R. v. K.A.N., 2020 BCPC 41

Citation: R. v. K.A.N. 2020 BCPC 0041 Date: 20200207 File No: 66176-1; 66435-2-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. K.A.N. BAN ON PUBLICATION 486.4(2) CCC Section 16(4) Sex Offender Information And Registration Act (“SOIRA”) : This

Section provides that no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. SMITH Counsel for the Crown: J. McPherson Counsel for the Defendant: H. Lucky Place of Hearing: North Vancouver, B.C. Dates of Hearing: February 6 and 7, 2020 Date of Judgment: February 7, 2020

INTRODUCTION [ 1 ] This is the sentencing decision with regard to K.A.N. in relation to two charges of sexual assault. [ 2 ] On January 30, 2019, K.A.N. pled guilty to a charge of sexually assaulting S.R., contrary to s. 271 of the Criminal Code , (see: Information 66176, count 1). The offence occurred between one and two in the morning on the 12th of July, 2018, in the living room at K.A.N.'s mother's home where S.R. had been asleep on the couch. S.R. was 15 years old at the time. K.A.N. was 27. He is an Aboriginal man; a member of the [redacted for publication].

S.R. is an Aboriginal adolescent, also a member of the [redacted for publication]. K.A.N. is S.R.'s uncle. Her mother is his older sister. [ 3 ] On December 10, 2019, about seven weeks before the trial was set in the case, K.A.N. pled guilty to a charge of sexually assaulting E.N., also contrary to s. 271 of the Criminal Code , (see: Information 66435-C2, count 1). That offence occurred from October 1, 2010, to June 30, 2015, inclusive, in E.N.'s bedroom. She was living at her grandmother's home, where K.A.N. also resided, because her own mother could not currently look after her.

E.N. was 13 years old in October 2010. She was about 17 as of the end of the offence period. E.N. is also a member of the [redacted for publication]. K.A.N. is her uncle. Her mother is one of his other sisters. [ 4 ] The sentencing hearing with regard to both matters came before me on January 23, 2020. I reserved judgment. THE ISSUE [ 5 ] The general issue in this case is, what is a fit sentence for K.A.N. for these offences? This is not a joint submission case. THE PARTIES’ POSITIONS [ 6 ] The Crown has proceeded by indictment in both cases.

Consequently, pursuant to s. 271 of the Criminal Code , the maximum sentence that can be imposed is 14 years jail on each count. However, the Crown says that the appropriate sentence for each offence is in the range of three to five years jail; further, that taking into consideration the mitigating and aggravating factors and applying the principle of totality, the global sentence appropriate is four to six years, total, for both offences. As well, the Crown seeks a number of ancillary orders which I will discuss at the end of these reasons. [ 7 ] Mr.

Lucky, on K.A.N.'s behalf, submits that an appropriate sentence in relation to the sexual assault of S.R. is 15 months jail and that the appropriate sentence in relation to the sexual assault of E.N. is 27 months jail. He says the total sentence for both offences should be in the range of three to three and a half years jail. He submits that the guilty pleas weigh heavily to mitigate the sentence; notes that K.A.N. has no prior criminal record, has a good work history and support in the community, and is a relatively young man.

He points out K.A.N.’s Aboriginal history and notes that Aboriginal males are greatly over-represented in our jail population. He says that while K.A.N. initially sought to blame the victim, S.R., he now possesses insight and is remorseful with regard to both offences and victims. THE AGREED STATEMENT OF FACTS [ 8 ] At the beginning of the sentencing hearing the Crown filed an agreed statement of facts with regard to each charge. [ 9 ] With regard to the sexual assault of E.N., K.A.N. admits the following facts: (

i) E.N. is the daughter of one of K.A.N.'s sisters. As mentioned, K.A.N.'s parents are E.N.'s maternal grandparents. During 2010, E.N.'s mother was struggling with addiction issues and unable to care for E.N. As a result, at the age of 13, E.N. went to live with her maternal grandparents. K.A.N. lived in their home. (ii) K.A.N. was 19 years old in 2010. He was physically taller and heavier than E.N. About five months after E.N. moved into her grandparents' home, K.A.N. began entering her bedroom at night while she was sleeping and sexually assaulting her, repeatedly.

Initially, she would awaken to find K.A.N. digitally penetrating her vagina. (iii) In late October 2010, just after her 14th birthday, K.A.N. began to sexually assault her by means of vaginal intercourse, as well. The first such assault occurred when he entered her bedroom while she was sleeping. He digitally penetrated her vagina and then had penile intercourse without a condom. She described feeling suffocated as he lay on top of her during the assault. He held onto her arms during the assault, which she described as lasting five to ten minutes.

He did not say anything to her during the assault or afterward, as he got out of her bed and stood silently in her bedroom. She does not remember if she could sleep that night or not. She found blood in her panties the following day. (iv) E.N. lost track of the number of times her uncle sexually assaulted her, because it happened so frequently. She estimates 10 to 15 sexual assaults, with intercourse happening about eight times. As she got older and stronger, she was able to rebuff him by staying awake at night and kicking him away from her when he entered her bedroom.

Despite this, he would return to her room night after night. (

v) K.A.N.'s sexual offending took an inevitable toll on this child. It impacted her relationship with friends and family and adversely impacted her self-esteem in her high school years. In order to keep herself safe from him, E.N. was forced to give up sleep. Physical and emotional exhaustion were the inevitable harmful result of K.A.N.'s criminal behaviour against E.N. She describes her experience in her senior year of high school as including the following: she would go to school unkempt and uncaring, and this had an adverse impact on her socially.

She missed weeks of school, because she would stay elsewhere to avoid the abuse. (vi) She described to the police feeling "gross inside", disgusting, and not worthy of healthy relationships. She was sexually assaulted by her uncle in her bedroom, in a home that was supposed to be safe for her, from the time that she was 13 until she was able to leave upon graduating from high school.

(vii) She did not disclose K.A.N.'s criminal behaviour for fear that such disclosure would tear her family apart, and she advised that she "did not have the strength to do that" because that was the only family she had and that she had nowhere else to go. [ 10 ] As I say, the sexual assaults stopped in the main when E.N. left her grandparents' home in June 2015 after graduating from high school. [ 11 ] While outside the timeframe of the offence for which K.A.N. is being sentenced, he has admitted to the following facts: On July 7, 2018, K.A.N. sexually assaulted E.N. one final time in her grandparents' home when she was visiting there.

In the early morning hours, she and her boyfriend were sleeping on an air mattress in the living room, having been at a friend's party in [omitted for publication] the night before. She awoke to find K.A.N. kneeling on the ground beside her with his hands between her legs, under her shorts, trying to move her underwear. She kicked him away and moved closer to her boyfriend. She did not awaken her boyfriend, because she was concerned that he would react with violence.

She described K.A.N. as remaining sitting and watching her for about 10 minutes, before going downstairs to the basement. [ 12 ] She disclosed the offences that underpin the charge in Count 1 of Information 66435, after learning that S.R. had reported being sexually assaulted by K.A.N. in August of 2018.

E.N. suffered a panic attack in August of 2018 upon disclosing the incident to her grandmother, who advised her that she disbelieved her. [ 13 ] It is clear that the disclosure of the offence has significantly impacted familial relations for E.N. [ 14 ] Turning to the sexual assault of S.R., K.A.N. admits the following facts: (

i) On July 12, 2018, five days after his sexual assault of E.N. in his parents' living room, (mentioned above), he sexually assaulted S.R. (ii) On July 12, 2018, S.R. was 15 years old. K.A.N. was 27. S.R. was going into Grade 10 in the autumn. Her mother is another of K.A.N.'s sisters. (iii) S.R. and her mother live in Surrey. On July 11, S.R. was with friends in [omitted for publication], drinking and smoking. Rather than returning to Surrey by bus, S.R.'s mother arranged for her to spend the night at her grandparents' home where K.A.N. still resided.

I am satisfied that this arrangement was made, at least in part, to keep S.R. safe, rather than having her assume the risks inherent in an adolescent female taking transit late at night, particularly after drinking alcohol, which she had been doing. (iv) She was asleep when the assault began. She had gone to sleep on a couch in the living room. Three other grandchildren were also sleeping in the living room that night, a five-year-old girl, a nine-year-old girl, and an 11-year-old boy. S.R. awoke some time between one and two o'clock in the morning to find K.A.N. pushing his fingers inside her vagina.

She described wanting to scream but not being able to; to feeling helpless and unable to do anything for herself. She estimated that the digital penetration lasted for five to 10 minutes. K.A.N. then got on top of her and had unprotected sexual intercourse with her. She describes K.A.N. as getting up when he was finished and going back downstairs to his bedroom. (

v) S.R. lay on the couch, afraid that her uncle would return. At approximately 3:15 that morning, she left her grandparents' home and called the police and reported the sexual assault. S.R. experienced pain in her pelvic area. A sexual assault exam at [omitted for publication] General Hospital revealed tenderness, swelling, and abrasion consistent with recently applied force to the area. A DNA sample was obtained during the exam. The results are such that the chances of the semen donor not being K.A.N. are estimated at one in 81 quintillion.

THE VICTIM IMPACT STATEMENT [ 15 ] S.R. completed a victim impact statement that has been marked as an exhibit. She read it at the sentencing hearing. She is a slight adolescent girl of small stature. She cried at times when she was speaking. [ 16 ] With regard to physical injury, she describes swelling and abdominal pain following the assault referred to above. With regard to emotional and psychological harm, she describes experiencing her sleep being disturbed by night terrors, which she said made it hard to get out of bed and go to school. She described flashbacks.

She explained that she cannot go back to her own community – [redacted for privacy] – to see her grandmother and family. She describes fear of seeing K.A.N., should she attend at her grandmother's home. She has fears for the other children in that home. She experiences anxiety, suicidal ideation, and has engaged in self-harming. [ 17 ] With regard to the impact on E.N., she did not provide a victim impact statement. However, her experience and consequences of K.A.N.'s assault are referred to above, (see: sub-paragraphs 9 (iii) – (vii)).

THE OFFENDER [ 18 ] The information about K.A.N. comes from counsel's submissions; brief submissions of his brother and him today, as well as the following materials filed at the sentencing hearing: a Pre-sentence Report (“PSR”) prepared after K.A.N.’s guilty plea to the offence against S.R.; an addendum to that report prepared after his guilty plea to the offence against E.N.; a report from Forensics which addresses only the single offence against S.R.; a Gladue report, and the agreed statements of fact. [ 19 ] K.A.N. is 28 years old.

He is a member of the [redacted for publication] and grew up on the [redacted for publication] Reserve in [omitted for publication]. This is not a rural or remote area. He graduated from a local high school and was an average student. He describes his childhood as good, recalling playing with friends and being involved in organized sport. He did not witness violence in his home and did not suffer abuse. He describes his home as a very safe place to grow up. [ 20 ] He has four siblings: three older sisters and an older brother. His two oldest sisters are the mothers of his victims. He remains in

close contact with his brother and other sister. [ 21 ] He has a steady work history and had been employed by a major retailer as a dock loader in North Vancouver for the past seven years. He has taken post-secondary training and obtained trade certificates, including a forklift operation certificate. He has no criminal record. He has no alcohol problems. He told the PSR writer that he had not consumed alcohol for about three years. [ 22 ] He said he smoked about 20 marihuana cigarettes a day.

That said, there is no suggestion that drug or alcohol use was connected to any of the criminal behaviour. [ 23 ] His family is aware of these offences. That awareness has divided the family, as predicted by his victims. [ 24 ] His parents support him. His mother drives him to work every morning. He has performed well while on bail since July 12, 2018, in relation to the offence against S.R. He has not engaged in any counselling or treatment since being charged.

When interviewed on September 25, 2018, in relation to the offences relating to E.N., he told the police that he did not recall any sexual incident with E.N.; that he had a bad memory, and that he feels that he has a spirit that people see of him upstairs at his parents’ house. [ 25 ] When interviewed in relation to the sexual assault of S.R., K.A.N. told police that he saw S.R. sleeping on the couch; that she was wearing a T-shirt and shorts that were "too short for his liking", and that despite her being in a "dead sleep" when he first saw her in the middle of the night, she awoke and demanded that he have sex with her. [ 26 ] After pleading guilty to the charge of sexually assaulting S.R. and speaking with the PSR writer, K.A.N. is described as being open and willing to attend the forensic sex offender program, a sexual offence maintenance program. [ 27 ] With regard to his attitude and understanding in relation to the offences, he is described as acknowledging the sexual activity but not accepting responsibility for his actions, placing it on the victims - S.R., in particular.

He is said to have felt coerced by her into the act, and says that he remembers feeling terrible and disgusted during the sexual interaction. [ 28 ] K.A.N.'s self-reporting of feeling terrible and disgusted during his sexual assault of S.R. must be considered in the context of the other facts now known: He committed the same act repeatedly on another of his nieces for years and had sexually assaulted her just days before the act, which he described as feeling negatively about, in relation to S.R. [ 29 ] Continuing on with regard to his self-reported attitude and understanding, as set out in the PSR, he is said to feel remorse for his actions, stating that he loves all of his nieces and would "never think of doing anything that would harm them". [ 30 ] He is said to recognize that his behaviour was morally wrong and harmful. [ 31 ] That initial Pre-sentence Report is of limited value in that it was prepared after K.A.N. had pleaded guilty to a single instance of sexual assault against S.R., and before he pleaded guilty to the repeated sexual assaults of E.N. over years. [ 32 ] With regard to the forensic report, K.A.N. is said to have chosen not to discuss the details of the offence involving S.R. with the writer, (to which the report was limited), explaining that he was "a bit embarrassed" about the events.

He is said to have little insight into the causes of the assault and advised that "he might have misunderstood" what the victim wanted. [ 33 ] With regard to his sexual history, K.A.N. did not tell the forensic report writer, Dr. Kropp, that he had been sexually assaulting his niece E.N. since 2010. He denied being preoccupied with sex or pornography. In the

summary portion and recommendations of the forensic report, Dr. Kropp writes: There is no indication from this assessment that he suffers from a serious mental condition and there is no evidence that he possesses deviant or aggressive sexual interest. [ 34 ] K.A.N. is described in the report as being of average intelligence with no evidence of any mental illness. [ 35 ] K.A.N. is said to appear somewhat unsophisticated and immature with little insight into the cause of the offence and a minimization of personal responsibility.

As I say, the forensic report is of limited value, given the significant information that was not available to Dr. Kropp at the time. THE GLADUE REPORT [ 36 ] The Gladue report indicates that K.A.N. was not exposed to substance abuse from any of his family members while growing up, and was not exposed to any violence between his parents or other violence.

This was confirmed by his mother, who reported that she ensured that her children were not exposed to alcohol or drug use. [ 37 ] K.A.N. reports that he was never abused by anyone physically, sexually, or emotionally, and that poverty was not a problem for him growing up - that he had "everything he needed". He remains well connected to his family. He graduated from a local North Shore public high school and engaged in organized sports.

He has worked at [redacted for privacy], was a summer fun leader for three summers, and has worked at [redacted for privacy] since 2013 full-time. [ 38 ] He was unsure as to who had attended Indian Residential School in his family. His mother reported that K.A.N.'s maternal grandmother attended the [omitted for publication] Residential School in [omitted for publication] and was placed in foster care with a non-indigenous family. Her cultural and spiritual connections were severed as a result. His grandfather attended the [omitted for publication] Residential School.

Both of her parents were alcoholic and showed some self-abusing behaviours. She has worked hard to heal that intergenerational trauma by connecting herself and her children with their culture. [ 39 ] K.A.N.'s father attended the [omitted for publication] Residential School, but only for a few months. His paternal grandfather attended the [omitted for publication] Residential School and reported abuse there. K.A.N.'s mother attended [omitted for publication]

Day School and while not physically abused herself, observed other children be abused in the school. [ 40 ] Most of his family resides on the [redacted for publication]'s territory in [omitted for publication]. He was more culturally connected when his paternal grandmother was alive. She died in 2018. He has expressed interest in becoming more involved in his culture.

SENTENCING OBJECTIVES AND PRINCPLES TO CONSIDER [ 41 ] The objectives and principles relating to sentencing are set out in sections 718 through 718.2 of the Criminal Code . [ 42 ] The fundamental purpose of sentencing is to protect society and contribute to respect for the law and the maintenance of a just, peaceful, and safe society, (see: s. 718). [ 43 ] The sanctions imposed in a sentencing are to be directed at the following objectives in all sentencings, with varying emphasis on each depending on the particular circumstances of the offender and the offence: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

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

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 44 ] Where, as here, the offences involve the abuse of victims who are under 18 years old, the Criminal Code requires that primary consideration be given to denouncing and deterring such conduct, (see: s. 718.01 ). [ 45 ] In confirming that all relevant factors must be considered in the proportionality analysis in a case involving sexual abuse of a child, Madam Justice DeWitt-Van Oosten, (then of the Supreme Court of British Columbia), quoted from R. v.

Woodward 2011 ONCA 610 to explain the interplay of s. 718.01 in that analysis, at paragraph 53 of R. v. Jaden , 2018 BCSC 1685 : [53] As explained in R. v. Woodward [quoting from that decision at paragraph 76]: [76] . . . when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it.

While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence. [ 46 ] The appropriate sentence will be impacted by the presence of relevant aggravating and mitigating circumstances relating to both the offender and the offence. [ 47 ] The Criminal Code sets out eight factors which are codified as aggravating factors in s. 718.2 (a).

There are four of those aggravating factors in this case which I will discuss shortly. [ 48 ] Sentencing decisions must adhere to the principle of parity – that is to say, similar offenders for similar offences should receive similar sentences, (see: s. 718.2(b)); to the principle of totality, (s. 7182(c.)), and to the principle of restraint, (s. 718.2(d)). [ 49 ] Subsection 718.2(

e) requires a consideration for all offenders all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to the victims or to the community, with particular attention to the circumstances of Aboriginal offenders. [ 50 ] The fundamental principle of sentencing is that a sentence be proportionate to the offender's moral blameworthiness and the gravity of the offence, (see: s. 718.1). [ 51 ] Sentencing is an individualized process, in that the goal is to craft a sentence that is appropriate for the specific offender given the specific offence.

Sentencing ranges provide guidelines to judges engaged in the sentencing process. The guidelines do not detract from the individualized nature of the process. DISCUSSION Information no. 66435-C2 [ 52 ] The Crown says that the appropriate sentence for the offence of sexually assaulting E.N. from October 1, 2010 to June 31, 2015 is a jail sentence in the range of three to five years. K.A.N.'s counsel says that it is lower than that. I do not agree with either position. [ 53 ] Four of the statutory aggravating factors set out in s. 718.2(

a) are present in relation to this offence, as mentioned above: K.A.N. abused a member of his family in committing the offence. As mentioned, E.N. is his niece. That is a statutorily aggravating factor, (see: s. 718.2(a)(ii)). [ 54 ] In committing the offence, K.A.N. abused a person under the age of 18. In 2010, when K.A.N. first sexually assaulted E.N.

when she was sleeping in her bedroom, she was 13 years old. He first forced sexual intercourse upon her when she was 14, and the sexual assaults continued until she was 17. That is an aggravating statutory factor, (see: s. 718.2(a)(ii.1)). [ 55 ] In committing the offence, K.A.N. abused a position of trust. He was E.N.'s uncle. He was an adult residing in the residence in which she resided as a place of refuge, (see: s. 718.2(a)(iii)). [ 56 ] There is evidence that the offence had a significant impact on E.N., as described above.

That is an aggravating factor set out in s. 718.2(a)(iii.1). [ 57 ] In addition to these statutory aggravating factors are the following aggravating factors: K.A.N. admits to having repeated sexual intercourse with E.N., eight times. Sexual intercourse is a grave offence. The repeated assaults over a protracted period of time is aggravating. The sexual intercourse was unprotected: He did not wear a condom. That is an aggravating factor as it exposes the victim to the risk of pregnancy and STDs.

The sexual assaults were planned by K.A.N. to occur or commence at the height of E.N.'s vulnerability when she was alone, asleep in her bedroom. The assaults occurred in a home where she had been placed by her family as a place of safety and security while her mother struggled. It was her home. I find this to be an aggravating factor. [ 58 ] With regard to mitigating factors, while the guilty plea with regard to this offence was not an early one, in that trial dates were secured, it is a significant mitigating factor.

The plea provides certainty of conviction and ensures that E.N. was not further traumatized by having to testify at trial. It expresses K.A.N.'s acceptance of responsibility. [ 59 ] K.A.N. has a good work history and supportive family in the community. He has no criminal record and is relatively young at 28.

He has performed well on bail. [ 60 ] With regard to insight, as mentioned above, the Pre-sentence Report and forensic report evidence limited insight. [ 61 ] With regard to the PSR addendum prepared in relation to the sexual assault of E.N., it indicates more understanding on K.A.N.’s part - certainly than that reflected in the PSR with regard to the offence against S.R. - in that K.A.N. acknowledges being aware of struggles faced by sexual violence victims and acknowledges or seems to appreciate the position of trust that he occupied. [ 62 ] With regard to remorse, K.A.N. today acknowledged his wrong-doing, apologized, and acknowledged that he needs help.

I accept his expression of remorse as genuine. [ 63 ] With regard to rehabilitation, as mentioned, he is relatively young. He has acknowledged a need and willingness to undergo treatment. Those are significant, as well as the other mitigating factors referred to above. [ 64 ] While discussing mitigation, I will refer to s. 718.2(e): The Gladue factors have been described as “mitigating in nature,” so I will discuss them here. [ 65 ] In R. v.

Eustache , 2014 BCCA 337 , our Court of Appeal states the following at paragraph 13: [13] While, as reflected in Ipeelee , the Gladue factors are “mitigating in nature”, it is also true that they are not “traditional” mitigating factors, such as the lack of a criminal record, a guilty plea, a good work history, or the countless other circumstances personal to an offender that may operate to moderate the nature and severity of a sentence. Gladue factors are unique in that they require a sentencing judge to consider the systemic and intergenerational effects of the collective experiences of Aboriginal peoples.

As noted in Ipeelee at para. 82, there is no burden on an Aboriginal offender to establish a causal link between those factors and the commission of the offence. [ 66 ] As discussed in relation to K.A.N.'s moral blameworthiness, below, I do not find relevant Gladue factors exist here such as to moderate the nature or severity of the appropriate sentence with regard to the offences against either E.N. or S.R. [ 67 ] Turning to a consideration of K.A.N.'s moral blameworthiness in relation to the offence against E.N., it is at the very high end.

He repeatedly decided for his own sexual gratification to enter E.N.'s bedroom while she slept or while she was keeping a wakeful and no doubt fearful vigil against his entry, and sexually assaulted the child. He was not deterred after the first time or ever, by his own sense of right and wrong, to not return and harm his niece; the assaults did not stop until she was no longer available to him to abuse. He has no cognitive or mental deficit that explains this. He simply took advantage of the fact that a vulnerable child resided in the home in which he resided.

His actions suggest that he was confident of the community dynamics in that household, that she would not report his actions. [ 68 ] He enjoyed a safe household as a child. He did not suffer abuse himself, sexual, physical, or emotional. He was not exposed to substance abuse or violence. While an Aboriginal man, his parents effectively created a home in which the intergenerational effects of colonization, particularly the impact of the Indian Residential System, were ameliorated successfully. [ 69 ] In R. v.

D.G. , 2014 BCCA 84 , the court discusses the relevance of Gladue factors in the sentencing of an Aboriginal offender with regard to proportionality: [32] . . . In Gladue , the Court clearly stated that s. 718.2(

e) was not simply a discounted sentence. The fundamental principle of sentencing is proportionality (s. 718.1), which requires an assessment of the moral blameworthiness of the offender. The historic and individual circumstances of an Aboriginal offender are highly relevant to the assessment of moral blameworthiness—an assessment that cried out to be performed in this case, but was not considered by the sentencing judge. [ 70 ] In R. v. Morris , 2004 BCCA 305 , Finch, C.J.A. stated as follows at paragraph 60: [60] In addition, the sentencing judge failed to appreciate the moral culpability of this offender.

Although he identified Mr. Morris as an aboriginal offender, he did not properly assess how any systemic or background factors related to that identity contributed to bringing him before the court. In particular, Mr. Morris is not a victim of alcohol or other substance abuse. There is no evidence that he endured a

childhood of family breakdown or dysfunction. And although he mentioned residential school in his submission, I do not understand himto say that he had been victimized or abused in school. [61] We are bound to be aware of and sensitive to systemic issues faced by aboriginal peoples generally. However, there do notappear to be any of the personal mitigating factors so often present in cases of aboriginal offenders. On the contrary, Mr. Morris hasachieved an impressive level of education and been successful in business.

He became a leader in his community, and a person who waslooked [up] to as an example and role model. [71] These passages from Morris are helpful in my assessment of the application of the Gladue factors here. I am mindful thatK.A.N. is an Aboriginal offender. I am mindful of his family's historic experiences. However, he grew up in an urban area, in a happyhome, devoid of violence or substance abuse. He attended public school, did fairly well, has no cognitive deficits.

There are none of thepersonal mitigating factors so often present in cases of Aboriginal offenders, such that his blameworthiness is consequently attenuated. [72] With regard to the other factor in s. 718.1, the gravity of the offence - in which his moral blameworthiness is considered - it toois on the very high end of the spectrum. Sexual assault always involves violence. Here, as mentioned above, E.N. described feelingsuffocated by K.A.N.'s weight on her while he assaulted her. The repeated stealing of her most intimate sense of personal integrity andsecurity is repugnant.

K.A.N. ignored all of this to pursue his own sexual gratification. The offence is one that attracts higher courts’ admonition that the court's role includes the protection of children. [73] I note further in Morris, Chief Justice Finch stated at paragraph 53 that Gladue made it clear that it was not the principles ofsentence that varied in sentencing Aboriginal offenders, but the application of those principles to a particular case. [74] In R. v.

R.R.M., 2009 BCCA 578, at paragraph 24, Smith, JA quotes from paragraph 80 of Gladue: [80] As with all sentencing decisions, the sentencing of Aboriginal offenders must proceed on an individual (or case-by-case) basis:for this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the CriminalCode? [75] I note that when considering “this victim” in “this community” in both of these offences, the consideration includes the realitythat, as Aboriginal females, both S.R. and E.N. are statistically more vulnerable to being sexually assaulted than are their non-Aboriginalcounterparts.

I have regard to (

i) R. v. Barton, 2019 SCC 33; (ii) The Final Report of the National Inquiry into Missing and MurderedIndigenous Women and Girls, Volume 1A, Introduction, p. 55, and (iii) R. v. S.P.S, 2019 BCPC 158, a decision in which the followingquote, attributed to Statistics Canada, (Conroy & Cotter, July 11, 2017), appears: [21(c.)] Aboriginal people—individuals who identified as First Nations, Métis or Inuit—were more likely than non-Aboriginal peopleto report that they were sexually assaulted.

The rate of sexual assault among Aboriginal people was approximately three times higherthan among non-Aboriginal people (58 versus 20 per 1,000 population) …. Of all sexual assault incidents where the victim wasAboriginal, 94% were committed against women. Overall, Aboriginal women reported a rate of 113 incidents of sexual assault per 1,000population, and among young Aboriginal women, more than one in five (22%) was sexually assaulted. [76] Counsel for K.A.N. cites one decision relating to repeated sexual assaults against a child, R. v. C.G.D., 2009 BCSC 404. In thatcase, C.G.D. was the stepfather of the victim.

He sexually assaulted his stepdaughter for six years, beginning when the child was five.The assaults were repeated, sometimes as often as three times a day, and included C.G.D.’s rubbing his penis between the child's barebuttocks and ejaculating on her back, as well as having her perform fellatio. [77] C.G.D. pleaded guilty and had engaged in treatment with a registered psychologist experienced in providing assessment andtreatment of sex offenders, for six months prior to the sentencing, commencing his own significant steps towards rehabilitation.

He wassentenced to three years' jail. [78] While not seeking to minimize in any way the seriousness of C.G.D.'s offending behaviour in relation to the child, I note thatrepeated digital and penile penetration are factors which exist in the case before me which do not appear in C.G.D. Further, there isnothing here akin to C.G.D.'s steps towards rehabilitation. [79] I note that at paragraph 53 of C.G.D., Madam Justice Griffith, (then of the B.C. Supreme Court), quotes with approvalparagraph 44 of an Ontario Court of Appeal decision, R. v.

D.(D.) (2002), (ON CA), 163 C.C.C. (3d) 471: [44] To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent youngchildren on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiaryterms.

When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats ofphysical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. . . (per Moldaver, JA), -- and it continues. [80] I note that the range identified by the Ontario Court of Appeal in D.(D.) accords with the survey of B.C. cases set out by theHonourable Judge Doulis at paragraph 53 of R. v. J.M., 2019 BCPC 235.

There she states: [53] With respect to the offence of sexual interference charged under Count 1, the Crown relies on R. v. T.A.D. [citation given],wherein the BC Court of Appeal stated that in a case involving sexual offences against children over an extended period, the appellatecourt has upheld sentences of up to 12 years or more, but the usual range is from 5 to 8 or 9 years. T.A.D. is referenced in D.N. [and othercases] . . .

The Crown points out in S.S.S., at para. 80, Justice Schultes’ comment in that sentences below the 5 to 9 year range areusually in the context of a guilty plea which the courts recognize as a significant mitigating factor and an expression of remorse.

[81] In the decision of R. v. R.E.L., 2010 BCJ No. 2571 (BCCA), the court also referred to T.A.D. in discussing the appropriate rangefor repeated sexual offences against a young child, noting the court in T.A.D. stated at paragraph 9: [9] Sentences for such a series of offences of up to 12 years or more have been approved by this court but usual range is more likefive to eight or nine years. [82] This is consistent with the approach that "cases that involve multiple sexual activity over an extended period of time andescalating in intrusiveness generally warrant a severe sentence": see R. v.

G.C.F., (ON CA), 2004 OJ No. 3177 (OCA)at paragraph 14, quoted at paragraph 20 of R.E.L. [83] I note that R.E.L. was sentenced to five years' jail after a guilty plea. He had no criminal record, had sought counselling and wasremorseful. The sexual assaults occurred over years and involved repeated touching of the child's genitals, oral sex, digital penetration,and a single act of sexual intercourse. R.E.L. was not of Aboriginal descent. He was the victim's stepfather. [84] I have considered the aggravating and mitigating factors in this case, particularly the guilty plea.

I have regard to all of theobjectives of sentencing, but am mindful of the mandate by Parliament that denunciation and deterrence be at the fore, given the age ofthe victim; these, and the repeated nature of the acts; the moral blameworthiness, and all of the factors discussed above satisfy me thatthe appropriate sentence with regard to the offence of the sexual assault of E.N. from October 1, 2010 to June 30, 2015 is six years jail. Information no. 66176 [85] Turning to the offence against S.R., the Crown says that the appropriate range of sentence for this offence is also three to fiveyears.

Counsel for K.A.N. says that the correct sentence is a jail sentence of 15 months. [86] As stated above, the offence against S.R. is that of a single act of vaginal intercourse commenced with a period of digitalvaginal penetration, begun when she was sleeping on her grandmother's couch after she had been drinking alcohol. Again, thevulnerability of S.R. was patent at the time that K.A.N. chose to gratify himself sexually at the expense of S.R.'s sense of personalintegrity and well-being.

The sexual assault occurred in the presence of three other sleeping children. [87] Turning to the statutory aggravating factors, the four statutory aggravating factors set out in s. 718.2(

a) of the Code present inthe offences against E.N. are present here: K.A.N. abused a member of his family in committing the offence, as S.R. is his niece, (see:s. 718.2(a)(ii)). [88] In committing the offence, again K.A.N. abused a person under the age of 18: S.R. was fifteen years old when he forced sexualintercourse upon her, (see: s. 718.2(a)(ii.1)). [89] In committing the offence, he abused a position of trust, as he was her uncle: (s. 718.2(a)(iii)). [90] There is evidence that the offence had a significant impact on S.R., as referred to above: (s. 718.2(a)(iii.1)). [91] In addition to the statutory aggravating factors are the following: This was not an isolated incident.

The nature of the sexualassault is aggravated, in that it involved not only digital penetration but also sexual intercourse. Again, K.A.N. did not wear a condom.Like the sexual assaults against E.N., K.A.N. commenced the assault of S.R. at the height of her vulnerability, when she was asleep.There was a brazenness to the assault, in that it was committed while three other children slept in the living room where the attackoccurred. The assault occurred in S.R.'s grandmother's home, a place where she had sought safety. As well, there was a twelve year agedifference, K.A.N. being 27 and S.R. being 15.

I also note the initial efforts to shift blame. [92] With regard to the mitigating factors, the guilty plea with regard to this offence was an early one. It occurred at the arraignmentstage, such that there was never the spectre of a trial for the complainant. That is a significant mitigating factor. A guilty plea, as notedabove, provides certainty of conviction and means the complainant will not be further traumatized by having to testify. It is anacceptance of responsibility. [93] The other mitigating factors set out above in my discussion of the offender in relation to the offence against E.N. apply here.

Tosummarize, he has a good work history, no criminal record, a supportive family and community, (albeit now divided in part), he isrelatively young at 28, has belatedly expressed some insight and remorse, has indicated a willingness to engage in appropriateassessment and counselling in relation to these offences. [94] I have regard to s. 718.2(

e) of the Criminal Code and the Gladue report as discussed above in relation to the offence againstE.N. [95] With regard to K.A.N.'s moral blameworthiness in relation to the offence against S.R., it is also at the very high end. There isnothing in his background which reduces it: With E.N. no longer available to satisfy his sexual appetite, it appears that he turned toanother, different adolescent female who had the misfortune of mistakenly identifying her grandmother's home as a safe place.

He aloneis responsible for his decision to sexually assault S.R. while she slept in the living room of a home that he himself had personally found asafe place as a child. [96] With regard to the gravity of the offence, again in my respectful view, it is on the very high end of the spectrum. Sexual assaultalways involves violence. Here S.R. suffered physical injury. [97] Turning to the cases, in my respectful view, the cases cited by K.A.N. to support the sentence proposed are significantlydifferent factually from this case. [98] In R. v.

William, 2014 BCSC 1639, there are highly significant Gladue factors which are absent here. The offence wascommitted while Mr. William was highly intoxicated, did not occur at the victim's home, and Mr. William had taken steps to address his

substance abuse issues for over nine months prior to sentencing. [99] Similarly in W.F.G., 2013 BCPC 302, relevant Gladue factors were present. The accused had also been highly intoxicated at thetime of the offence and took immediate steps to deal with his substance abuse issues; had lost standing in his community and presented asa low risk to reoffend, particularly if not using alcohol. [100] In R. v. McLean, 2014 BCSC 1293, an Aboriginal offender with a dysfunctional background and relevant Gladue historypresented at court. The offence occurred while he was heavily intoxicated. He suffered from alcohol abuse.

The victim of the sexualassault was not a child. There is no suggestion of breach of trust and some other aggravating factors in this case were not present there. [101] I turn to R. v. R.R.M., 2009 BCCA 578 , 2009 BCJ No. 2528 (BCCA), paragraph 19, as I find that paragraph ofguidance in considering this offence and the appropriate sentence in consideration of this offender: [19] The seriousness with which society views the sexual assault of a child is reflected in the federal sentences that are generallyimposed for similar offences in similar circumstances. The sentencing judge relied upon R. v.

B.S.B., 2008 BCSC 1526 as authority forthe proposition that the range of sentence for a sexual assault involving sexual intercourse is between two and six years. In B.S.B, thevictim was 21 years old; the offender was not, however, in a position of trust. The Crown refers to comments of the court in D.A.H.,where McMurtry C.J.O, for the court, observed at para. 34 that: “In R. v.

B. [citation given], this court held that the ‘usual range’ ofsentence in all cases of sexual abuse of children to whom the offender stands in loco parentis if the abuse involves sexual intercourse isthree to five years.” Similarly, in R. v. C.S., 2003 ABCA 325, [other citations provided], Ritter J.A., for the court, stated at para. 7: This court has consistently stated that the starting point for serious sexual assaults involving children in trust situations is at least fouryears [citations provided of supporting cases].

From this starting point a sentencing court is required to consider aggravating andmitigating features, and to arrive at a fit sentence.

When a court starts at a point that is one to two years short of the starting point, theresult will almost invariably be an error in principle. [102] Carrying on to paragraph 20 of R.R.M.: [20] This Court has also expressed its views on the seriousness of offences that involve the sexual assault of a child by an offenderwho is in loco parentis to the child. . . . [103] I am aware that K.A.N. was not in a loco parentis position in relation to S.R., however, I have regard to his position of trust andhis familial connection to his victim. [104] I will make one final reference to the cases provided, but confirm that I have read all of the cases and considered them, providedboth by K.A.N. and by the Crown: In Jaden, where a three-year sentence was imposed with regard to a single act of unprotected sexualintercourse, the offender had turned himself in to police when he heard they were looking for him, (see: paragraph 33).

He entered aguilty plea after the preliminary inquiry and faced significant immigration consequences following his conviction and sentencing. Thecourt imposed a three-year jail sentence, describing it as "at the lower end of the generally accepted range", (see: paragraph 81). [105] While all of these cases simply provide me with a guideline, I note that K.A.N. faces no immigration consequences; denied theoffence when the police dealt with him and offended against a family member which is statutorily aggravated.

It was not an isolatedincident in relation to S.R. [106] As mentioned at the outset, sentencing is an individualized process. Taking all of the factors into consideration and givingparamount consideration to denunciation and deterrence of such conduct, I am satisfied that the appropriate sentence with regard to thesexual assault of S.R. is four years jail.

CONCLUSION [107] Having found that the appropriate sentence for Count 1 on Information 66435-2-C is six years and the appropriate sentence forthe offence set out in Count 1 of Information 66176 is four years, I must apply the principle of totality, as the two sentences for the twooffences shall be served consecutively. [108] In my respectful view, the appropriate length of jail for these two offences is eight years in total.

The sentence with regard to theoffence of sexually assaulting E.N. shall be reduced to five years' jail; the sentence with regard to the offence against S.R. shall bereduced to three years' jail, as I say, to be served consecutively. [109] I will address the ancillary orders now. [110] Pursuant to s. 743.21 of the Criminal Code, K.A.N. shall not communicate, directly or indirectly, with E.N. or S.R. during thecustodial period of his sentence. [111] Pursuant to s. 487.051(1), he shall provide a sample of a bodily substance suitable for DNA testing. [112] Pursuant to s. 490.012 and 490.13 of the Criminal Code, I am ordering that K.A.N. comply with the Sex Offender InformationRegistration Act for life. [113] Pursuant to s. 109 of the Criminal Code, K.A.N. is prohibited from possessing any firearm, crossbow, prohibited weapon,restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance for life.

He is prohibited frompossessing any weapon within the meaning of s. 2 of the Criminal Code. [114] Pursuant to s. 161 of the Criminal Code, K.A.N. is prohibited from seeking, obtaining, or continuing any employment, whetheror not the employment is remunerated, or becoming a volunteer, in a capacity that involves being in a position of trust or authority

towards persons under the age of 16 years. The order will go for twenty (20) years. [ 115 ] Pursuant to s. 161(1)(

c) of the Criminal Code K.A.N. is prohibited from having any contact – including communicating by any means – with any person who is under the age of 16 years, unless: (

i) in a public place where there are other adults present, or (ii) an adult guardian of each such person is present, or (iii) under the supervision of another person identified by the Court as appropriate, for a period of fifteen (15) years. [ 116 ] K.A.N. is prohibited from having contact, direct or indirect, with E.N. or S.R. He shall not attend at any workplace or place of education known by him to be that of E.N. or S.R., and shall not attend within a three-block radius, which includes lanes and alleys, of the residence of either E.N. or S.R., if known to him.

This order is pursuant to s. 161(1)(a.1) of the Code and is for fifteen (15) years. [ 117 ] Pursuant to s. 743.2, the Reasons for this decision shall be forwarded to Corrections. ____________________________ The Honourable Judge L. Smith Provincial Court of British Columbia