R. v. K.D.C. Date:, 2013 BCPC 176

Citation: R. v. K.D.C. Date: 20130710 2013 BCPC 0176 File No: 57373-3C Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. K.D.C. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE CUTLER BAN ON PUBLICATION Pursuant to s. 486.4(2) Criminal Code of Canada Counsel for the Crown: A.L. Ormiston Counsel for the Accused: P. Evans

Place of Hearing: Chilliwack , B.C. Date of Hearing: June 18-19, 2013 Date of Judgment: July 10, 2013 [ 1 ] THE COURT: The offender is before the court for sentencing as a result of guilty pleas being entered with respect to two very serious offences. The first matter occurred during the period from October 1, 2011 through to October 4, 2012, during which time the offender repeatedly sexually assaulted a child, causing her bodily harm, contrary to section 272 (2) (

b) of the Criminal Code . The second matter relates to the possession of child pornography from January 1, 2008 through to October 4, 2012 contrary to

section 163.1(4) of the Criminal Code . The offences are related in that some of the child pornography the offender possessed contained pornographic images and video of the victim the offender had sexually assaulted. [ 2 ] An agreed statement of facts was presented to the court for the purposes of sentencing. The commission of the offences set out in the statement of facts provides an extremely disturbing account of the offender’s conduct and the ordeal to which the victim was subjected.

I will summarize the agreed facts. [ 3 ] The offender was 27 years old when in August 2011 he began a romantic relationship with the mother of the victim. A few months later they commenced living together when the victim was a little over 2 years old. The victim viewed the offender as a father figure and called him "Daddy". [ 4 ] Shortly after commencing this living relationship the offender started sexually touching the victim. This touching commenced with fondling of the victim's genitals however as the victim was still wearing diapers the touching, according to the offender, was more difficult.

Shortly thereafter, the offender commenced having anal intercourse with the victim and would ejaculate in her anus. The sexual activity also included oral sex. By February or March of 2012 the offender commenced having vaginal intercourse with the victim and would ejaculate in the victim's vagina. According to the offender, he engaged in sexual intercourse (vaginal or anal) every night for the month or two before his arrest on October 4, 2012.

On October 4, 2012 the offender was in the process of sexually assaulting the victim when the police entered his residence and found the two in bed. [ 5 ] The victim often bled from her genitals during these assaults. A medical examination conducted on the victim after the offender’s arrest revealed the disruption of the hymen and scarring which extended up a short distance into the lower vagina. As well, the victim was found to have genital warts near her anus. The offender had genital warts at the base of his penis when he was assaulting the victim.

When the victim was placed with foster parents after her apprehension she resisted sleeping in a bed and would only sleep on the floor. She was also incontinent at that time but this seems to have resolved itself. [ 6 ] After arresting the offender, the police were able to seize a number of electronic devices owned by the offender. These devices contained numerous videos depicting some of the offender’s sexual assaults of the victim. These videos are graphic.

They show the offender engaging in oral sex as well as vaginal and anal intercourse with the victim, with blood on the victim's vagina and the offender’s penis. The accompanying audio is haunting as the victim can be heard vocalizing her pain and distress by crying, whimpering, and calling out "my mommy" and "owie’. In one video the victim is crying when the offender tells her to “shut up”.

The victim continues to cry ”owie” as the offender penetrates her and it appears as though the offender slaps the victim across the face. [ 7 ] The offender was tactical in the manner by which he abused the victim in that he took efforts to ensure that his assaults of the victim would not be discovered. At one point, he ceased sexual contact with the victim for a brief period as he was afraid of the abuse being discovered by the victim's daycare provider or her biological father.

He admitted that he initially proceeded with anal intercourse of the victim, as he believed there would be no clear evidence of a sexual assault which there could be with vaginal intercourse. He was also obstructive of the attempts made by a social worker with the Ministry of Children and Families when the latter attempted to interview the victim about any potential abuse. [ 8 ] With respect to the possession of child pornography, the police seized various electronic devices from the offender including cell phones, computers, and other digital storage devices.

In total the offender’s devices were found to possess 777 images and 72 videos that meet the definition of child pornography in the Criminal Code . The police were unable to access all the material on the various devices due to corruption and other difficulties. The offender however admitted to collecting over 10,000 images of child pornography. In reviewing the various electronic devices seized from the offender, the police found child pornography depicting both the victim and unknown child victims.

The material contained graphic images of young children engaged in various sexual acts including oral sex and sexual intercourse with adult males. [ 9 ] For the purposes of sentencing the offender was referred for a psychological assessment. The assessment was prepared May 9, 2013 after numerous interviews were conducted with the offender, as well as the administration of psychological tests.

The insight provided by this assessment is at once disturbing and shocking. [ 10 ] The offender was adamant that he disapproves of the social views and laws prohibiting sex with children and that he views such a relationship as the purest form of love. The offender claims that he loved the victim and that having sex with her was part of that love. He claims that he was "gentle with her, I did not hurt her". Not surprisingly, the assessment concluded the offender is a pedophile who is sexually attracted to pre-pubescent children.

The assessment further concluded that the offender demonstrated no sense of guilt, shame, regret or remorse for his behavior .

He acknowledged no victim impact and demonstrated no victim empathy. [ 11 ] While he maintained that he did not believe having sex with a child was harmful, consistent with his selfish and narcissistic personality, he was of the view that if there were bad consequences, he hoped that he would forget about it and that any "feeling bad" he might have would go away. [ 12 ] The offender stated during one of the interviews that "I do not believe that I can be rehabilitated" and that he will have sex with

children again if he has the opportunity. The offender also stated that he has "no regrets" for his conduct and "if I had the chance to goback I would do exactly the same way and I would not change anything from what I have done". The assessment concluded that theoffender is at a very high risk of sexually reoffending against a prepubescent child if given an opportunity. [13] Since being incarcerated while awaiting trial, the offender has acquired a tattoo with a design which includes the victim'sinitials. The offender indicates the tattoo symbolizes a "child lover" where the child is not "trapped".

During the submissions onsentencing the offender continued to advance his position that his relationship with the victim was gentle and loving, and of a romanticnature. It is inconceivable that anyone could observe the videos of the assaults perpetrated by the offender and be oblivious to thephysical, psychological, and emotional injury caused. The incidents depicted on the videos can only be characterized as a painful andtraumatic experience for a helpless and harmless two year old child. The victim is repeatedly forcibly assaulted despite her obvious painand distress and her whimpering pleas.

It is incomprehensible that an individual could observe the assaults perpetrated by the offenderon the victim as depicted in the various videos and conclude that this constituted a loving, caring relationship in which the victim was not"trapped". The offender’s position at sentencing illustrates the extent of his fundamental misunderstanding of normal human behaviorand sensibilities, and the extreme and ruinous cruelty inherent in his conduct.

It is extremely alarming that the offender continues tomaintain his assaults of the victim were a display of love, and he would do it all again if given the opportunity. [14] The court heard extensive argument with respect to the principles applicable to sentencing offenders who have committedsexual assaults of minors and possessed child pornography.

Before determining the appropriate sentence in this matter, it may be helpfulto review some of the principles applicable to sentencing generally as well the principles and the jurisprudence applicable to sentencingfor similar offences as those committed by the offender before this court. [15] Sentencing has been recognized as an individualized process engaging a complexity of factors related to the nature of theoffense and the personal characteristics of the offender.

The judge must weigh the normative principles set out by Parliament in theCriminal Code including the objectives of the denunciation, deterrence, separation of offenders from society, rehabilitation of offenders,and acknowledgment of and reparations for the harm they have done. The sentence must be proportionate to the gravity of the offenseand the degree of responsibility of the offender; and should be increased or reduced to account for aggravating or mitigatingcircumstances.

And a sentence should be similar to other sentences imposed in similar circumstances. [16] Both the Criminal Code (s.718.01) and the jurisprudence (R. v. B.C.M., 2008 BCCA 365) make it clear that when sentencingfor an offence involving abuse of a person under the age of 18 years, the court must give primary consideration to the objectives ofdenunciation and deterrence of such conduct. [17] The two offences for which the offender has pled guilty are related in that they both relate to sexual abuse of minors.

Moreover,the sexual assaults perpetrated by the offender on the victim were videoed and formed part of the pornographic material the offender hadcollected. Nonetheless, they are two distinct offences and it is appropriate that separate jail sentences should be imposed to be servedconsecutively. In proceeding in this fashion however, the court must be mindful of the principle of totality and the resulting globalsentence (R. v. B.C.L., 2010 BCCA 183, and R. v. B.C.M., supra). [18] It is difficult, due to the variables in offences of this nature, to find a case with identical circumstances.

There are manyvariables including the age and number of the complainants, the frequency and severity of the sexual assaults, whether the offenderstood in a position of trust, the extent of the violence, the background of the offender, and the offender’s attitude towards the offence. [19] It is also worth noting at this stage that one must be careful when considering sentences imposed for sexual offences againstchildren which occurred prior to the 2005 amendments to the Criminal Code. The amendments have signalled to the courts that sexualoffences against minors must be met with more significant sentences (R. v.

B.C.M., supra). [20] The Ontario Court of Appeal provided some general guidance with respect to the gradation of sexual assaults committed onyoung children by someone in a position of trust. In R. v.

D.D., (2002), (ON CA), 163 C.C.C. (3d) 471, MoldaverJ.A. wrote at p. 484: To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young childrenon a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms.When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physicalviolence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate.

Finally, incases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higherpenalties will be warranted. [21] More recently the Supreme Court of Canada in R. v. L.M., 2008 SCC 31, confirmed a total sentence of 15 years in a similar caseto the matter before the court. In that case the offender was sentenced to a period of incarceration of 10 years for sexual assault (themaximum permitted) and 5 years for distributing and possessing child pornography. The offences were all committed before 2005.

Thecase involved similar circumstances where there were repeated sexual assaults of a very young child, and the offender was in a parentalrelationship with and position of authority over the victim. There are some distinctions including the fact that the offender in that casehad a prior record.

However, the offender’s sexual assaults had not caused bodily harm to the victim (which provides for a greatermaximum sentence of 14 years) and the offender had acknowledged his sexual deviancy. [22] The Supreme Court of Canada recognized the violence inherent in repeated sexual assaults of young children and approved ofthe need to denounce such conduct, deter sexual offenders from committing such offences and separate these offenders from societywhen there is a lack of remorse.

Denunciation is particularly important when the criminal acts included the abuse of a child in relation towhom the offender was in a position of trust and the offence was committed in the context of the abuse of a position of authority inrelation to the victim. [23] There are a number of cases from the Court of Appeal of this province where sentences have been imposed on an offender whowas before the court for committing sexual assaults of children and for offences relating to child pornography.

These cases recognizethat the periods of incarceration imposed usually are consecutive for these offences but ultimately the totality principle must prevail (R. v.

B.C.L. , supra , and R. v. B.C.M . , supra ). In these cases the court confirmed global sentences of seven years and six years respectively. The circumstances in these cases were not as egregious as the matter before this court in that there was no bodily harm inflicted, no sexual intercourse, and the assaults were not as frequent. As well, the child pornography in these cases was not as voluminous nor did it depict sexual acts to the extent of that found in the material possessed by the offender. [ 24 ] In another decision from our Court of Appeal, R. v.

O.M. , 2009 BCCA 287 , the court imposed a sentence of five years imprisonment on offender who had sexually abused his daughter over an extended period of time. In that case the court noted that the offender had been sexually abused when he was younger and accordingly must be treated with compassion. As well, the court noted that the offender was generally remorseful and was committed to therapy to address his difficulties. [ 25 ] In an older case from our Court of Appeal, R. v.

D.L.M., 2001 BCCA 266 , an offender was sentenced to a period of five years incarceration for sexual assault causing bodily harm to a young girl aged 3 1/2 years. The offender was in a father position to the victim when he, on a single occasion, caused injury to the victim's vagina by forcefully inserting an object. Similar to the offender in this case the offender was a poor prospect for rehabilitation as he had refused to take any responsibility for his actions.

There were no allegations or evidence of child pornography involved in that case. [ 26 ] In another case involving the sexual assault of a child 2 1/2 years of age, this court imposed a sentence of four years after the offender pled guilty (R. v. R.L.S ., 2005 BCPC 217 ). While there were numerous instances of sexual assault including anal intercourse they were not as frequent as the matter before this court nor was there vaginal intercourse. As well, the offender had a disadvantaged history, was assessed as being immature with cognitive difficulties, and was remorseful for his actions.

This decision addressed offences committed prior to the 2005 amendments to the Criminal Code . [ 27 ] While there are some mitigating factors, the case before me presents the court with a significant constellation of aggravating factors not often seen in the jurisprudence. [ 28 ] The offender’s conduct constituted a profound breach of trust. He was in a position of a father to the victim who was both innocent and extremely vulnerable. The offender does not seem to be able to grasp that his actions were in fact a betrayal of the victim and the unconditional trust she placed in him.

The offender exploited this vulnerability to satisfy his own selfish perverse desires. As indicated earlier, the offender was tactical in the manner by which he was able to avoid detection thus allowing him to continue to take advantage of his position in relation to the victim. [ 29 ] The frequency of the assaults which took place over a period of a year and subjected the victim to repeated painful and traumatic assaults was significant. [ 30 ] The conduct of the offender constituted an egregious sexual assault of a two-year-old girl.

The victim suffered physical injury and despite the appearance of blood from her genital areas during the assaults, the offender nonetheless persisted. The victim’s protests, whimpering, and crying for help throughout the assaults were not only unanswered but at times were rebuked with verbal and physical assaults. The long term psychological and emotional harm to the victim is incalculable. [ 31 ] The sexual assaults were premeditated and planned. The offender took steps to ensure that the victim's mother would not interfere with the assaults.

As well, the offender filmed the assaults in order that he could subsequently view the assaults for his own pleasure. This further objectified the victim and allowed the offender to view the video repeatedly. [ 32 ] The offender displayed no empathy during the commission of the assaults or since. He has no remorse for these abhorrent acts and indeed indicates that if given the chance he would do it all again. [ 33 ] The assessment conducted on the offender concludes that he is at a very high risk to reoffend by sexually assaulting a prepubescent girl.

The assessment does not appear to hold out much hope for treatment due to the difficulty in attempting to change the offender’s rigid beliefs and attitudes with respect to pedophilia and his continued belief that this conduct was not harmful to the victim. [ 34 ] There are some mitigating factors including the offender does not have a criminal record, he cooperated with the investigation and he has entered a guilty plea. [ 35 ] After considering all the factors engaged in this matter and the applicable law and jurisprudence, I am satisfied that a significant period of incarceration at the higher end of the range for these types of offences is warranted in order to properly denounce the abhorrent conduct of the offender, act as a specific and general deterrent, and protect the community.

It is particularly important in this case to separate the offender from society in order to emphasize specific deterrence due to the offender’s continued reprehensible attitude towards the offences and his very high risk of reoffending against young children. In order to meet the objectives of sentencing, I am imposing a period of incarceration of ten years for the offender’s conduct in sexually assaulting the victim and causing her bodily harm.

This sentence will properly reflect the moral blameworthiness of the offender and society’s condemnation of such depraved and despicable conduct targeting the most vulnerable and innocent among us. [ 36 ] With respect to the possession of child pornography offence, I believe, due to the extensive volume and the graphic sexual acts involving children depicted in the material collected by the offender, a sentence in the range of three to four years would be appropriate.

However, in applying the totality principle and acknowledging the sentence of incarceration of ten years for the sexual assault causing bodily harm to the victim, I believe a period of incarceration of two years for possession of child pornography, to be served consecutively, would be appropriate; thus providing for a global sentence of twelve years. [ 37 ] The offender has been in custody since his arrest on October 4, 2012. Based on the approach recently clarified by our Court of Appeal in R. v.

Bradbury, 2013 BCCA 280 , and the joint submissions from counsel, I believe it is appropriate the offender receive credit on a 1:1 basis for the time spent incarcerated from October 4, 2012 to January 22, 2013. On January 22, 2013 the offender indicated his desire to enter a guilty plea in this matter but logistics beyond his control prolonged the resolution of this matter. Accordingly, the offender ought to be given credit on the basis of 1.5:1 from that date to the date of this judgment.

[ 38 ] In addition, the Court imposes the following ancillary orders: 1. The offender is required to provide a sample of bodily fluids for DNA analysis pursuant to s. 487.051 of the Criminal Code . 2. The offender is required to register and maintain compliance with the Sex Offender Information Registration Act for a period of life. 3. All items belonging to the offender seized in the investigation of this matter are forfeited pursuant to s. 164.2 of the Criminal Code . 4.

Pursuant to s. 109(1) of the Code , the offender is prohibited from possessing any weapon as described in s. 109(1) for a period of 10 years following the offender's release from prison. This order is in relation to the conviction under s. 272 (2) (

b) of the Criminal Code . 5. Pursuant to s. 161(1)(a),(

b) and (

c) of the Code , the offender is prohibited from attending at a public park, public swimming area where persons under 16 are present or may reasonably be expected to be present, or daycare centre, school ground, playground or community centre; from seeking or continuing employment or being a volunteer in any capacity involving being in a position of trust or authority towards persons under the age of 16 and from using a computer system for the purpose of communicating with a person under the age of 16.

This prohibition is for life commencing on his release from prison, subject to further order of the Court under s. 161(3) of the Criminal Code . 6. An order under s. 743.21 of the Criminal Code prohibiting the offender from communicating with the victim or her mother during the period of his incarceration. ________________________ R.F. Cutler Provincial Court Judge