R. v. K.W., 2018 BCPC 299

Citation: R. v. K.W. 2018 BCPC 299 Date: 20181019 File No: 221083-1 Registry: Surrey File No: 87143-1K Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. K.W. ORAL REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE R. HAMILTON BAN ON PUBLICATION s. 486.4(1) CCC s. 486.4(2) CCC Counsel for the Crown: C. Pike Counsel for the Accused: D. Melville Place of Hearing: Surrey , B.C. Date of Hearing: October 4, 2018 Date of Sentence: October 19, 2018

INTRODUCTION [ 1 ] K.W. (“Mr. W.”) has entered guilty pleas to two counts of sexual interference against two female children. [ 2 ] N.D. was 15 years old when she met Mr. W. in November of 2016. He was 25 years old at that time. Their sexual relationship lasted two months. Mr. W. had unprotected sexual intercourse with N.D. on multiple occasions. He ejaculated inside of her against her wishes. N.D. became pregnant and gave birth to a healthy baby girl on [omitted for publication]. That child has been placed for adoption. [ 3 ] M.B. was 14 years old when she met Mr. W. in June of 2015.

He was 23 years old at that time. Mr. W. continued his sexual relationship with M.B. for two years, until July 2017. This relationship involved repeated acts of sexual intercourse. [ 4 ] Following his arrest on January 24, 2017 for his crimes against N.D., Mr. W. was subject to bail conditions that prohibited him from having contact with anyone under 16 years old. In breach of his bail conditions, Mr. W. continued his intimate sexual relationship with M.B., a child he knew to be under 16 years old. [ 5 ] On October 4, 2018, I heard submissions from counsel with respect to a fit sentence to be imposed on Mr.

W. following his guilty pleas. These are my reasons for imposing what I have determined is a fit sentence for Mr. W.’s crimes against N.D. and M.B. MATERIALS BEFORE THE COURT [ 6 ] On this sentencing hearing I have had the benefit of the following materials to review: 1. An Agreed Statement of Facts filed as Exhibit 1; 2. A Pre-Sentence Report filed as Exhibit 5; 3. A Psychiatric Assessment filed as Exhibit 6; 4. A victim impact statement from N.D. filed as Exhibit 2; 5. A victim impact statement from J.D., N.D.'s mother, filed as Exhibit 3; 6. A victim impact statement from M.B. filed as Exhibit 4; 7.

A letter addressed to the court from Mr. W.’s grandparents, G. and B.B. (phonetic); and 8. Sentencing authorities filed by the Crown and Mr. W. in support of their respective sentencing positions in this case. BACKGROUND [ 7 ] Most, if not all, of what follows comes from the Agreed Statement of Facts and the Pre-Sentence Report and Psychiatric Report. [ 8 ] Mr. W. is 27 years old. He was born on [omitted for publication]. He did not have a healthy relationship with his parents. He experienced abuse and neglect at the hands of his mother. At an early age, his grandparents provided care for Mr.

W., although he bounced back and forth between his mother's home and his grandparents' home. Mr. W. had no significant relationship with his father, R.W. His father committed suicide when Mr. W. was eight. His father's death significantly impacted Mr. W. [ 9 ] When Mr. W. was 12 years old, his mother married an American citizen and Mr. W. relocated with his mother to Bellingham, Washington. When Mr. W. was 13 years old he got into a physical altercation with his mother that led to Mr. W. fleeing the family home. From age 13 to 19, Mr.

W. was homeless and living on the streets in Washington State, but he continued to attend high school. Remarkably, he remained a law-abiding citizen despite extraordinarily trying circumstances in his life. [ 10 ] Shortly before he turned 19 years old, Mr. W. returned to Canada and moved back to live with his grandparents. Prior to his incarceration on these charges, Mr. W. was living with his grandparents near Princeton, British Columbia. [ 11 ] Mr. W. has not spoken with his mother in six years due to their unhealthy relationship. [ 12 ] His relationship with his grandparents remains strong.

Both grandparents sat in court during these proceedings in a show of support for Mr. W. As I have indicated, they wrote a letter to the court stating their strong support for Mr. W., and stating that Mr. W. is welcome to resume living with them when he is released from custody. THE OFFENCES A. M.B. [ 13 ] In June 2015, M.B. turned 14 years old. At that time, Mr. W. was 23 years old. He turned 24 in [month omitted for publication] of 2015. [ 14 ] In July of 2015, so when M.B. was 14 and Mr. W. was 23, the two met over an online application called Whisper. I know

nothing about Whisper. I infer that it is some form of social media or some other way for people to connect online. [ 15 ] When they met through Whisper, M.B. told Mr. W. she was 18 years old, but within four months of their relationship M.B. told Mr. W. that she was only 14 years old. [ 16 ] M.B. and Mr. W. met in person not long after they met online and they began a sexual relationship. The relationship continued for two years, ending in July 2017. Over the course of their two-year relationship they had sexual intercourse on numerous occasions. [ 17 ] As I have indicated, following Mr.

W.’s release on bail in January 2017 with respect to the charges concerning N.D., Mr. W.’s ongoing relationship with M.B. was in violation of one of the terms of his bail. Some of their sexual liaisons occurred at Mr. W.’s grandparents' trailer in Langley. [ 18 ] A feature of the relationship between Mr. W. and M.B. was Mr. W.’s need to control M.B. At one point, M.B. ended their relationship but then sought to restore their relationship. According to the Agreed Statement of Facts, Mr. W. told M.B. that he would only resume the relationship if M.B. was obedient and was his slave.

M.B. was not allowed to say no to Mr. W. This control that Mr. W. insisted he have in his relationship with M.B. was also a feature of Mr. W.’s sexual relationship with N.D. [ 19 ] It is my view that an adult insisting on this level of control in a sexual relationship with a child is a significantly aggravating factor on sentencing. I will return to this issue later in this decision. B. N.D. [ 20 ] N.D. met Mr. W. through the same online application Whisper. N.D., at first, told Mr. W. she was 16 years old but one day later she told him she was only 15 years old. [ 21 ] On December 8, 2016, N.D. and Mr.

W. had sexual intercourse for the first time and on January 15, 2017, they had intercourse for the last time. Mr. W. ejaculated inside N.D. against her wishes. [ 22 ] Mr. W. was dominant during their intimacy which included slapping N.D. and, on occasion, choking N.D. Mr. W. stopped choking N.D. when she asked. Mr. W. called N.D. his slave and demanded she do what he told her to do. Mr. W. ordered N.D. to delete her social media applications so he could be sure she was not communicating with anyone else.

Some examples of his overbearing and possessive text messages have been placed before the court, they are disturbing. [ 23 ] N.D. became pregnant and carried the child to term. After giving birth to her daughter, N.D. placed the child for adoption. [ 24 ] Mr. W. was arrested for his sexual interference of N.D. on January 24, 2017. He was released on bail with a condition to have no contact with anyone under 16 years of age. In violation of that condition, Mr. W. maintained his relationship with M.B. He was arrested for his crimes against M.B. in October 2017 and he has remained incarcerated since then.

POSITION OF THE PARTIES [ 25 ] Mr. Pike, for the Crown, seeks a jail sentence of between five to seven years, which would then be reduced by 18 months due to Mr. W.’s enhanced credit for his 12 months of pre-sentence detention. The Crown also seeks a number of ancillary orders. [ 26 ] Mr. W., through his counsel, seeks a three-year jail sentence which would leave him with 18 months left to serve after applying his pre-sentence detention credit. Mr. W. also proposes a lengthy period of probation in order to enhance his rehabilitation. MITIGATING FACTORS 1) No Criminal Record [ 27 ] Mr.

W. is before the court convicted of a crime for the first time. The fact that he has no record is remarkable given the nearly six years he was homeless and living on the streets in Washington State as a teenager. 2) Guilty Pleas [ 28 ] By pleading guilty to the two counts of sexual interference, Mr. W. spared N.D. and M.B. the trauma of having to testify in open court and tell a complete stranger, me, about the highly personal details of their relationships with Mr. W. His ultimate sentence should be mitigated for that reason. 3) Family Support [ 29 ] Mr. W. has strong family support from his grandparents.

His grandparents crafted a letter articulating their support for Mr. W. and indicating that he is welcome to return to live with them once he is released from prison. AGGRAVATING FACTORS [ 30 ] Pursuant to s. 718.2 of the Criminal Code , the fact that Mr. W.’s offences involved children under 18 years of age is a statutorily mandated aggravating factor. His offences against M.B. began when she was only 14 years old. In fact, she just turned 14 in [month omitted for publication] 2015 and the relationship began in July 2015.

The cases I have read in preparing this decision and, indeed other decisions, make the point loud and clear, adults who sexually offend against children, especially when the offending includes sexual intercourse, need to be sent to jail for a substantial period of time. [ 31 ] These offences were not spur-of-the moment choices. There was a connection made between both girls and Mr. W. through the online application Whisper. What is clear is that Mr. W. knew he was having a sexual relationship with a child and he did not end the

relationship. Indeed, his relationship with M.B. continued for well over a year, approaching two years, after he learned she was only 14 years old. I view both of these relationships as more predatory than not. In fact, for two months, between November 2016 and January 2017, Mr. W. was involved in a sexual relationship with both girls. He met N.D. through the same online application, learned her age and pursued a relationship with her. Again, I view this activity as more predatory in nature. [ 32 ] The Alberta Court of Appeal made clear in R. v.

Hajar that sexual interference that involves sexual intercourse amounts, at law, to a major sexual offence. The majority, and this was a five-judge panel, said this at paragraph 115: The same holds true for major sexual interference. The offence itself involves the sexual abuse of a child. We have already explained why a child’s de facto consent is not by itself a mitigating factor in sentence. Violence is inherent in major sexual interference since it involves an adult’s serious violation of a child’s sexual integrity, human dignity and privacy even in cases of ostensible consent.

Major sexual interference is inherently harmful – and inherently exploitative. Not only is a child in the protected category incapable of consenting to sexual acts with adults, a child is less able, because of their age, to resist the actions of an offender either physically or emotionally. Thus, given the gravity of the offence and the mens rea degree of responsibility of the offender, a three-year starting point for major sexual interference is entirely reasonable irrespective of the child’s ostensible consent. The act itself triggers the starting point.

I agree with and adopt that statement for the purpose of this sentencing decision. [ 33 ] I note that Mr. W. argues there was no gratuitous violence in his offending. I will return to the issue of gratuitous violence shortly but, for current purposes, I disagree with Mr. W. His relationship with N.D. involved gratuitous violence. [ 34 ] The court in Hajar also listed the following features of this crime that are aggravating circumstances: 1) Multiple Acts [ 35 ] Mr. W. engaged in multiple acts of sexual intercourse.

During the two months he was offending against N.D., he engaged in multiple acts of sexual intercourse with her on eight separate occasions. He offended against M.B. for nearly two years. 2) Psychological or Emotional Harm from the Offence [ 36 ] As I noted earlier, Mr. W. was overbearing, dominant and in some ways threatening towards both girls. With respect to N.D., he told her to screenshot her phone so he could see she had no applications on her phone that would allow her to communicate with others. He told her she was his slave and she had no say in what he did to her.

He told her she did not get to be unhappy or make conditions. He told her, "If you say no, we are done." Consistent with the theme of those messages, Mr. W. would ejaculate inside N.D. against her wishes. I view that act as

an act of violence towards this child victim. [ 37 ] At the tail end of his offending against M.B., she ended their relationship, but then sought to get back into a relationship with Mr. W. In response, Mr. W. told M.B. that he would only take her back if she was obedient and his slave. She was not allowed to say no to him. [ 38 ] Both M.B. and N.D. filed victim impact statements. What is clear from those statements is that Mr. W.’s crimes exacted a substantial emotional and psychological toll on the children.

They both continue to suffer from the emotional and psychological damage he caused them. 3) Additional Degradation of the Child [ 39 ] I have covered this with reference to Mr. W. ejaculating inside N.D. against her wishes. 4) Pregnancy as a Consequence of the Offence [ 40 ] N.D. became pregnant and placed her child for adoption. [ 41 ] As I earlier noted, once Mr. W. was placed on bail following his arrest for his crimes against N.D., he continued his relationship with M.B. in violation of a significant term of his bail. The bail condition was vital to protect children from Mr.

W. and he flagrantly disobeyed that bail term. That, in my view, is a significant aggravating factor. [ 42 ] Mr. W. was assessed by Dr. Farstad, a psychiatrist with the Forensic Psychiatric Services Commission to be a moderate risk to reoffend sexually. Built into that risk assessment, I believe, is Mr. W.’s statement that he is willing to engage in treatment for his sexual offending but he is not certain it will help. That led Dr. Farstad to conclude that Mr. W. is ambivalent about future treatment. ANALYSIS [ 43 ] As noted above, Mr.

W. comes before the court as a young man with no record and very supportive grandparents. He had a significantly troubled childhood and throughout his teenage years. He fended for himself living on the street for six years. He suffers from mental health challenges that have led him to attempt suicide on a number of occasions. [ 44 ] Despite all of that, I find that his moral culpability for these crimes is very high. He connected with M.B. and N.D. over the Internet; he learned their ages and pursued the relationships anyways. He chose to engage in unprotected sexual intercourse with these children.

He was dominant and abusive in the relationships. He insisted on an overbearing power imbalance in his relationship with N.D. These crimes constitute major sexual offences against the children and deserve a severe punishment. CASES [ 45 ] I have already mentioned the Alberta Court of Appeal's decision in Hajar. In that case, Mr. Hajar was 20 years old and he met the 14-year-old complainant on the Internet. Mr. Hajar knew his victim was 14 years old. The two met four times in total. During their

first three meetings the only sexual activity was kissing. On their fourth meeting, Mr. Hajar convinced his victim to perform oral sex on him. He ejaculated on her. A witness called the police and Mr. Hajar was found in the back seat of a car with the complainant. He admitted that the sex act occurred and that he knew his victim was 14. The sentencing judge imposed an 18-month jail sentence and the Crown appealed. [ 46 ] In a lengthy decision of three of the five judges, the court extensively reviews the law of sexual interference.

The court ultimately concluded that the starting point for sentencing an accused in a major sexual interference crime is three years in jail, assuming no prior criminal record, no gratuitous violence and no guilty plea. The court concluded that a fit sentence for Mr. Hajar's crime, which included Internet luring, was three-and-a-half years but the court declined to impose that sentence due to the lengthy process delay of more than one-and-a-half years that it took to resolve the case. The Crown appeal was dismissed. [ 47 ] I found the reasoning of the majority decision to be persuasive and compelling.

At points within the decision the court says this, first at paragraph 11: There is a strong analogy between major sexual assault and major sexual interference. A similar starting point is therefore warranted. We confirm a starting point of three years imprisonment for major sexual interference where the offender is an adult, that is, at least 18 years of age. This starting point applies to all cases of major sexual interference including those involving the child’s de facto consent.

At paragraph 53: Sexual interference constitutes a major sexual interference where the sexual interference is a serious violation of the physical and sexual integrity of the child and is of a nature or character such that a reasonable person could foresee that it is likely to cause serious psychological or emotional harm, whether or not physical injury occurs. Vaginal intercourse, anal intercourse, fellatio and cunnilingus all fall into this category.

Paragraph 62: We reject the idea that the harm done to children by the crime of sexual interference is variable to the vanishing point where the child has given “ de facto consent” to the sexual activity. Parliament has determined that sexual activity between a child under 16 and an adult (and others not within the close-in-age exception) is inherently harmful – and therefore prohibited in all circumstances. This applies with equal force to both sexual interference and sexual assault.

For child victims of both major sexual interference and major sexual assault, that harm includes a serious violation of the victim’s body and sexual integrity and a breach of their human dignity and privacy. And arguably more. Indeed, many victims of child sexual abuse have something very important stolen from them – their childhood. And lastly at paragraph 81: For the reasons noted, this Court confirms a starting point of three years imprisonment for major sexual interference. As explained below, this starting point is premised on there being no gratuitous violence.

If the sexual acts involve overcoming resistance, threats, intimidation or other similar acts of gratuitous violence, these will be aggravating factors. The starting point also assumes no prior record. Finally, the three-year starting point is not based on a guilty plea. That would be a mitigating factor reducing sentence. [ 48 ] Keeping this last quoted paragraph in mind, I find that in the relationship with N.D. there was gratuitous violence including slapping, choking and Mr. W. ejaculating inside of N.D. against her wishes. I find that Mr. W. engaged in threats and intimidation with N.D. As noted, Mr.

W. has no criminal record and he entered guilty pleas. [ 49 ] In my view, given the persuasive and robust analysis in Hajar , the starting point in determining a fit sentence for Mr. W. is three years for his crimes against each of M.B. and N.D. [ 50 ] The Manitoba Court of Appeal in R. v. Norton increased the sentence imposed in the trial court from 15 months to three years. Mr. Norton, on one occasion, had sexual intercourse with the complainant who was between 14 and 16 years old. Mr. Norton was 20 years old and the sexual offence included having the child perform oral sex on another male while Mr.

Norton had sexual intercourse with his victim. Mr. Norton entered a guilty plea. [ 51 ] In R. v. Aimee , Madam Justice Fisher, then sitting in our Supreme Court, imposed a four-year sentence on the 29-year-old accused following a conviction by a jury. Mr. Aimee had two victims. With one victim he had one sexual encounter; with the other victim he had four sexual encounters. The victims were 16 and 14 years old.

Justice Fisher imposed a four-year sentence through a combination of concurrent and consecutive sentences for Internet luring, three years for sexual inference and 12 months consecutive for obstruction of justice. With credit for 31 months of pre-sentence detention, Mr. Aimee had 17 months left to serve followed by three years of probation. [ 52 ] In R. v. Jaden , Madam Justice DeWitt-Van Oosten imposed a three-year jail sentence on a 53-year-old man after he pled guilty to one count of sexual assault against a 15 year old girl. Mr. Jaden had no criminal record.

The sex crime involved one instance of sexual intercourse including ejaculation. The victim did not consent to the sexual contact but if she had her consent would not have been lawful given her age. Mr. Jaden had no criminal record, he had performed well on bail and he had support in the community and from his family. Justice DeWitt-Van Oosten concluded that the range of sentence in the case before her was two to six years in jail. [ 53 ] In R. v. Yanulik , Mr. Justice Davies of our Supreme Court imposed a four-year jail sentence on Mr. Yanulik who was 54 years old. His victim was 13 years old.

The crime involved many different sex acts during one incident between them. The victim was introduced to Mr. Yanulik by the victim's foster sister. The sex acts were videotaped. The victim did not consent but that is irrelevant. She complained of pain during the crime. As I said, Justice Davies imposed a four-year jail sentence and that followed his conviction after a jury trial. [ 54 ] Finally, in R. v. B.S.B. , Mr. Justice Romilly sentenced the offender to two years less one day and three years probation. The crime consisted of non-consensual sexual intercourse with the complainant.

I will not review this case any further because the

complainant in that case was not a child. DETERMINATION OF A FIT SENTENCE FOR MR. W. [ 55 ] I my view, Mr. W.’s crimes call out for a sentence to be served in the federal penitentiary. A provincial jail sentence followed by a lengthy period of probation is not a fit sentence. Mr. W. has demonstrated he will not comply with court orders that are designed to keep children safe. He is a moderate risk to sexually reoffend and he appears ambivalent about getting treatment and help to ensure he does not reoffend.

He was not forthright and honest with Natalie [indiscernible], the author of the Pre-Sentence Report, as he told her that his sexual relationship with M.B. lasted a couple of months and they had sex only once. None of that was true. [ 56 ] For a period of probation to achieve the rehabilitation goal that it is often used for, two key elements must be present. First, the offender must comply with the terms of probation and second, the offender must be forthright and honest with the people in authority who are monitoring him.

For those reasons, I decline to impose a sentence which would be followed by probation. [ 57 ] In arriving at a fit sentence for Mr. W. with respect to his crime against N.D., my view is that the aggravating factors push this sentence above the starting point of three years as set out in Hajar . There was gratuitous violence involving actual violence, intimidation and threats. Mr. W. impregnated N.D. despite her protests.

He tried to persuade N.D. to lie to the authorities and tell them that she had told him she was 16 years old. [ 58 ] Taking account of the applicable sentencing principles of denunciation, specific and general deterrence, rehabilitation, separating Mr.

W. from society to keep our most vulnerable citizens safe, and the aggravating and mitigating factors, I find that a fit sentence for the guilty plea with respect to the sexual interference of N.D. is four years in jail. [ 59 ] With respect to the guilty plea for the sexual interference of M.B., I find that there was not gratuitous violence and that the intimidation occurred at the very end of the relationship, but the relationship continued for nearly two years and started when M.B. was barely 14 years old. As well, Mr.

W. continued to commit offences against M.B. while bound by the bail terms related to his crime against N.D. Again, I find that the aggravating factors in the crime against M.B. push a fit sentence above the starting point in Hajar . [ 60 ] Taking account of all that I am to consider when arriving at a fit sentence in M.B.’s case, I find that a fit sentence is three-and-a- half years to be served consecutively to the sentence imposed for the sentence in N.D.'s case. [ 61 ] Mr. W., if you could please stand. [ 62 ] Today I am imposing a global sentence of seven-and-a-half years in prison.

Taking account of the totality principle and given that this is your first conviction, I reduce that global sentence by one year to a sentence of six-and-a-half years. The six-and-a-half years will be allocated as follows. [ 63 ] On Count 1 on Information 221083-1, you will serve a jail sentence of three-and-a-half years. [ 64 ] On Count 2 on Information 87143-1K you will serve a sentence of three years. [ 65 ] You will receive enhanced credit for your pre-sentence detention at 18 months. That credit can be applied to the three-year sentence imposed on Count 1 on Information 87143-1K.

That leaves a net sentence of five years left to serve in a federal penitentiary. [ 66 ] You can sit down because I have to go through a number of ancillary orders. Mr. Pike, I think I have got all these ancillary orders right but I need you to listen carefully because I may have got them wrong. [ 67 ] Pursuant to s. 109, I prohibit you from possessing firearms for a period of 10 years. [ 68 ] Pursuant to s. 487.051, I order that you provide a sample of your DNA for registration in the DNA Databank. [ 69 ] I did not get the

section number for the registration under SOIRA . [ 70 ] MR. PIKE: The general one that I often cite is 490.012, at least that's the one I made a note of. [ 71 ] THE COURT: Assuming that is the correct section, I order that you are to register and remain on the Sex Offender Information Registry for life. [ 72 ] Pursuant to s. 743.21, I order that you are to have no contact directly or indirectly with M.B. and N.D. [ 73 ] Pursuant to s. 161, I will order that for the next 20 years you are prohibited from doing the following: (

a) Attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre. (a.1) You are prohibited from being within two kilometres of any residence where M.B. or N.D. ordinarily reside. (

b) You are prohibited from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years. (

c) You are prohibited from having any contact, including communication by any means with a person who is under the age of 16 years. (

d) You are prohibited from using the Internet or other digital network. Those sections contemplate there being some contact or use

of the Internet as approved of but he is not going to be on probation so there will not be anyone to approve that. I can say unless approved by the court. (DISCUSSION) THE COURT: So condition 161(1)(

c) will read prohibited from having any contact including communicating by any means with a person who is under the age of 16 except as approved of by the court. He can come back and apply. (

d) Using the Internet or other digital network unless he does so in accordance with conditions set by the court. I am not setting any conditions right now but he is welcome to come back and make an application for some relief from that section. [ 74 ] The victim fine surcharges are going to be payable forthwith. In default, Mr. W. will serve one day in jail. Those two days are to be served concurrently with each other and concurrent to the remaining five years that he will have left to serve. (REASONS FOR SENTENCE CONCLUDED)