007. He is presently fully employed as a shipper/receiver for (employer name removed for publication). He has been working for the company for the past four years, and I am told for the bulk of his life he worked on and off in the construction field and worked as a security guard for a few years in between. He is presently earning $20 an hour, although he did reveal to the probation officer that he declared bankruptcy approximately a year-and-a-half ago and is still in the process of paying it off. He owes approximately $60,000 in taxes.

He also told the probation officer he was in bad financial shape around the time of the offence. He was also suffering from depression at the time of the offence and was almost suicidal. [ 11 ] Under the heading of "Attitude and Understanding Regarding the Offence," the accused, when discussing his behaviour, believes he may have ruined both victims' trust in adult men. He claims to know he did something wrong and believes his behaviour will have a negative effect on both victims, though he had difficulty describing what type of effect it may have.

He shared that he will always be ashamed and will never be able to forgive himself for what he has done. He stresses he felt guilty during and after the offences, and feels relieved he was arrested so he no longer has to live a lie or with the secret. [ 12 ] He did deny having any sexual interest in young females, however, did admit there was a curiosity after he initially felt his niece's skin brush against him. He reflected on why he may have offended sexually. He conveyed that perhaps he was trying to self- destruct, stating he had no self-worth at the time.

He was not in a relationship; he was feeling lonely and was sexually aroused. [ 13 ] The psychiatric report also states that the accused, at the time of these events, was depressed to the point of suicide, and he had many problems in his life. He did not feel like a valuable person, had no goals or self-worth, and he admitted being on a path of self- destruction so he might as well go all the way. He also disclosed being about 13 or 14 years of age when he moved away from home. Earlier he had been placed in a foster home by his mother who was unable to attend to his needs.

[ 14 ] When asked by the therapist about these offences he claimed he does not think that his offences had a sexual nature to them; however, when it was proposed to him as a possibility he admitted that the experience of the sexual contact and arousal was powerful enough to override reason, and he kept re-offending despite knowing that it was wrong. K.W.K. is not aversive to considering possibilities in being challenged, but does have difficulties in admitting that he had sexual desires for his victims.

He went on to say that he felt guilty after the offence, and as a result he indicated that he had stopped seeing the kids altogether.

He indicates that he had initiated the separation from them so that he would stop offending. [ 15 ] I have, of course, read both of the victim impact statements, and understandably they have been traumatized by these events. [ 16 ] The defence has submitted that the imposition of a conditional sentence would properly address the principles of sentencing, and particularly the rehabilitation of the accused, but also would address denunciation and deterrence by the imposition of such a sentence. [ 17 ] In considering whether or not a conditional sentence, that is, allowing him to serve the sentence in the community, is appropriate, I do not think in this case it would be appropriate because to do so would be inconsistent with the fundamental purpose and principles of sentencing as set out in s. 718 and s. 718.2 of the Criminal Code .

In simplest terms, the conditional sentence would not properly reflect society's revulsion for this type of behaviour. [ 18 ] In sentencing K.W.K., the court must consider a number of principles as set out in s. 718 of the Code.

In this case, the court must consider the rehabilitation of the accused, but I agree with the Crown that the sentence should place an emphasis on deterrence and denunciation, and a conditional sentence, in my view, would not properly address those principles. [ 19 ] Parents should create a safe and loving environment for their children, but in committing these offences the accused has betrayed that trust. He has robbed these two girls of their innocence. Regrettably, their first exposure to intimacy was utterly distasteful, and as they grew older they came to realize just how terribly they had been victimized.

I am told that he himself was victimized as a child, also by his own father, but I have a simple, rhetorical question to ask the accused: When you were being sexually abused, how did you like it? Secondly, I also understand that you are ashamed of your actions.

I have a second rhetorical question to ask the accused: How could you not be ashamed of sexually violating two six-year-old girls? [ 20 ] Having considered the facts of this case, the victim impact statements, the pre-sentence report, the psychiatric report, the relevant case law, the principles of sentencing as set out in s. 718, and the submissions of counsel, I have concluded that a fit and proper sentence in this case would be 18 months' incarceration to be followed by 18 months' probation, the terms of which are you are to keep the peace and be of good behaviour.

You are to report within 72 hours of your release from custody to a probation officer here in Surrey and thereafter as and when directed.

You shall provide a residential address to your probation officer and not change that address without the prior written approval of your probation officer. [ 21 ] You shall attend for, participate in and successfully complete such counselling as directed by your probation officer. [ 22 ] Also, I direct that you register with the Sex Offender Registry pursuant to s. 490.013(2)(c), for life. [ 23 ] Moreover, I prohibit you from owning weapons or other items set out in s. 110 of the Criminal Code for a period of ten years. [ 24 ] I am also directing that you provide a sample of your DNA. (REASONS FOR SENTENCE CONCLUDED)