R. v. K.J.M. Date:, 2016 BCPC 306

Citation: R. v. K.J.M. Date: 20160420 2016 BCPC 306 File No: 23465-C-3 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. K.J.M. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W.F.M. JACKSON Counsel for the Crown: N. Purewal Counsel for the Defendant: M. Murphey Place of Hearing: Hazelton , B.C. Date of Hearing: March 8, 9, 2016 Date of Judgment: April 20, 2016 Background

[ 1 ] On January 6 th , 2016 K.J.M. pled guilty to sexual touching of a person less than 14 years of age between June 16 th , 2004 and April 30 th , 2008. On the same date he pled guilty to sexual touching of a person less than 16 years of age between May 1 st , 2008 and June 16 th 2013. These charges are on Information 23465-C-3 that replaced an earlier Information 23465-1 that charged sexual touching and sexual assault between July 1 st , 2012 and September 30 th , 2012. The accused had pled guilty to the sequence 1 Information earlier.

The expanded “C” Information was caused by greater disclosure of criminal behavior in a subsequent statement by the victim and the receipt of the results of a DNA test that confirmed the accused to be the father of a child born to the victim in [omitted for publication]. All charges involve the same victim C.R. [ 2 ] The victim C.R. was born [omitted for publication]. The accused was the stepfather of C.R. He married C.R.’s mother in August 2001. That couple produced a son who is now 13 years of age. The primary victim named in this Information was four years of age at the time of the marriage.

It is clear from the Victim Impact Statements filed and her statements to the police that she viewed him as her father and referred to him as such. [ 3 ] There was an extensive history of sexual grooming and exploitation basic to these charges. When C.R. was seven years of age, the first sexual contact with the offender occurred when he fondled her vagina. The offender started performing oral sex on C.R. when she was nine years of age. He had her perform fellatio on him when she was twelve years of age.

There were numerous acts of fondling, cunnilingus and fellatio performed against the victim throughout this period. [ 4 ] When C.R. was thirteen, the offender had full intercourse with her despite her verbal refusal and while holding her down. There were numerous episodes of sexual intercourse by the offender against C.R. thereafter. [ 5 ] Ultimately the victim C.R. became pregnant. It was a difficult and high risk delivery. The offender attempted to have sexual intercourse with the victim C.R. while she was in labour to ease the delivery. Eventually an emergency Caesarian delivery was necessary.

The offender resumed sexual intercourse with the victim one month after delivery. [ 6 ] Throughout the period June 16 th , 2004 and June 16 th 2013 the offender used his religious teachings to manipulate the victim and her mother. From time to time he would apologize for what he was doing and abstain for periods of time but as C.R. grew older the frequency of exploitation increased. [ 7 ] The offender increasingly isolated C.R. from outside contact. At age twelve she was removed from public school to be homeschooled.

She rarely left the home after that unless she was accompanied by the offender. [ 8 ] If C.R. had innocent contact with age appropriate males the offender would accuse her of being a “slut”. C.R. noted that if she cried, the offender seemed to her to be empowered by it, so she suppressed her emotions. [ 9 ] The mother of C.R. also provided a Victim Impact Statement. It eloquently and vividly detailed the devastation the offender’s actions wrought on C.R., herself, and her son who is in counselling because of it.

The Law [ 10 ] The principles of sentencing are laid out in sections 718 , 718.01 , 718.1 , and 718.2 of the Criminal Code . The relevant factors in s. 718 are denunciation, deterrence, separating the offender from society, rehabilitation, reparations, to promote a sense of responsibility in the offender, and acknowledgment of the harm done to the victims and the community. [ 11 ]

Section 718.01 reads, “When a court imposes a sentence for an offence that involves the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [ 12 ]

Section 718.1 reads, “A sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. [ 13 ]

Section 718.2 requires the court to consider aggravating and mitigating circumstances which include: a person under 18 was abused by the crime, that the offender abused a position of trust in relation to the victim, that the offence had significant impact on the victim considering her age and personal circumstances. [ 14 ] In R. v. G.M. 2015 BCCA 165 , our Court of Appeal at paragraph 17 stated that denunciation and deterrence are the paramount objectives in sentencing such cases. [ 15 ] In R. v. Stuckless 1998 O.J. #3177, the Ontario Court of Appeal at page 22 stated that “sexual abuse is

an act of violence. When committed against children, the violence is both physical and profoundly psychological.” [ 16 ] In R. v. R.E.L. 2010 BCCA 493 our Court of Appeal in paragraph 28 confirmed the range of sentence for repeated sexual offences against a young child as being between 5 and 8 or 9 years of gaol. More recently, this range of sentence was applied in R. v. G.E.W. 2014 BCSC 2597 by Mr. Justice Myers. [ 17 ] In R. v.

K.R.J. 2014 BCCA 382 our Court of Appeal at paragraph 33 noted that court “has signaled a preparedness to accept more severe sentences for sexual abuse of children than may have been imposed in the past.” [ 18 ] In R. v. T.P.C. 2000 BCSC 742 at paragraph 16 , Mr. Justice Romilly listed some factors to be considered in sentencing cases of sexual offences.

The first is “the nature and intrinsic gravity of the offences, which is affected by, in particular, the use of threats of violence, psychological threats and manipulation.” [ 19 ] In the case at hand we have physical violence during the first sexual intercourse, clear and overwhelming grooming, psychological violence such as the offender threatening suicide and manipulation.

[ 20 ] The second factor listed was the frequency and time frame of the offences. In the case at hand there was an increasing frequency over 9 years. [ 21 ] The third factor listed was the abuse of trust or authority. In the case at hand there was a most clear breach of the trust relationship that society expects from a person standing in the place of a parent to a child. [ 22 ] The fourth factor listed was “underlying disorders in the offender”. In his second psychological assessment the offender suggested there may be submerged memories of childhood abuse against him.

He wishes counselling to explore these issues. [ 23 ] The fifth factor listed was the character of the victim and lingering effects of the abuse. In the case at hand, C.R. has clearly laid out the emotional impact and ongoing problems she still experiences in interpersonal relationships. As well, there is the continuing emotional trauma she expects in raising her son and the ultimate issues of explaining the family history to him. [ 24 ] The sixth factor listed was previous convictions.

There are none. [ 25 ] The seventh factor was the offender’s behavior since the commission of the offence such as confessions, collaboration in the investigation, the immediate involvement in a treatment programme, and empathy for the victim. [ 26 ] In the case at hand, the offender entered early guilty pleas. He has not taken treatment because he was unaware of how long the case would linger in the courts. He did not give a confession but did volunteer a DNA sample. The volunteering of the DNA sample was of small consideration as a DNA warrant as part of the police investigation was virtually inevitable.

The guilty plea to the earlier Information has some mitigating value. [ 27 ] The guilty plea to the charges after DNA testing proved him to be the father of C.R.’s child is merely yielding to the inevitable. However, the offender did have a right to put the Crown to proving its case at trial.

Accordingly, the guilty plea and lack of a need for the victim to testify at the sentencing hearing did save C.R. from re-victimization. [ 28 ] An aggravating factor is that the offender continued to have sexual contact with the victim even after he was aware that the police were investigating. [ 29 ] The Forensic Psychiatric report and update both assess the offender on the static 99R test to be a low risk to reoffend and after applying the Risk for Sexual Violence Protocol assessed the offender’s risk to reoffend in similar situations to be “chronic”.

Analysis [ 30 ] It is clear that the range of sentence in this type of case is currently 5 to 9 years of gaol. The defence provided a number of older precedents to support a lower range of 2 years less one day to six years of gaol. Both Crown and defence provided a large number of sentencing precedents to support their positions. [ 31 ] The Crown suggests a nine year sentence. The defence suggests either 2 years less one day plus three years of probation to assist in rehabilitation to a maximum of six years in gaol. [ 32 ] Mr. Justice Johnson summed up well in paragraph 38 of R. v. Leung 2016 BCSC 214 .

He wrote: Authorities are always difficult to deal with on sentencing, because sentencing, as the courts repeatedly say, is an acutely personalized process. Each offender is to be sentenced according to what the offender has done, in light of who that offender is and the circumstances surrounding the offence, the impact on the victims, the threat or risk to society. [ 33 ] After consideration of all the evidence, case law, and submissions presented at the sentencing hearing, I conclude that K.J.M.’s sentence should be at the high end of the range.

The strongest mitigating factor is that the victim did not have to testify because of the guilty plea. The vast majority of the sentencing factors were aggravating. Accordingly, the sentence I impose is eight years in gaol on both count one and two to be served concurrently as they are basically one continuing offence. [ 34 ] In addition to the custodial sentence I make the following ancillary orders:

a) an order under the Sex Offender Information Registry Act that the offender be registered for twenty years.

b) that a DNA sample be taken from the offender pursuant to s. 487.04 of the Criminal Code as the convictions are for primary designated offences.

c) an order under s. 109 of the Criminal Code prohibiting the offender from having firearms, crossbows, prohibited weapons, restricted weapons, prohibited devices, ammunition, prohibited ammunition and explosive substances for life.

d) an order under s. 161 of the Criminal Code for life prohibiting the offender from:

i) 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 daycare centre, school ground, playground or community centre; ii) being within two kilometers of any dwelling-house where the victim C.R. ordinarily resides; iii) 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.

e) an order under s. 743.21(1) of the Criminal Code that the offender is not to communicate directly or indirectly with C. R., D. M., S. M. or B. R. during the custodial period of this sentence.

______________________________ W.F.M. Jackson Provincial Court Judge