IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR TRIAL DIVISION (GENERAL) Citation: R. v. T.K.

, 2012 NLTD(G) 52 Date: 20120327 Docket: 201104G0091

BETWEEN: HER MAJESTY THE QUEEN

AND: T.K.

Restriction on Publication: The proceedings in this case are subject to an Order made under s. 486.4(1)(a)(i) of the Criminal Code that any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way. ___________________________________________________________________ Before: The Honourable Mr. Justice Alan Seaborn ___________________________________________________________________ Place of Hearing: Date of Sentencing Hearing: Sentencing Decision Rendered: Summary: The 33-year-old offender had an ongoing sexual relationship, including sexual intercourse and oral sex, for a four month period, with the 14-year-old victim. For the offence of sexual interference the offender received a Corner Brook, Newfoundland and Labrador February 16, 2012 March 27, 2012

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Page: 2 sentence of 21 months imprisonment and a one year Probation Order. As well, a Firearms Prohibition, a DNA Order, a Sex Offender Information Registration Order, an Order of Prohibition and a victim surcharge were imposed. Appearances: Trina Simms Gary Kearney, Q.C. Authorities Cited: CASES CONSIDERED: R. v. Atkins (1988), 69 Nfld. & P.E.I.R. 99, 4 W.C.B. (2d) 348 (Nfld. C.A.); R. v. L.F.W. (1997), 155 Nfld. & P.E.I.R. 115, 119 C.C.C. (3d) 97 (Nfld. C.A.); R. v. Hammond, 2011 NLTD(G) 8; R. v. Cooper, 2011 NLTD(G) 121. STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46, as am., ss. 16(1)(b)-(c), 109(1)(c), 109(2)(a)-(b), 151, 271, 342.1(2), 486.4(1)(a)(i), 487.04(a)(i.1), 487.06(1), 490.011(1)(a)(ii), 490.012(4), 490.018, 490.031, 718(a)-(f), 718.01, 718.1, 718.2(a)-(b), (d)-(e), 732.1(5), 732.2(3)&(5), s. 733.1, 737(1), 2(b)(ii), 737(8); Sex Offender Information Registration Act, S.C. 2004, c. 10, ss. 4-7, 17(1). Counsel for Her Majesty the Queen Counsel for T.K.
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REASONS FOR JUDGMENT SEABORN, J.: THE OFFENCE

[1]

The offender, T.K., pled guilty to two charges being that he:
Count No. 1

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Count No. 2 On or between the 1st day of November A.D., 2009 and the 4th day of April A.D., 2010 at or near Stephenville in the Province of Newfoundland and Labrador did commit a sexual assault on E.A. contrary to Section 271 of the Criminal Code.

[2] Crown counsel noted that both charges relate to the same factual incidents and requested that the charge of sexual assault be stayed in accordance with the Kienapple principle and I so order. Accordingly, the offender will now be sentenced on the sexual interference charge, Count No. 1.

[3] The relevant provisions of s. 151 of the Criminal Code, R.S.C. 1985, c. C46, as am., are as follows:
151. Every person who, for a sexual purpose, touches, directly, with a part of the body, any part of the body of a person under the age of 16 years

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of 45 days.

[4]

The Agreed Statement of Facts entered in this matter reads as follows:

In the Fall of 2009 E.A. was 14 years old and was involved in the Stephenville area Air Cadets, as well as Badminton at her school. At one point in the Fall her Air Cadet Squadron was involved in a shooting exercise which was supervised by Army Cadet officers, the accused, T.K. (sic), being one of them. The Accused and the complainant first met when the complainant came to the accuseds house to visit their son. After this shooting exercise, and because both badminton and Air Cadets conflicted, E.A. left the Air Cadet Squadron and joined the Army Cadet

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On or between the 1st day of November A.D., 2009 and the 4th day of April A.D., 2010 at or near Stephenville in the Province of Newfoundland and Labrador did for a sexual purpose touch E.A. a person under the age of sixteen years directly with a part of his body, to wit: his penis, contrary to Section 151 of the Criminal Code.

Page: 4
Squadron. This happened, she believes, in either Late November or early December of 2009. The Accused and the complainant lived on the same street, and the complainant was friends with the accuseds son, who was in the same Army Cadet Corps. Because of this, the complainant requested rides to and from Cadets with the accused. During these trips, the accused and the complainant began to talk frequently and started to get close to one another. The complainant frequently talked to the accused about personal problems. The accused also discussed his own mental health issues with the complainant as he was suffering from depression. Shortly before 2010, in December of 2009, the accused developed a physical relationship with the complainant. The complainant indicates that the accused initiated the physical relationship, but that it was not forced upon her, and she was compliant. Over the next four months both the accused and the complainant frequently contacted each other via text message, MSN, and cell phone to arrange personal meetings. This occurred with a frequency of about two to three times a week. The complainant indicates that at least one of these two or three times would involve sexual intercourse or other sexual contact. Most often, the accused would arrange to pick the complainant up at lunch time from her school, Stephenville Middle School, and the two would spend the lunch break together. Frequently during these lunch breaks the two would engage in sexual intercourse in the accuseds vehicle, at various remote locations in the Stephenville area. The accused also engaged in sexual intercourse with the complainant at his own home on one occasion. The accused also engaged the complainant in oral sex, both him performing it on her and her performing it on him. The complainant reports that this occurred 10 to 20, and a dozen times, respectively. Over the course of roughly a 4 month period (from December 2009 to Easter, 2010) the accused and the complainant exchanged nearly 600 e-mail and text messages that indicate throughout that the two were in a mutual relationship. Several of the messages contain explicit sexual comments and remarks, both to and from the accused and to and from the complainant, and several were sent from the accused to the complainant (and vice versa) to arrange meetings for sexual intercourse and other sexual contact. The complainant could not quantify the number of occurrences of sexual contact, but stated that she would meet the accused two or three times per week for a period of four months, and that on at least one occasion throughout the week the two would have sexual intercourse and/or other sexual contact. Over the course of the relevant four months the accused was 33 years old.

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The sexual contact ended shortly following Easter 2010 and upon the return of the complainant from the Newfoundland Games. Upon return she ceased contact with the accused and quit Army Cadet Corps. The occurrences came to the attention of police in April 2010 when the complainant reported, via written letter, to her father her reasons for quitting Army Cadets and revealed that she had been in a sexual relationship with the accused. On the following day the complainants father brought her to the RCMP to report the incident. E.A. gave a statement to police outlining the details of the incidents. Police investigation revealed the majority of e-mails and text messages sent between the accused and the complainant.

THE ISSUE

[5] The main issue to be determined is what is the appropriate length of sentence for this offence and this offender.

FACTORS TO BE CONSIDERED

THE POSITIONS OF THE PARTIES

[6] Crown counsel stated that the appropriate term of imprisonment for this offence and this offender would be two years less a day. Counsel for the offender submitted that a sentence in the range of 12 to 14 months would be appropriate in this matter.

THE PURPOSE AND PRINCIPLES OF SENTENCING

[7] The following are the relevant provisions of the Criminal Code dealing with the purpose and principles of sentencing:

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Page: 6 718 Purpose The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) (b) to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders from society, where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
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(c) (d) (e)

(f)

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. 718.1 Fundamental principles A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 Other sentencing principles A court that imposes a sentence shall also take into consideration the following principles:

Page: 7 (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, ... (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years; (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim; ... shall be deemed to be aggravating circumstances; (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders... .
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(e)

THE ATKINS FACTORS

Page: 8 [8] In determining an appropriate sentence in this case, the following comments of the late Chief Justice Goodridge in R. v. Atkins (1988), 69 Nfld. & P.E.I.R. 99, 4 W.C.B. (2d) 348 (Nfld. C.A.), are of assistance:
There are many factors to be considered in imposing sentence in any case. In cases of sexual assault these factors include the extent of the assault (for sexual assault encompasses a very wide range of human misbehaviour), the degree of violence or force used, the impact of the crime upon the victim, the family of the victim and the offender, the degree of trust involved, public abhorrence to the type of crime involved, the attitude of the offender to what he has done, his plea, the biological and psychiatric factors that lead to the commission of the offence, the need for specific and general deterrence, the prospect of successful rehabilitation, the antecedents and age of the offender, the time spent in custody prior to trial and sentences imposed by other courts in Newfoundland and elsewhere in Canada. Vengeance is not a factor. A sentence is designed to protect the public, not to abate its anger at a particular crime. As has frequently been said, protection is attained through a balance of deterrence and rehabilitation. Neither should overwhelm or negate the other. The proper balance will vary from case to case.
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While the offence here is sexual interference, not sexual assault, the factors noted are equally applicable and I will now review each of these as it relates to the matter before me.

THE EXTENT OF THE ASSAULTS

[9] The incidents of sexual assault have been described previously in the Agreed Statement of Facts. They involved sexual intercourse and oral sex and occurred frequently over a period of approximately four months.

THE DEGREE OF VIOLENCE OR FORCE USED

[10] In this matter, there is no evidence of threats or force other than that inherent in sexual touching.

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THE IMPACT OF THE CRIME UPON THE VICTIM, THE FAMILY OF THE VICTIM AND THE OFFENDER

[12] The offender testified that as a result of this offence he changed careers and moved his family to a new community.

THE DEGREE OF TRUST INVOLVED

[13] Because the offender was an Army Cadet officer and the victim an Army Cadet there was a degree of trust involved in their relationship. In addition, the following facts indicate the offender had some degree of responsibility in respect of the victim: 1) The age difference between them, the offender being 33 or 34 years of age and the victim 14 years of age at the times of the commission of the offence; The victim being a friend of the accuseds son; and The victim having confided in the accused about her personal problems prior to the offence taking place.

2) 3)

PUBLIC ABHORRENCE TO THE TYPE OF CRIME INVOLVED

[14] Sexual interference with a child, like sexual assault of a child, is viewed with repugnance by society. The comments of Cameron J.A. in R. v. L.F.W. (1997), 155 Nfld. & P.E.I.R. 115, 119 C.C.C. (3d) 97 (Nfld. C.A.), are applicable here:
But I do start from the premise that sexual assault of a child is a crime that is abhorrent to Canadian society and societys condemnation of those who commit

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[11] No Victim Impact Statement was submitted in this matter and there is no evidence before me as to the impact of the crime upon the victim or the family of the victim.

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such offences must be communicated in the clearest of terms. As to moral blameworthiness, the use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worse of intentions.
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THE ATTITUDE OF THE OFFENDER TO WHAT HE HAS DONE

[15] The Pre-Sentence Report at page 6 noted:

T.K. accepts responsibility for the convictions currently before the Court . He states he understands the impact of this type of behaviour on a child and he expressed his remorse for any harm caused to this victim in this case.

The offender in his remarks to this Court clearly conveyed his remorse over his involvement in this matter and accepted responsibility for his actions.

THE PLEA

[16] The offender waived the right to a preliminary hearing in this matter and entered a guilty plea in this Court.

THE BIOLOGICAL AND PSYCHIATRIC FACTORS THAT LED TO THE COMMISSION OF THE OFFENCE

[17] The Pre-Sentence Report and the letter from the offenders doctor, Dr. Joan Kranenka, entered at the sentencing hearing state that during the time of commission of this offence the offender was experiencing a major depressive episode with anxiety features.

[18] Dr. Kranenka noted on page 3 of her letter:

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I do not feel the patients medications impaired his judgment, however, sometimes Major Depresson and anxiety itself can impair judgment in terms of negative cognitive distortions but certainly not to the degree of committing a serious criminal offense.
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THE NEED FOR SPECIFIC AND GENERAL DETERRENCE AND THE PROSPECT FOR SUCCESSFUL REHABILITATION

[19] As to general deterrence, s. 718.01 of the Criminal Code mandates that in sentencing for offences such as this, which involved the abuse of a person under 18 years of age, primary consideration is to be given to the objectives of denunciation and deterrence.

[20] As for specific deterrence, the need for this offender is relatively low. The offender has no prior criminal record. The Pre-Sentence Report at pages 6 and 7 notes as follows:
1. 2. T.K. further reports he has no history of substance abuse or gambling . He is currently attending mental health counselling sessions and he attends follow up appointments with the psychiatrist every six weeks. He reports taking all medications as prescribed for depression and anxiety . T.K. is assessed to be very low-risk to become involved in further criminal activities. There were no criminogenic factors which influence general recidivism that were identified as significant for this individual. T.K. has strengths in areas of family/marital, education/employment/, prosocial support network and attitudes, alcohol/drug dependency and criminal history. These strengths will promote his adherence to a prosocial lifestyle.

3.

4.

THE ANTECEDENTS AND AGE OF THE OFFENDER

Page: 12 [21] The offender is now 36 years of age, married with two children and seasonally employed.

[22] The offender has not to date spent time in custody in regard this matter.

SENTENCES IMPOSED BY OTHER COURTS IN NEWFOUNDLAND AND LABRADOR AND ELSEWHERE IN CANADA

[23] Counsel provided to me the cases listed in Schedule A to this judgment, each of which I have reviewed. While they are helpful in highlighting the relevant legal principles to be applied and the appropriate range of sentence for this type of offence, each case has its own unique features. I will describe two of those cases which have some similarities to the present matter but also have significant differences.

[24] In R. v. Hammond, 2011 NLTD(G) 8, Justice Dymond of this court imposed a sentence of one years imprisonment for the offence of sexual interference. Some of the similarities in that case to the present matter are that the victim was 14 years of age, the offence involved sexual intercourse, no threat or coercion was involved and the offender had no prior criminal record, pled guilty, was remorseful and was a low-risk to reoffend. An aggravating factor present there, but not here, is that the offender had supplied liquor to the victim prior to the commission of the offence. However, the present case has the following aggravating factors which place it higher on the sentencing spectrum than the Hammond case: 1) In Hammond there was one incident of sexual interference. In the present case there were multiple incidents over a four month period; and The offender in Hammond was not in a position of trust to the victim, in this case the offender was.

2)

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TIME SPENT IN CUSTODY PRIOR TO TRIAL

Page: 13 [25] In R. v. Cooper, 2011 NLTD(G) 121, Judge Stack of this court sentenced an offender, after a trial, for incidents of sexual interference involving two victims. The count most similar to the present case involved a sentence of 18 months imprisonment where the victim was 15 years of age and the offence involved one incident of sexual interference, including sexual intercourse, without force or coercion. However, again, in that matter, unlike the present case, there was only one incident of sexual interference and the offender was not in a position of trust to the victim.

MITIGATING AND AGGRAVATING FACTORS

[26] The mitigating factors in this matter are the guilty plea, the remorse and acceptance of responsibility by the offender, his lack of a criminal record and the absence of threats or overt violence in the commission of the acts of sexual interference.

[27] The aggravating factors are the breach of the trust relationship between the offender and the victim and the number of incidents of sexual interference over a four month period, including multiple incidents of sexual intercourse.

CONCLUSION RE THE TERM OF IMPRISONMENT

[28] Bearing in mind all of the factors previously described, I am satisfied that an appropriate sentence for this offender and this offence is a total term of imprisonment of 21 months.

OTHER ORDERS

PROBATION ORDER

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Page: 14 [29] There will be probation for a one year period at the conclusion of the term of imprisonment, which Probation Order shall be in Form 46 of the Criminal Code. The following shall be the conditions of the supervised Probation Order for T.K.:
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1) 2) 3)

4) 5) 6)

Keep the peace and be of good behaviour; Appear before the Court when required to do so by the Court; Notify the probation officer in advance of any change of name or address and promptly notify the probation officer of any change of employment or occupation; Attend, participate in and co-operate with any assessment, treatment or counselling program required by the probation officer; Report to and be under the supervision of a probation officer; and Have no contact or communication with E.A.

[30] In accordance with s. 732.1(5) of the Criminal Code, I direct that a copy of the Probation Order shall be given to T.K., that the Clerk provide him with an explanation of s. 732.2(3) and (5) and s. 733.1 of the Criminal Code and an explanation for the procedure for applying under s. 732.2(3) of the Criminal Code for a change in any of the optional conditions. The Clerk will also explain that failure to comply with this Probation Order is a separate offence for which the offender may be brought before the Court to be dealt with according to law.

FIREARMS PROHIBITION

[31] In accordance with s. 109(1)(c) of the Criminal Code, a Firearms Prohibition Order will issue against T.K. for the duration set out in s. 109(2)(a) and (b) of the Criminal Code whereby T.K. will be prohibited from possessing:

a)

Any firearm, cross-bow, restricted weapon, ammunition and explosive substance commencing today and continuing for ten years after T.K. release from imprisonment for this offence; and

Page: 15 b) For life, any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition.

DNA ORDER

[32] Sexual interference is a primary designated offence under s. 487.04(a)(i.1) of the Criminal Code. Accordingly, I make an order in Form 5.03 authorizing the taking from T.K. for the purpose of forensic DNA analysis of any number of samples of bodily substances that is reasonably required for that purpose by means of the investigative procedure described in s. 487.06(1).

SEX OFFENDER INFORMATION REGISTRATION ORDER

[33] Sexual interference is a designated offence under s. 490.011(1)(a)(ii) of the Criminal Code. Accordingly, where, as here, the prosecutor requests an order under the Sex Offender Information Registration Act, S.C. 2004, c-10, the Court shall make such an order unless the exception in s. 490.012(4) applies. The offender has not met the burden of establishing that if the Order were made the impact on him would be grossly disproportionate to the public interest served by registration in accordance with the Act. Accordingly, a Sex Offender Reporting Order will be issued for this offender in accordance with Form 52 of the Criminal Code. The offender will be subject to the Order for 20 years and will report, as required, to the Corner Brook Detachment of the Royal Canadian Mounted Police in this regard.

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As well, T.K. is to surrender within seven days from today anything, the possession of which is prohibited by this Order, that is in his possession and any related authorization, licence or registration certificate.

Page: 16 [34] In accordance with s. 490.018 of the Criminal Code, I direct the Clerk of the Court to: 1) 2) 3) Give the offender a copy of the Reporting Order; Read the Reporting Order to the offender unless the offender requests that he read it himself; and Inform the offender of ss. 4 to 7 and subsection 17(1) of the Sex Offender Information Registration Act and s. 490.031 of the Criminal Code.

ORDER OF PROHIBITION

[35] As the offender: 1) Was a volunteer in a position of trust or authority towards persons under the age of 16 years, including the victim, at the time of the commission of this offence; and Used a computer system for the purpose of communicating with the victim;

2)

I am satisfied an Order under s. 161(1)(b) and (c) of the Criminal Code is appropriate. Accordingly, an order shall issue prohibiting T.K. from: 1) Seeking, obtaining or continuing any employment, whether or 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; and Using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of 16 years other than his own children.

2)

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Page: 17 This Order shall be in effect for five years, commencing on the date on which T.K. is released from imprisonment for this offence.

[36] In accordance with s. 737(1) and 2(b)(ii) of the Criminal Code, a victim surcharge of $100 is imposed to be paid within 90 days of todays date. The Clerk will provide the offender with a notice in accordance with s. 737(8) of the Criminal Code.

CONCLUSION

[37] T.K., you have committed a serious criminal offence. You have been sentenced to a term of imprisonment of 21 months to be followed by one year probation. I trust this will be your last involvement with the criminal justice system. _____________________________ ALAN SEABORN Justice

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VICTIM SURCHARGE

SCHEDULE A

Crowns List of Authorities 1. 2. R. v. Atkins (1988), 69 Nfld. & P.E.I.R. 99, 4 W.C.B. (2d) 348 (Nfld. C.A.) R. v. Vokey (1999), 102 Nfld. & P.E.I.R. 275, 16 W.C.B. (2d) 121 (Nfld. C.A.) R. v. Hammond, 2011 NLTD(G) 8 R. v. Young, 2010 CarswellNfld 380, CanLII 703070 (Prov. Ct.) R. v. J.L.M. (2003), 59 W.C.B. (2d) 28, [2003] N.J. No. 204 (Prov. Ct.)
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3. 4. 5. 6.

Defences List of Authorities 1. 2. R. v. Hammond, 2011 NLTD(G) 8 R. v. R.H.W., 1998 St. J. No. 2971, 176 Nfld. & P.E.I.R. 70 (Nfld. S.C. (T.D.)) R. v. Johnson, 2000 01T No. 2366, 206 Nfld. & P.E.I.R. 185 (Nfld. S.C. (T.D.)) R. v. Young, 2010 CarswellNfld 380, CanLII 703070 (Prov. Ct.) R. v. Cooper, 2011 NLTD(G) 121

3.

4. 5.