Her Majesty the Queen - v. -, 2014 SKPC 57

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 057 Date: March 13 , 2014 Information: 44930720 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kenneth David Park Appearing: Ms. E. Schroh For the Crown Mr. J. Deagle (For the Cross-Examination of Complainants) For Mr. Park SENTENCING DECISION M. HINDS , J Introduction [ 1 ] On June 29, 2011, Kenneth Park was charged with three counts of assault causing bodily harm and three counts of uttering death threats. The Crown proceeded by indictment.

After numerous court appearances, on February 13, 2013, Mr. Park’s court appointed legal counsel set a preliminary hearing for May 2, 2013. On May 2, 2013 with the consent of the Crown, Mr. Park’s legal counsel re-elected for Mr. Park to be tried by a Provincial Court Judge and entered guilty pleas to the three included offences of assault and a single count of uttering a death threat. He also entered guilty pleas to two other offences.

[2] In

summary, on May 2, 2013 Mr. Park entered guilty pleas to the following charges: Information No. 44930720 That between June 28, 2009 and June 23, 2011 at or near Regina he did:

(1) Commit assault on Christa Smith, contrary to

section 266 of the Criminal Code.

(2) Knowingly utter a threat to cause death to Christa Smith, contrary to

section 264 of the Criminal Code.

(3) Commit an assault on Bailey Padley, contrary to

section 266 of the Criminal Code.

(4) Commit an assault on Amber Padley, contrary to

section 266 of the Criminal Code. Information No. 37015064 That on or about November 3, 2011 at or near Regina he did having appeared before a judge without lawful excuse fail to attend Courtthereafter, as required by the Court, contrary to section 145(2)(

b) of the Criminal Code. Information No. 37397738 That between October 22, 2011 and December 12, 2011 at or near Regina he did being at large on his recognizance, he did withoutlawful excuse failed to comply with a condition thereof, to report to the Officer in Charge, front desk Regina City Police every Tuesdayand Saturday between the hours of 8:00 a.m. and 5:00 p.m. [3] On May 2, 2013, I ordered that a pre-sentence report respecting Mr. Park was to be prepared. Sentencing was adjourned toJuly 3, 2013. Shortly after May 2, 2013, Mr. Park fired his lawyer. The matter was brought before the Court on May 15, 2013.

Thecourt appointed lawyer applied for and was granted leave to withdraw as Mr. Park’s counsel. Mr. Park took the position that he was infact not guilty of the substantive offences before the Court. An expungement hearing took place before me on June 17, 2013. I deniedMr. Park’s application to expunge his guilty pleas. [4] Mr. Park did not admit to any of the facts pertaining to the substantive offences before the Court. As a result a sentencinghearing occurred on October 2 and 3 and November 28, 2013 and on February 13 and 14, 2014. The Crown called 12 witnesses over thecourse of the sentencing hearing. Mr.

Park and his roommate, Ron Safioles also testified at the sentencing hearing. [5] The only issue concerns the appropriate sentence for Mr. Park. [6] For the reasons which follow, pursuant to

section 742.1 of the Criminal Code, I am imposing a Conditional Sentence Orderfor the period of fifteen months. Sentencing Hearing [7] In R. v. Gardiner, (SCC), [1982] 2 S.C.R. 368 the Supreme Court of Canada set out the law on sentencingat page 414 - 15 as follows: It should also be recalled that a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offenceadmitted by the plea, and no more. Beyond that any facts relied upon by the Crown in aggravation must be established by the Crown. Ifundisputed, the procedure can be very informal.

If the facts are contested the issue should be resolved by ordinary legal principlesgoverning criminal proceedings including resolving relevant doubt in favour of the offender. [8] In R. v. L.T., 2012 SKPC 49 , 2012 SKPC 049, Judge Gordon stated as follows:

5. A hearing to resolve disputed sentencing facts is commonly referred to as a “Gardiner Hearing”. The procedure set out in Gardiner isnow codified into section 724(3) of the Criminal Code. 6. In R. v. Poorman, (SK CA), [1991] S.J. No. 274, 66 C.C.C. (3d) 82, the Saskatchewan Court of Appeal adoptedthe direction in R. v. Boulet, (SK CA), 85 Sask. R. 93, which is now stated in section 724(3) that where there is asubstantial conflict in the facts, the Court must hold a formal sentencing hearing with the onus on the Crown to prove the aggravatingfacts beyond a reasonable doubt. 7.

This procedure is quoted with approval in R. v. Malnowski, 2007 SKCA 33 and R. v. Tonido-Yuiiti, 2010 SKCA 81. [9] Subsection 724(3) of the Criminal Code reads as follows: 724(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, (

a) the court shall request that the evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidencewas adduced at the time of trial; (

b) the party wishing to rely on a relevant fact, including a fact contained in the pre-sentence report, has the burden of proving it; (

c) either party may cross-examine any witnesses called by the other party; (

d) subject to paragraph (e), the court must be satisfied on the balance of probabilities of the existence of a disputed fact before relying onit in determining the sentence; and (

e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous convictionby the offender. [10] Mr. Park’s guilty pleas amounts to an admission of nothing more that the essential elements of three assaults. By virtue of theguilty pleas Mr. Park has admitted that he applied some physical force that each of the complainants did not consent to, on one occasion. Anything more being alleged by the Crown (i.e. any more than one incident of assault, or any increase from a bare minimum of physicalforce) becomes a disputed fact.

Such disputed facts must be proven beyond a reasonable doubt. [11] The Crown must also prove any aggravating factors beyond a reasonable doubt.

With respect to the assault charge concerningChrista Smith there are several aggravating factors that the Crown asks this Court to find, namely: 1) that the accused in committing the offence, abused his common-law partner [s. 718.2(a) (ii)], 2) that the assaults were frequent (daily), and 3) that the victim was subjected to numerous types of assaults consisting of being punched, kneed, kicked, elbowed, held and strangledto the point of unconsciousness. [12] With respect to the assault charges concerning Amber Padley and Bailey Padley there are several aggravating factors that theCrown asks this Court to find, namely: 1) that the accused in committing the offence, abused a person under the age of eighteen years [s. 718.2 (a) (ii.1)] and 2) that the accused in committing the offence, abused a position of trust or authority in relation to the victim [s. 718.2(a) (iii)]. [13] As stated above, the law is clear, that the Crown must prove each of these aggravating factors beyond a reasonabledoubt.

I will deal with each of these charges below.

[ 14 ] With respect to the charge of uttering a death threat to Christa Smith, I previously found that Mr. Park entered a guilty plea to this charge. That being so, the Crown did not make any submissions or present any evidence respecting the facts of the death threat. Therefore, I am unable to pronounce sentence on this offence at this time. Given these unusual circumstances I will permit the Crown one more opportunity to present the Court with some facts which form the basis of this offence. In the event Mr.

Park disputes the Crown’s version of the facts, a further formal sentencing hearing on the threat charge will have to occur. Introduction [ 15 ] Kenneth Park and Christa Smith first met each other when they were teenagers in Swift Current, Saskatchewan. They dated briefly. Mr. Park and Ms. Smith met again as adults in Swift Current in early 2009 and began a friendship which evolved into a romantic relationship. In 2009 Mr. Park was 28 years old and Ms. Smith was 29 years of age. Ms. Smith had two children from other relationships. Bailey Padley was born on August 9, 2000.

Amber Padley was born on September 9, 2002. [ 16 ] Prior to this relationship, it appears Ms. Smith had been living with her children and her then boyfriend Travis Dyck, at Ms. Smith’s parent’s home in Swift Current. Ms. Smith moved into Mr. Park’s apartment in June of 2009. Sometime over the summer of 2009 Amber and Bailey Padley joined their mother, Ms. Smith and began living with Mr. Park at his apartment in Swift Current. [ 17 ] The relationship between Ms. Smith and Mr. Park went well for several months. Mr. Park was self-employed in the stucco business and Ms. Smith worked at a special needs home.

After several months the couple began to have disagreements and arguments relating to three main issues, being

(1) Ms. Smith’s very close connection to and reliance on her family, in particular her mother,

(2) Ms. Smith’s former boyfriend, Travis Dyck, who Mr. Park considered a romantic rival vying for the affection of Ms. Smith, and (3) the behaviour of the children, Amber then age 6, and Bailey then age 8. [ 18 ] Unfortunately, the couple were unable to resolve these issues. The relationship was volatile and unhealthy. Nonetheless they continued to live together in Swift Current until September 2010 and then in Regina from September 2010 until June 23, 2011. Both Ms. Smith and Mr. Park struck me as being quite immature, very emotional and having poor problem solving abilities. In addition, both Ms. Smith and Mr.

Park had substance abuse problems and used marihuana and cocaine which only added to their dysfunction. The evidence revealed that Mr. Park used cocaine while being treated for an opiate addiction at a methadone clinic in Regina. The evidence also revealed that Ms. Smith has had a bipolar disorder since the age of 17 which was controlled by two prescription medications: lithium (1200 milligrams daily) and seroquel. Ms. Smith testified that she stopped taking lithium about 6 months prior to leaving Mr. Park on June 23, 2011. She no longer uses this medication. Factual Findings on the Assaults

i) Assaults on Ms. Smith [ 19 ] The Crown has clearly established that Mr. Park and Ms. Smith were a common-law couple between June 28, 2009 and June 23, 2011. The evidence shows that Ms. Smith weighed approximately 120 pounds and Mr. Park weighed approximately 240 pounds. Both admitted to having heated arguments, involving name calling, swearing and yelling that led to physical contact. [ 20 ] Ms. Smith testified that “everyday it was abuse, screaming, yelling, hurting, hitting me and the girls”. She further testified that Mr. Park would always become physical first. She testified that Mr.

Park would grab her, strangle her (sometimes to the point she became unconscious), hold her down, put her in holds, punch her in the back of the head, knee her, place his elbows in her ear and jaw and push his thumbs into her eyeballs. [ 21 ] Mr. Park testified that sometimes he would have heated arguments with Ms. Smith that involved mutual yelling, name calling and fighting. He testified that sometimes “we didn’t fight for a month or two weeks”. Mr. Park testified he never initiated a physical fight with Ms. Smith (“I never hit her first, but I responded”). Rather it was Ms.

Smith that always attacked him first and he would then hold Ms. Smith in self-defence. Mr. Park denied punching, kicking or gouging Ms. Smith’s eyes. He testified that he would attempt to restrain Ms. Smith by placing her in a bear hug. He testified that in the course of a “scuffle” with Ms. Smith she would try to scratch his face and chest with her nails and pull his hair. He denied strangling her from behind to the point of unconsciousness.

[ 22 ] Mr. Park testified about a particular fight that occurred around Christmas 2010. This was the one occasion that he recalled putting his hands on Ms. Smith’s throat. He testified that Ms. Smith grabbed him by his hair and would not let go. During this incident she upset a wine rack and caused a 10 pound “ornament” (sculpture) to hit his head. When Ms. Smith did not let go of his hair he grabbed her by the throat while facing her until she let go. He also acknowledged that during a fight he may have kneed or elbowed Ms. Smith while restraining her. [ 23 ] Mr.

Park did candidly acknowledge that he dwells on issues and has trouble letting go of them. In this case these issues included (1) his perception that Ms. Smith’s family (in particular her mother) was interfering with their relationship, (2) his perception that Travis Dyck was his romantic rival for Ms. Smith, and (3) the children’s behaviour at home and at school. [ 24 ] Overall I found that Mr. Park minimized his responsibility and blamed others (including Ms. Smith, her mother and father, the children and Mr. Dyck) for his actions. Mr. Park lacked insight into his volatile relationship with Ms.

Smith and his own substance abuse. For the better part of 18 months, Mr. Park exhibited excessive controlling and aggressive behaviour towards Ms. Smith and her children. During this time Mr. Park was very emotional. His jealousy of Travis Dyck led him to behave in such a way, that in August 2010 he agreed to entering a peace bond for 1 year requiring him not to have any contact with Travis Dyck. Mr. Park was easily frustrated and angered by Ms. Smith and her children. As time went by he increasingly attempted to control many aspects of their lives including but not limited to (1) contact with Ms.

Smith’s family, (2) contact with others, (3) use of the telephone, (4) their whereabouts, and (5) the children’s behaviour at home. Regrettably, Mr. Park became physical with Ms. Smith and her children. [ 25 ] At times during his testimony, I found Mr. Park to be manipulative, for example his portrayal of Ms. Smith as being mentally unstable and on medication, while downplaying the fact that he was well aware of her mental health condition (bipolar) and that he and Ms. Smith were both using marihuana and cocaine. I also found that Mr.

Park was prone to exaggeration, including but not limited to his description of Ms. Smith as a “Golden Gloves Boxer”. [ 26 ] I also found that there were problems with Ms. Smith’s testimony which affected her reliability and credibility. Ms. Smith presented herself as someone who was so completely in love with Mr. Park that she succumbed to his will and remained with him for nearly two years despite daily arguments and domestic violence. There is also her admitted use of marihuana and cocaine during the relationship, which no doubt affected her judgment. In addition, there is the troubling admission by Ms.

Smith that she has lied in the past. During cross-examination she admitted that she lied to Mr. Park when she told him that her father molested her. Ms. Smith testified she hoped this lie would get Mr. Park off her back respecting her family and help her make a connection with Mr. Park. This lie must have, in part, led to Mr. Park’s strong desire to separate Ms. Smith from her family. [ 27 ] I also found that Ms. Smith often exaggerated the facts during her testimony. For instance: (1) she testified that “Ken (Mr. Park) was the boss of everything and I had no choice in making any decisions”,

(2) Mr. Park pushed my family away. “I was not allowed to talk to any of my family or friends ever ”, (3) “There was maybe an hour a day when he wasn’t livid”,

(4) We were never allowed out, (5) “He hated us every day”, (6) “We would fight about the kids, he would get angry. There would be a physical altercation and it would always end up with him strangling me, punching me, drop kicking, holds”, and

(7) I was strangled everyday . [ 28 ] It is trite law that the trier of fact can believe all, some or none of a witness’ testimony. In this case I am unable to entirely accept the evidence of either Ms. Smith or Mr. Park. Instead I accept some of the evidence from each. [ 29 ] Overall I found Ms. Smith’s testimony when coupled with the testimony of the children and their Regina neighbours complaining of frequent loud fights establishes that from time to time she was assaulted by Mr. Park and that these assaults often consisted of him grabbing and holding Ms. Smith against her will.

I also find that during the course of some of these forced holds, Mr. Park grabbed Ms. Smith by the throat and restricted her airway. At times he also kneed and elbowed her. I also find that at other times Ms. Smith initially assaulted Mr. Park. He would then respond by attempting to physically restrain her. [ 30 ] I am unable to determine the exact number of times Ms. Smith was assaulted by Mr. Park during the time in question. I am satisfied the assaults did not take place each and every day over the course of nearly two years. I am satisfied beyond a reasonable doubt that Ms. Smith was assaulted by Mr.

Park no less than nine times. These assaults were varied. I find

that on most occasions Mr. Park used his greater size and weight to his advantage. He did this by grabbing Ms. Smith and holding her against her will. In addition, I find that on no less than three occasions he would punch, knee or elbow her. I also find that on no less than three occasions he would put his hands around Ms. Smith’s neck and choke her. ii) Assaults on the children

a) Bailey Padley [ 31 ] From June 28, 2009 until June 23, 2011, Bailey Padley was a child, between 8 and 10 years old. At the sentencing hearing Bailey was age 13, and a grade 8 student living with her mother in Swift Current. Pursuant to

section 714.1 of the Criminal Code Bailey testified via closed circuit t.v. from a soft room located in the Regina Provincial Court Building. A support person was seated beside Bailey. Pursuant to

section 715.1 of the Criminal Code , Bailey Padley adopted the contents of a video recording of a police interview conducted of her on June 30, 2011 and then responded to some additional questions. [ 32 ] The video recording of Bailey Padley’s police interview reveals that she lived in what could be described as a demeaning, controlling and at times violent household environment. Bailey testified that Mr. Park would call her sister Amber and herself a variety of degrading names such as “Retard”, “Stupid”, “Little Bitches”. Christa Smith, Bailey and Amber were closely monitored by Mr. Park.

He was quick to discipline the two young girls for what appears to be minor matters including eye rolling, for getting home late after school, for poor manners around the house and for not doing their chores around the house to his satisfaction. When Bailey got into trouble with Mr. Park he would give her “a licking”. Bailey testified that a licking meant Mr. Park slapped on her buttocks (over her clothing) with his hand. Bailey also testified that Mr. Park would often push or throw her down to the floor and then give her a licking. She added that Mr.

Park would hit her quite hard as he would “wind up” before hitting her. [ 33 ] Bailey described an incident where she was either late coming home or was accused of stealing $10.00 from Mr. Park. She testified that once in the home she went to her room. Mr. Park then opened the door to her room and she screamed. She testified that she knew Mr. Park did not like her screaming. Mr. Park then threw her onto the couch and she screamed some more. Mr. Park then put a pillow over her head and then gave her a licking. She testified that her left eye was scratched during this incident.

In another incident she testified that she was screaming and Mr. Park put his hand over her mouth. When he let go he scratched her lip. [ 34 ] Bailey Padley testified that Mr. Park gave more lickings to her younger sister, Amber who he called “Ugly”. Amber Padley [ 35 ] From June 28, 2009 until June 23, 2011, Amber Padley was a child, between 6 and 8 years old. At the sentencing hearing Amber was age 11, and a grade 6 student living with her mother in Swift Current.

Amber Padley also testified via closed circuit t.v., sat beside a support person and adopted the contents of a video recording of a police interview conducted of her on June 30, 2011 and then responded to some additional questions. [ 36 ] The video recording of Amber Padley’s police interview revealed an eight year old girl describing the events of her life living with Mr. Park, her mother and sister. Amber testified that when she first met Mr. Park he was “kind of nice and then he grew grumpy”. She testified that she and her mother and sister lived with Mr.

Park at his duplex for several months in Swift Current and then moved to Regina. When they moved to Regina there was “10 times more fighting, punching, scratching, strangling and breaking bones” (her mother was kicked in the bum by Mr. Park). [ 37 ] Most of Amber’s testimony dealt with her recollection of events occurring in Regina. She described the following assaults in Regina:

(1) Mr. Park would smack her and her sister, Bailey in the face,

(2) Mr. Park would put pillows over the face of herself and her sister which made it difficult to breathe,

(3) Mr. Park would usually hit her on the bum over her clothing, (4) once he picked her up by her arm, and (5) sometimes he kicked me with his steel toed boot. Amber also testified about an incident when she was taking a shower. She testified that Mr. Park put his hand under her chin which made it difficult to breathe. She had a red mark under her chin following this incident. Amber said her mother came to her defence.

[ 38 ] On cross-examination Amber made the following concessions:

a) After initially testifying that her mother got strangled five times a day, every day, she admitted that she did not know how often her mother got strangled by Mr. Park. She stated “Well, I don’t know if it was exactly five times, but she got beat a lot by Ken”;

b) After initially testifying she would get lickings every single day, 10,000 times a day, she admitted that she would get hit or spanked a few times, like quite a bit, every day, in both Swift Current and Regina;

c) After initially testifying that Mr. Park broke her mother’s bones she admitted that she assumed her mother broke her bones. [ 39 ] Amber also testified that on cross-examination that when she lived in Swift Current with her mom, sister Bailey and Mr. Park, her mother was not allowed to work. This is clearly incorrect given Ms. Smiths’s own testimony that she worked at a special needs home during this time. Christa Smith ’s Testimony Respecting the Children [ 40 ] Ms. Smith testified that her daughters often were disciplined by Mr. Park.

She testified that “After I seen his anger towards them, I pleaded that I’d be the only one to discipline them, but he said I wasn’t capable of doing it. So, that was not agreed upon”. Ms. Smith thought “time outs” and “one smack on the butt” were appropriate forms of discipline for her daughters. Ms. Smith testified that Mr. Park would throw them on the ground, hold them down and repeatedly hit them on the bum (over their clothing) and call them names. She added that Mr. Park would hit the girls on the bum until they cried and that she would always be there by Mr. Park’s side and she would try to divert Mr.

Park’s attention by jumping in front, resulting in her getting a beating instead. Ms. Smith also testified that Mr. Park would cover the children’s and her mouth or tell them to shut up so that other people would not hear. [ 41 ] On cross-examination, Ms. Smith admitted that her daughters received other forms of discipline, including separating the girls when they fought with each other, standing them in a corner, groundings and writing lines in a book. Ms. Smith also admitted that her daughters did quite well at school in Regina. Mr. Park ’s Testimony Regarding the Children [ 42 ] Mr.

Park testified that there were “no rules” for the children before Ms. Smith and her daughters moved in with him. He stated that he was bothered by the girls “lying, cheating and fighting”. He did not think this behaviour was appropriate. Mr. Park testified that he would spank the girls at the direction of Christa Smith. Bailey Padley [ 43 ] Mr. Park testified in-chief that he spanked Bailey on two occasions, once in Swift Current and on one occasion in Regina. [ 44 ] Mr. Park recalled that he spanked Bailey three times on the bum on one occasion in the fall of 2009 while they were living in Swift Current. Mr.

Park testified this spanking was at the direction of Ms. Smith as a result of an incident at Bailey’s school when she pushed a children down and spit on his arm. [ 45 ] Mr. Park testified that he gave Bailey one further spanking in June of 2011 at the direction of Ms. Smith. This spanking was the result of Bailey not telling the truth about what happened to $10.00 of $20.00 he had previously given her to purchase some food at McDonald’s Restaurant. Mr. Park testified that Bailey resisted the spanking and was kicking at him and was screaming and yelling.

He spanked her twice about the belt line as Bailey kicked at him and struggled to get away from him. In the course of this struggle Mr. Park testified that Bailey scratched her eye on a couch. He denied striking Bailey’s left eye area. Exhibit P-3 shows a scratch/abrasion to

Bailey’s skin just above her left eye and just below her left eyebrow. Amber Padley [ 46 ] Mr. Park testified that in total he spanked Amber Padley five or six times. He testified that he spanked Amber Padley three times on the bum on the same day in the fall of 2009 that he spanked Bailey. He testified that the spanking was a consequence for Amber throwing rocks at others while at school. He added that Ms. Smith directed him to spank Amber. [ 47 ] Mr. Park testified that he spanked Amber about five times while they lived in Regina. On four of the five occasions, Ms.

Smith was present and directed him to spank Amber. The first spanking, (consisting of three hand spanks) of Amber in Regina took place in approximately October 2010. This was a result of Amber possessing a cigarette and a lighter. A second spanking (three times on the bum) of Amber took place one Sunday when a lighter was found in Amber’s pillowcase. Mr. Park spanked Amber a third time (three slaps to the bum) sometime after Christmas 2010 and the month of March 2011. The spanking was for writing swear words in coloured crayons on the walls of a bedroom and at school. While Ms. Smith wanted Amber to do lines, Mr.

Park indicated that other forms of discipline such as groundings, standing in a corner, doing chores and lines were not working and that “the only thing these kids fear is a spanking”. Mr. Park maintained that he never spanked the kids out of anger. [ 48 ] Mr. Park spanked Amber on a fourth occasion in April or May 2011 (three times on the bum). Amber received this spanking as a result of jamming a plastic fork in the door lock to the apartment. A locksmith had to be called to fix the lock. [ 49 ] A few weeks later another incident occurred between Mr. Park and Amber. Mr. Park testified that Ms.

Smith was not at home. He discovered that Amber had put some food she did not want to eat in her pillowcase. He also discovered that Amber had put some dirty underwear in with her clean underwear. He spanked Amber three times on the bum with an open hand. [ 50 ] Lastly, Mr. Park testified that right around the time of the fourth spanking of Amber, he went into the bathroom while Amber was showering herself. Amber was looking at her feet and laughing about having “poppy underwear” while Mr. Park was trying to talk to her about washing herself properly. Mr.

Park said “it’s not funny” and began putting a luffa sponge on his hand. Mr. Park described how he put his hand under Amber’s chin and raised her chin and said “ Look at me when I am talking to you”. He testified that Christa came into the bathroom and observed Amber rubbing herself under the chin area. Mr. Park testified that Ms. Smith then started punching him with her fists. He claimed Ms. Smith is a “golden gloves” boxer. [ 51 ] On cross-examination Mr. Park agreed that he gets emotional when he is upset and that he yelled at Christa and the girls, “loud enough for the neighbours to complain”. Mr.

Park testified that both he and Ms. Smith spanked the girls when they “were not listening to us”. Mr. Park maintained that when the girls did not listen to him or misbehaved it “didn’t upset me”. Social Assistance Worker - Heather Dovell-McLellan [ 52 ] Some of the actions of the children clearly did upset Mr. Park. I found the testimony of Heather Dovell-McLellan to be very credible and reliable. During the couple’s stay in Regina, Ms. Dovell-McLellan was their income assistance worker. Ms. Dovell- McLellan met with the couple together and then separately. In June 2011 she met with Mr.

Park to discuss his efforts to locate a job in Regina. Ms. Dovell-McLellan described an appointment with Mr. Park where he was very emotional and upset. She stated as follows: And prior to that, I’d had an appointment with Ken and he was very emotional and very upset because he wasn’t able to - - to work out of town because he had been on the methadone program and he was no longer to have - - allowed to have carries. And he said he wasn’t allowed to do that because he was smoking weed again and he said he was doing that because of his frustrations with the girls.

And he was very, very agitated in our meeting and talked about how he felt the girls were manipulating Christa and he wasn’t allowed to discipline them and they upset him so much he didn’t know what to do about it. [ 53 ] Ms. Dovell-McLellan was concerned about the safety of Ms. Smith and her daughters. She made arrangements for Ms. Smith

to meet with a domestic violence worker. She went on to testify as follows: . . . The meeting where Ken talked about the girls and the frustrations was very disturbing to me and it - - and it scared me and I felt that there needed to be Family Services involved just to check out the situation. Analysis - Assaults on Children [ 54 ] I am of the view that over time Mr. Park became increasingly frustrated living with Christa Smith and her two young daughters. Mr. Park had some of his own problems including his continued use of cocaine and marihuana while being on methadone and his lack of employment.

He also had limited coping skills and anger management issues. He had a turbulent relationship with Ms. Smith which often became physically assaultive. In addition he was unaccustomed to living with Ms. Smith’s young children in a small apartment in a new city. It appears Mr. Park attempted to gain some control in his life by attempting to control those closest to him. This did not always work out well for him. Sometimes he assaulted Christa Smith. At other times he assaulted Bailey and Amber Padley. [ 55 ] I am satisfied that the Crown has proved beyond a reasonable doubt that Mr.

Park was in a position of trust and authority over the girls when he assaulted Bailey and Amber Padley. In doing so he abused a person under the age of eighteen. The girls, in particular Bailey, often referred to Mr. Park as “ dad ” during her testimony. [ 56 ] In this case I am of the view that the Crown has proved beyond a reasonable doubt that Mr. Park assaulted Bailey Padley during the spanking incident which occurred in June 2011 over the unaccounted $10.00. Mr. Park lost his temper and overpowered Bailey and hit her several times on her buttocks.

During this incident, I find that Bailey attempted to fight Mr. Park off and escape from him. In the course of this struggle, a portion of skin above Bailey’s left eye was scraped away. [ 57 ] In this case I am of the view that the Crown has proved beyond a reasonable doubt that Mr. Park assaulted Amber Padley on two occasions: (1) being the time he spanked Amber for having food in her pillowcase and putting her dirty underwear with clean underwear, when Ms.

Smith was absent, and (2) when he put his hand under young Amber’s chin and lifted her head, while she was in the shower. [ 58 ] Each of these incidents were not an exercise of parental discipline. Rather I find that on each of the three occasions, the young children were overpowered and assaulted by Mr. Park. Sentencing Position of the Parties [ 59 ] The Crown submits that depending on my factual findings respecting the assaults before the Court, an appropriate sentence could range from 18 to 24 months less a day period of incarceration to Suspended Sentence with Probation to follow. [ 60 ] Not surprisingly, Mr.

Park does not want to go to jail. Law [ 61 ] Sections 718 to 718.2 of the Criminal Code guide the Court in determining the appropriate sentence for an offender. [ 62 ]

Section 718 provides that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions with one or more of the objectives set out in that section. These objectives include:

(

a) Denouncing unlawful conduct; (

b) Deterring the offender and other persons from committing offences; (

c) Separating offenders from society if necessary; (

d) Rehabilitating offenders; (

e) Providing reparations for harm done to victims or the community; and (

f) Promoting a sense of responsibility in offenders. [ 63 ] The weight to be placed on each of the objectives listed in

section 718 is determined by the circumstances of the offence and the offender. [ 64 ] The fundamental principle of sentencing set out in

section 718.1 of the Criminal Code requires that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 65 ]

Section 718.2 of the Criminal Code lists a number of other secondary sentencing principles a Court must take into consideration when fashioning a sentence. These factors include consideration of aggravating and mitigating circumstances, as well as the principles of parity, totality, and restraint. [ 66 ] In this case an extensive sentencing hearing was required as Mr. Park was not prepared to acknowledge that he assaulted anyone, at any time. As a result each of the three victims were required to testify. In this case I find that Mr.

Park does not take any responsibility for his actions and does not have any sincere feelings of remorse. [ 67 ] Mr. Park has a prior criminal record. He has two prior convictions for assault in 1995 and 1999 when he was a youth. He does not have any convictions involving the use of violence as an adult. Mr. Park’s adult criminal record consists of 21 convictions. Ten of these convictions are property related offences, including theft over $5,000.00, possession of property obtained by crime under $5,000.00 x 2, fraud under $5,000.00 x 2, uttering a forged document x 2, and break, enter and theft x 2.

He also had two drinking and driving convictions in 2002 and 2006. [ 68 ] Mr. Park’s last convictions occurred in 2006 for two charges of break, enter and theft, contrary to section 348(1) (

b) of the Criminal Code . He was originally sentenced to a total of nine months incarceration on these charges, however, on appeal this sentence was reduced to time served of four months. In Kenneth David Park v. Her Majesty the Queen , 2007 SKCA 3 , Mr. Justice Cameron spoke for the Court and stated as follows at paragraphs 3 - 5: [3] He told us he had been repeatedly roughed up by other prisoners and that, in consequence of this and of recent strike-action taken by correctional workers, he had spent the last three weeks in twenty-four hour lockup for his own protection.

This, and the remainder of his prison experience, seems to have affected him deeply and to have opened his eyes to several realities, including his immature attitudes and behaviours, his destructive habits and tendencies, and his cavalier disregard for others. Judging by his self-critical and heartfelt plea to us to alter his sentence, he appears to have gained considerable insight and maturity. In short, his time in prison seems to have largely accomplished its objectives.

He is likely to be released within the next two months - his earliest release date in March - seems appropriate in the circumstances to now release him in an effort to encourage his rehabilitation. [4] We want to make it clear that we have accepted the appellant’s account at face value, assuming his genuineness, and that he has in effect been given a break, one would expect him to profit from and avoid further criminal behaviour, as he assured us he would. [5] For essentially these reasons, then, the appeal is allowed to the extent of reducing the appellant’s term of imprisonment to time served.

The probation order made by the sentencing judge will remain in force. Aggravating and Mitigating Factors

[ 69 ] Regrettably, Mr. Park has not avoided further criminal behaviour. It appears his destructive habits and tendencies, as well as his disregard for others have continued. In this case I have found the following to be aggravating factors: With Respect to the charge of assault on Christa Smith 1) The accused abused his common-law partner [s.718.2(a)(ii)], 2) There were multiple assaults (not less than nine), and 3) that the victim was subjected to numerous types of assaults consisting of being punched and kneed (not less than three times) and held and choked (not less than three times).

With respect to the assault charges concerning Amber Padley and Bailey Padley 1) The accused abused a person under the age of eighteen years [s. 718.2(a)(ii.1)], and 2) In committing the offence, the accused abused a position of trust or authority in relation to the victim [ s. 718.2 (a)(iii)] . [ 70 ] In this case there are few mitigating factors. Mr. Park is 32 years old. During the course of his testimony it became evident that Mr. Park has difficulties controlling his emotions. At times he appeared to be quite frustrated and angry. At other times he teared up and appeared to be quite sad.

He testified that he has experienced some anger problems since his parents divorced when he was approximately 12 years old. He stated that he has been quite depressed for three years, but has not sought out professional help. Mr. Park testified that he last used cocaine in August 2013. He continues to use marihuana. [ 71 ] During the sentencing hearing Mr. Park advised that he is self-employed in the stucco business. He works for about nine months of the year. He rents a house at 1324 Retallack Street in Regina. For the past year, Mr.

Park has been living with a roommate, Ron Safioles, who is recovering from leukemia. Mr. Park has assisted Mr. Safioles in his recovery. [ 72 ] Mr. Park testified that he has had no contact with the complainants since they separated on June 23, 2011. He also testified that he has not been in a relationship with a woman since June 2011. Given the nature of these proceedings, the Court considers this to be positive news. Appropriate Sentence [ 73 ] I am of the view that a suspended sentence and probation is not an appropriate sentence, given all of the circumstances of this case.

A suspended sentence does not adequately denounce Mr. Park’s conduct, nor would it deter Mr. Park or others from such assaultive behaviour in the future. [ 74 ] In this case, I am of the view that deterrence and denunciation can be met by the imposition of a Conditional Sentence Order (CS0) for the period of 15 months. I am satisfied that service of this sentence of imprisonment in the community would not endanger the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 and 718.2 of the Criminal Code . [ 75 ] The following conditions apply: 1.

Keep the peace and be of good behaviour. 2. Appear before the Court when required to do so by the Court. 3. Report to the Conditional Sentence Supervisor at 2 nd Floor, 1942 Hamilton Street, Regina, Saskatchewan, in person by 2:00 p.m.,

March 14, 2014 and after that when required and in the manner directed by the supervisor or his designate. 4. Remain within the jurisdiction of the Court (Saskatchewan) unless written permission to go outside that jurisdiction is obtained from the Court or supervisor. 5. Notify the Court or supervisor in advance of any change of name or address and promptly notify the Court or supervisor of any change of employment or occupation. 6. Live at 1324 Retallack Street in Regina , Saskatchewan and not change that residence without the prior written approval of your supervisor or the Court. 7.

For the first 6 months of this order, stay inside your approved residence from 10:00 p.m. each night until 7:00 a.m. the next morning unless you have the prior written permission of your supervisor or designate to be elsewhere and come to the door of your approved residence when asked to do so by a probation officer or a designate or police officer who may be checking the residence and curfew conditions of this order. 8.

Not to possess or consume alcohol or drugs that have not been prescribed for you by a medical doctor and not enter or be in any place in which the main purpose is the sale of alcohol, such as bars or liquor stores. 9. Participate in assessment(

s) and complete programming for domestic violence, anger management and personal counselling for depression as told to do so by your Conditional Sentence Supervisor or their designate. 10. Seek and maintain employment as directed by the supervisor. 11. Have no contact of any kind in any way, directly or indirectly with Christa Smith, Bailey Padley or Amber Padley. 12. Not to be at the residence, workplace or place of education of Christa Smith, Bailey Padley or Amber Padley. 13.

Not possess any firearms or ammunition, cross-bow, prohibited weapon, restricted weapon, prohibited device, prohibited ammunition or explosive substance. 14. Have no contact directly or indirectly with any person under the age of 16 unless you are in the company of an adult who has been approved for such purpose by your Conditional Sentence Supervisor or their designate. DNA Order [ 76 ] The offence of assault is a secondary designated offence as defined under

section 487.04 of the Criminal Code . As such,

section 487.051(3) grants me discretion as to whether to order a DNA sample. That

section requires that I “consider the person’s criminal record, whether they were previously found not criminally responsible on account of mental disorder for a designated offence, the nature of the offence, the circumstances surrounding its commission and the impact such an order would have on the person’s privacy and security of the person”. [ 77 ] I consider this an appropriate case, given the nature of these three assaults, to impose a forensic DNA order under s. 487.051 of the Criminal Code , and I do so in the standard terms.

You will, therefore, attend at the Regina City Police Station within the next two days to provide such samples as are reasonably required for that purpose. Conclusion [ 78 ] In

summary, I sentence Mr. Park to 15 months of imprisonment to be served in the community on a Conditional Sentence Order. Mr. Park is ordered to provide samples of his DNA to the police within the next two days. [ 79 ] The matter before the Court has been difficult and I would like to thank counsel for their very thorough and thoughtful submissions which have been of assistance to the Court.

M. Hinds, J