[1] This 36 day sentencing hearing took place following the conviction by a jury on June 27, 1999, of Frank Kim for twenty seven offences against nine complainants. The offences include: sex assault with use of a weapon contrary to section 272(2) of the Criminal Code, R.S.C. 1985, c.C-46, (one count), sex assault while threatening to use a weapon contrary to section 272(2) (three counts), sex assault contrary to section 271 (four counts), assault contrary to section 266 (one count), unlawful confinement contrary to section 279(2) (two counts), touching a person under the age of fourteen for a sexual purpose contrary to section 151 (four counts), obtaining for consideration the sexual services of a person under the age of eighteen contrary to section 212(4) (nine counts), uttering a threat to cause death or bodily harm contrary to section 264.1(1)(a) (two counts), and possession of a prohibited weapon contrary to section 90(1) (one count).

[2] The Attorney General of British Columbia consented to an application being made under section 752.1(1), Part XXIV of the Criminal Code that the court form an opinion as to whether there are reasonable grounds to believe that Frank Kim might be found to be a dangerous offender or a long-term offender for purposes of an assessment on June 29, 1999. This application was granted on July 9, 2000. On September 29, 2000, The Attorney General consented to an application under section 753 of the Criminal Code that the court find Frank Kim to be a dangerous offender.

[3] The Crown seeks to have Frank Kim declared a dangerous offender and to impose a sentence of detention for an indeterminate term for nine offences including sex assault with a weapon, sex assault while threatening to use a weapon, unlawful confinement, and sex assault. In addition, the Crown seeks the following sentences: three years concurrent for each of nine counts of obtaining for consideration the sexual services of a person under the age of eighteen, and six months to two years concurrent for assault, uttering a threat to cause death or bodily harm, and possession of a prohibited weapon. Finally, the Crown wants a sample of Kim's DNA to be taken pursuant to the newly proclaimed section 487.052 of the Criminal Code.

[4] Frank Kim seeks a conditional sentence of less than two years imprisonment with immediate release in consideration of time served with the conditions being that he maintain full employment and remain under the supervision of his mother.

[5] The Crown conceded that convictions for counts 7, 18, 23, and 29 under section 151 of the Criminal Code for touching a person under the age of fourteen for a sexual purpose cannot stand in the face of convictions for sex assault under section 271. I agree. The Crown has also conceded that count 30, unlawful confinement, falls under the rule because of a conviction for sex assault for the same incident. I am prepared to accept this concession. In view of these concessions, I will consider the facts of these offences within the sentencing.

[6] Frank Kim argued that the offences under section 212(4), obtaining for consideration the sexual services of a person under the age of eighteen, was duplicitous with counts of sex assault with threat to use a weapon and sex assault as related in counts 1 and 3, counts 6 and 8, counts 11 and 12, counts 14 and 15, counts 16 and 17, and counts 21 and 22. I disagree. The elements of section 212(4) include the requirement for consideration not found in sex assault. This distinguishes section 212(4) from sex assault (see R. v. Prince, [1986] 2 S.C.R. 480, 30 C.C.C. (3d) 35 at 46 and 49; R. v. Andrew (1990), 57 C.C.C. (3d) 301 at 305 (B.C.C.A.)). This distinguishing element is not covered by one of the four types of situations enumerated by Chief Justice Dickson in R. v. Prince, supra at 49-51 as described by Lambert, J.A. in R. v. Andrew, supra at 306.

[7] The defence also submitted that count 4, unlawful confinement, was duplicitous with count 3, sex assault while threatening to use a weapon, because it was sufficiently proximate as between the facts. The Crown did not concede this, although she did concede unlawful confinement as sufficiently proximate as between the offences both on this count and count 30. The issue, then, is whether there is sufficient proximity in fact between the two counts. In R. v. Worobec (1991), 63 C.C.C. (3d) 412 (B.C.C.A.), the offender was convicted of threatening to use a weapon in committing sexual assault (section 272(a)) and forcible seizure (section 279). The court rejected the defence submission that the two offences were all part of a single transaction leading to the charge of sexual assault with a weapon in the circumstance where the offender grabbed the complainant and forced her through a fence where he then maintained control over her for between five and ten minutes either by direct application of force or threat of use of a knife.

[8] The evidence of the Crown, apparently accepted by the jury in the face of a denial by the offender that this ever happened, was that SM was given drugs for sex with Frank Kim and was engaged in sex with him for longer than she wanted. After half an hour, she told him to stop. He told her to "shut up" and continued for another twenty minutes. She again told him to stop. He again told her to "shut up". The complainant was very mad by this time and pushed Kim off her and told him to stop. He again told her to shut up. She felt that she had to continue because she had already smoked the drugs. But, she started to put on her clothes. Kim told her that she was not leaving until she had more sex with him. They were arguing and SM tried to talk her way of the situation. She tried to leave but Kim would not let her. He threatened to get his gun. Kim started to strangle her on the couch using both his hands. She was yelling and screaming. The complainant said that she was purple before Kim stopped. She was crying as Kim continued to have sex with her until he was finished. The whole incident lasted four hours.

[9] In these circumstances, I conclude that it is not a proper situation to enter a stay of proceedings. The sexual assault does not encompass the confinement by strangulation as they are separate wrongful acts, even though the strangulation formed part of the sequence of actions which constitute sex assault while threatening to use a weapon. When the offences are considered in the context of these facts, the unlawful confinement cannot be considered as merely a particularization of the sex assault.

[10] Frank Kim also argued that counts 11 (obtaining for consideration the sexual services of a person under the age of eighteen) and 13 (uttering a threat) were duplicitous. I reject this submission outright as they involve separate incidents two weeks apart and are quite different offences.

[11] A stay of proceedings is entered on counts 7, 18, 23, 29, and 30.

[12] The Crown seeks to have Frank Kim declared a dangerous offender for offences of sex assault while threatening to use a weapon (counts 3, 12 and 20), unlawful confinement (count 4), sex assault with a weapon (count 15), and sex assault (count 6, 17, 22 and 28). The time of these offences is significant to determine whether the dangerous offender legislation that existed prior to August 1, 1997 applies. It may also be significant to the diagnosis of paedophilia made by the expert psychologist in this case. The offences will be described in chronological order so as to make assessment easier.

[13] In determination of the facts on this sentencing, I am bound by the express and factual implications of the jury verdict (Brown v. The Queen, [1991] 2 S.C.R. 518, 66 C.C.C. (3d) 1 at 5; R. v. M.(G.L.) (1999), 138 C.C.C. (3d) 383 at 386 (B.C.C.A.)). The burden of proof on disputed facts is on the Crown to prove beyond a reasonable doubt. I am obliged to give the offender the benefit of the doubt regarding the basis upon which he was convicted by the jury when dealing with disputed facts (R. v. Cooney (1995), 98 C.C.C. (3d) 196 at 203-204 (Ont. C.A.)). This does not mean that the offender may retry the case on sentencing (R. v. Gauthier (1996), 108 C.C.C. (3d) 231 at 240 (B.C.C.A.)).

[14] It should be stated at the outset that Frank Kim denied in his testimony at trial that sexual acts took place with any of the complainants except those whom he filmed having sex with him on videotape. In those cases, he said that the sex was consensual. This video was in evidence before the jury. Kim also said that he asked each complainant to show him identification to prove that they were nineteen and that each complainant produced their BC identification card indicating that they were nineteen. This evidence was obviously rejected in its totality by the jury. There is no doubt that Frank Kim lied throughout his testimony and that the jury did not believe him. These lies went right down to suggesting that it was the police who messed up his condominium by throwing chip bags, used condoms, and other junk all over the floor of his filthy apartment. I will not rely on the evidence of Frank Kim.

[15] Frank Kim picked up thirteen year old MF on "the kiddy stroll", an area known for young prostitutes in Vancouver, in late spring or early summer 1997. She recalled that Kim drove a white BMW, thus placing her first meeting before June 24, 1997, the date that Kim's car went in for repair. Kim and MF arranged that she would give him a "lay" for $40. Kim took her to his house in Richmond where sexual intercourse took place on Kim's bed. Kim paid her for the sex. This occurred five more times with paid intercourse at Frank Kim's house. MF used drugs every time that she was with Kim. This occurred over a couple of months, ending in September 1997 according to the recollection of her last meeting with Frank Kim when she threatened to tell police that Kim was having sex with underage girls after he hit her and threatened to leave her at the docks.

[16] Thirteen year old SK was posing as a prostitute with her twelve year old cousin when Frank Kim pulled up in his car and asked her how much. SK was not planning to have sex with anyone but planned to somehow steal the money. She got into his car but told him that she didn't want to go as far as Richmond as Kim suggested. He kept driving and offered her $100 to have sex. He got money from a bank machine and gave her $80, offering to give her the rest later. Kim took SK to his house in Richmond and brought her upstairs to his bedroom. Kim spoke to his father in another bedroom. This is a small condominium with two bedrooms close together on the second floor. Kim manipulated SK to take off her clothes by telling her how beautiful she was and said that he wanted to video her face. SK agreed, understanding that Kim was just videoing her face. But, he proceeded to video SK naked on his bed without her knowledge. He then told her that he wanted to have sex. She said "no". Kim told her that that was not why he brought her there and told her that he would shoot her if she did not have sex with him. He told her that he had a gun in his car. She was crying. He had sex with her. He then returned her back to the prostitute stroll.

[17] There was a dispute about the timing of this incident. SK and her cousin testified that this occurred in late spring or early summer, 1997. However, SK follows KB on the videotape and there was testimony by the Crown expert that the video was linear without editing. This meant that it was chronological as it appeared on the tape. KB testified that she was picked up by Frank Kim on the kiddy stroll in September 1997 according to her recollection of it being the day that Kim got his white BMW out from repair. Accordingly, I conclude that this event occurred in September 1997.

[18] The next time that Kim had sex with thirteen year old SK was a couple weeks later when he again picked her up on the stroll. This time she brought her cousin with her. Kim gave her $40 and took her to a dealer to purchase drugs. He then paid for some food. They agreed to go to Kim's house. On the way, Kim showed her the gun in his glove compartment. He took the young girls to his bedroom where they smoked the drugs and he read from a book which he described as a bible that he had written. Kim claimed that he was god. Kim told them that he wanted to have sex with one of them because one of them had to pay for the drugs. Things started to get serious when the girls said that they wanted to go home. Kim pulled SK by the arm into another bedroom, saying that he wanted to have sex with her. She said no. He told her that he would shoot her if she did not have sex with him and reminded her that he had a gun in the glove compartment. Kim put her on the bed and held her down. She was struggling, scared, and crying. He forced intercourse upon her.

[19] LF was fourteen years old when Frank Kim picked her up at a busstop near the kiddy stroll in late November 1997. Kim was with SM, a fourteen year old prostitute whom Kim had hired on many occasions since January 1997. Kim gave LF money for crack cocaine and took the group to Richmond where he went upstairs with SM, leaving LF smoking the drugs downstairs. LF returned to Kim's house more than once, sometimes sleeping there. She had intercourse with Kim four times in his bedroom and gave him oral sex three times. She was given food and drugs for the sex. On one occasion, he paid her with a Burger King hamburger for oral sex. Another time, Kim told another male present, JV, to "get that bitch to fuck me". JV placed a stun gun on LF's leg and Kim kicked her. She then gave him oral sex in his bedroom. On another occasion, sex was had with Kim on the living room couch while JV filmed the scene on video, unknown to the complainant. Kim took a very long time and when LF complained, she was offered more cocaine. She received cocaine for the sex and the filming. As was his practice, Kim used at least two condoms.

[20] Twelve year old SG was with LF when Frank Kim picked them up on the streets of Vancouver near the beginning of December 1997. LF had told Kim that she had a young girl for him. He was told that she was twelve and he agreed to pay her for sex. He gave them money for drugs which they purchased. At Kim's house in Richmond, SG had intercourse in the bedroom. Kim then offered SG more money if she would have sex with him while being videotaped. The money translated into rock cocaine as the video demonstrated that SG got more rock cocaine the longer that she had sex and more for anal intercourse. LF operated the recorder as Kim engaged in intercourse and anal sex with SG. SG stayed the night and spent more nights at Kim's house after that. She engaged in sex with Kim five more times with Kim giving her money and taking her to buy drugs in exchange.

[21] Near the end of December, SG was at Kim's house along with a number of girls and JV. Kim told her that she owed him sex from another night and said that she had to have sex with him before she left. She refused. Kim took her by the arm upstairs to the bedroom that held a safe in the closet. He pushed her onto the bed, called her "bitch" and told her to take off her clothes. SG said "no". Kim then told her that his safe was right there, that he could open it, and she would be gone in seconds. He had told her before that he had a gun. He told her again to take off her clothes. She did. Intercourse took place. Kim did not pay for it.

[22] KT was introduced to Kim through JV, whom she thought of as her boyfriend. She was thirteen. Kim and JV picked her up and gave her money to buy rock cocaine. She and JV smoked the cocaine on the way to Kim's Richmond house where Kim asked JV to ask KT to do a "trick" with him, namely to have sex for money. JV told KT that she had to pay for the rock cocaine that they had smoked. Kim took her upstairs and had intercourse with her. He told her how beautiful she was. She and JV stayed at the house for two days that first time. KT returned to Kim's house three more times and had sex with him each time. Each time it was to pay for the rock cocaine that Kim had provided the money for. Kim told her that "Crack [cocaine] to you is like sex to me". On one occasion, she had anal intercourse with Kim who paid JV an extra $10 for it. There was also at least one time that KT had sex with Kim without payment. During these times at Kim's house, he read from the bible in his underwear. At one time, KT told Kim that he liked young girls, to which Kim replied that "[she] wouldn't be there if he didn't". On the last occasion that KT had sex with Kim, she got fed up with it, pushed him off, and went downstairs. Kim came downstairs after her and said: "Fuck you bitch, you're not so pretty, fucking hoe. Sex to me is like crack to you. If you don't do this, I'm not driving you home". KT left the house with another girl, hiding on Frank Kim who came looking for them in his car.

[23] SM was fourteen in early January 1997 when Frank Kim picked her up as a prostitute on the kiddy stroll. A deal was made for money for sex and Kim had sex with her at her house. This was the only time that Kim had sex other than in his own house according to the evidence. SM saw Kim on and off throughout 1997 when she was doing drugs. He gave her money for drugs and she gave him sex in return. After she once had the drugs without giving Kim sex, he thereafter withheld the drugs until she had sex with him. He paid her less and less for the sex as time went on because he realized how much she needed the drugs. By November 1997, Kim started to take advantage of her more. He was demeaning to her, told her that he was god, that he was better than her, that he had power and money. It was on December 12, 1997 that the strangulation and sexual intercourse described above took place. After this event, Kim laughed as he told a friend of SM's that it was the best sex that he ever had and then stated that he was god and began to read from the bible. He repeated this comment again to SM and her friend in a three-way call.

[24] After these events, SM returned to Frank Kim's house to party and do drugs. Kim told her that she owed him sex from the last time. She refused and a physical fight ensued as Kim tried to force her to have sex with him. This incident is not a predicate offence but does form part of the pattern of conduct and is circumstantially relevant. A full description of the incident is given in part 4 of this judgment.

[25] On December 31, 1997, Frank Kim picked up DD in Delta after she and a friend had called him. Kim, JV, and two other girls were in the car. They stopped to buy rock cocaine before going to Kim's house. Kim supplied the money. DD tried the rock cocaine for her first time. She was twelve, in grade seven. DD sat talking with KT and MM at Kim's house for awhile before Kim asked her what he would get in return for picking her up in Delta and told her that she would sleep with him. DD said "no". Kim got mad. He threatened that if she didn't sleep with him, he would kill her or her soul. DD was scared, upset, and crying. Kim repeated that he would kill her soul and persisted in threatening her for twenty minutes. He told her that she would walk home if she didn't have sex with him, that he would kill her and her soul, and that she didn't know him. He repeated that he didn't drive all the way to Delta for nothing. Others in the house confirmed these threats and this conduct. At one point, DD tried to leave. She repeated that she did not want to have sex with him but eventually went to his bedroom, scared and crying. Kim told her to take off her clothes. She asked why he was doing this and Kim replied, "Trust me, I'll kill you". He told her that this was not a threat but a promise. Intercourse then took place for at least thirty minutes. DD was crying at first. She tried to push Kim off but he held her down by the shoulders. KT walked into the room during all this and Kim told her to "Get the fuck out". After it was over and Kim had showered, he said: "Sorry, I didn't mean to".

[26] These facts have been detailed to fully appreciate the circumstances surrounding the offences so that the pattern of conduct may be determined. I have not relied on evidence of other occasions when Frank Kim picked up young women or visited the kiddy stroll as testified to by Mike Thorneycroft at the sentencing hearing or as suggested in the statement of Michael Collins. Nor have I relied upon evidence that Frank Kim 'pimped' or acted as a lookout for the girls on occasion. I have not relied upon evidence that Kim sexually offended in Korea, was involved with prostitutes in South Africa, or made sexual overtones to his sister. Nor have I relied upon the evidence contained in the inmate log. The Crown has not proven breach of bail conditions. Finally, I have not detailed other offences under section 212(4) except to note that they involved picking up underage, drug addicted, prostitutes in the areas of Vancouver known for prostitution of young females, engaging in sex with them afterwards at Kim's home, and paying them by giving them money to buy drugs and assisting them to buy the drugs.

[27] Frank Kim is twenty seven years old. He was born in Kitchener, Ontario to Korean parentage. He has spent most of his life in Canada except for a few years in Korea. He does not speak Korean and was so uncomfortable within the Korean culture that he returned to Canada without his parents. He graduated from high school in 1990 through correspondence in his last year because of difficulty attending school after a move to Korea and then back to Canada. He attended some post-secondary schooling after that but I am not aware that he completed any courses. There is no suggestion that this was due to lack of intelligence. There is no evidence that he has ever worked or been employed. His parents have maintained him. His father remains in Korea overseeing real estate properties. His mother is in Canada without any legal status, having revoked Canadian citizenship in 1990.

[28] She testified that she was not sure whether Frank Kim had ever had psychiatric treatment or care despite information from her daughter that Kim had attended for psychiatric care some few years ago. Frank Kim informed Dr. Leay during assessment for fitness to stand trial that he had been psychiatrically hospitalized in the past. It was apparent from Mrs. Kim's testimony and attendance throughout the trial that Frank Kim dominates her and that she exercised no control over him. She was aware of his manuscript entitled "The Secrets of Life" but said that she never bothered to look at it. Nor did she bother to read the psychologist's report in this case. At the time of these offences, Frank Kim's father gave him $60,000 for living expenses. Kim told police that he received $7,000 per month from his parents. Kim used part of the money to buy a white BMW with a loud stereo system that he used to lure the young complainants to him. Although the parents suggested by affidavit that they would not fund Frank Kim in an extravagant lifestyle, there is no indication of what exactly that means and no indication of family income. It does indicate that they intend to continue to provide Frank Kim with support despite these offences, his age, and his lack of responsibility for himself. Frank Kim has never been disadvantaged. In fact, he has been given every advantage but not used them. He is a bored, spoiled, self-centered, egotistical man who appears to have never contributed anything to anyone. Frank Kim did not testify at the sentencing proceedings.

[29] The present provisions of the Criminal Code, Part XXIV-Dangerous Offenders, came into effect on August 1, 1997. The procedural provision of section 752.1(1) and (2) were applied to Frank Kim so that a court ordered assessment of Kim took place. The psychologist, Dr. David Lawson, performed the assessment and reported to the court in September 1999. He testified before me during these sentencing proceedings.

[30] Both Crown and defence agree, however, that the substantive provisions of the new dangerous offender legislation should not apply to Frank Kim if the predicate offences or offence occurred before August 1, 1997. This would give Frank Kim the advantage of the old section 753 that gives the court a discretion as to whether to impose a sentence of detention for an indeterminate or a determinate period. Under the new section 753(4), if the court finds the offender to be a dangerous offender, it shall impose a sentence for an indeterminate period. The definition of "personal injury offence" in section 752 and the circumstances in which the court may find an offender to be a dangerous offender in section 753 remain unchanged. Neither the Crown nor defence argued that the new long-term offender category applied to Frank Kim. However, the Crown went so far as to suggest that Kim receive the benefit of both the old and new sections because his offences occurred both before and after August 1, 1997.

[31] The British Columbia Court of Appeal said that an offender is entitled to any benefit that the new changes brought while the offender was in the system (R. v. George (1998), 126 C.C.C. (3d) 384 at 396 (para 29)(B.C.C.A.)). In R. v. Turley (1999), 136 C.C.C. (3d) 426 at 433 (B.C.C.A.), the court applied the long-term offender categorization to an offender even though the legislation had changed since the dangerous offender proceeding had been heard in provincial court. The court considered the long-term offender designation to he analogous to a finding of a lesser included offence on a dangerous offender application. Madam Justice Downs also concluded that it was open to her to designate an offender as a long-term offender despite the predicate offence occurring prior to August 1, 1997 if she did not find him to be a dangerous offender in R. v. Grant (July 27, 1998), Courtenay Registry, 20779DC-I (B.C.S.C.), [1998]B.C.J. No.3239 (Q.L.). In R. v. Neve (1999), 137 C.C.C. (3d) 97 at 117 (Alta.C.A.), the court was prepared to offer the benefits of the new sections to an offender whose sentencing proceedings occurred before August 1, 1997 while preserving application of the beneficial old sections as well. Section 11(i) of the Charter provides that an offender is entitled to the benefit of the lesser punishment if the punishment for the offence has been varied between the time of commission of the offence and the time of sentencing. In R. v. Schwartz (January 12, 2000), Vancouver Registry CC940511 (B.C.S.C., 2000 BCSC 40), this court concluded that the offender was entitled to application of the law as it existed substantively at the date of the predicate offence. It was not necessary to consider whether the new long-term offender legislation applied because the offender was found to be a dangerous offender. The same conclusion on application of the old provisions was reached in R. v. White (November 13, 1998) Campbell River Registry X23522D (B.C.S.C.),[1998]B.C.J.No.3209 (Q.L.) and in R. v. Gibbon (June 26, 1998) New Westminster Registry X048266 (B.C.S.C.,[1998] B.C.J.No.3210 (Q.L.)). When the predicate offences occurred both before and after August 1, 1997, the court applied the old provisions in R. v. Veevee, [1999] Nu.J. No.2 (N.Ct.Just.)(Q.L.).

[32] From these cases, I conclude that Frank Kim is to receive the benefit of the old sections when it comes to the exercise of discretion as to whether an indeterminate or determinate term shall be imposed following a finding that he is a dangerous offender. This is because at least one of his offences occurred prior to August 1, 1997. If I do not find that he is a dangerous offender, I may still apply the new long-term offender rules to determine Frank Kim's status.

[33] Dr. David Lawson, psychologist, reported to the court pursuant to section 752.1(1) of the Criminal Code. The purpose of his report is to provide the judge with an expert opinion on the interpretation of past conduct and the likely future conduct of the offender based upon his past behavior (R. v. Neve supra at 160). He acknowledged that his assessment was limited in value due to the failure of Frank Kim to cooperate by interview, the failure of his family to respond to requests for information, and the inherent limitations of risk assessment tools. He did, however, have access to the transcripts of trial that revealed, among other things, much about the pattern of behavior and character of Frank Kim. Certainly, it is my assessment of this conduct and character that prevails. However, the evidence of Dr. Lawson was helpful in this regard to affirm my own conclusions based upon Kim's past conduct in commission of these offences and at trial (see R. v. Vickers, [1998] B.C.J. No.549 (B.C.C.A.),(1998)105 B.C.A.C. 42; also R. v. D.P.F. (1992), 101 Nfld.& P.E.I. R.91 (Nfld.S.C.)). Dr. Lawson's assessment of past conduct was based upon a generally accurate review of the evidence at trial and provided insight into the reasons for that conduct. The documents used by Dr. Lawson were before me and appeared to be complete with the exception of interview notes of LF's social worker. His use of transcript testimony was generally fair but he did use pre-trial statements of witnesses without comparing them to transcript testimony. This does not, however, appear to have resulted in significant discrepancy. Assessment of credibility was apparent in the decision of the jury and I do not find that the psychologist made errors in that regard

[34] The weight to be given Dr. Lawson's report is undoubtedly affected by the degree to which he relied upon second-hand source material, the few errors that he made in assessment of the facts, and the limited consultation. Since I was the trial judge, it is easier for me to assess the psychologist's use of secondary information. It is also noted that he relied upon offences that are not predicate offences but were offences committed by Frank Kim during his year of criminal conduct. Some of the information upon which the psychologist relied has not been satisfactorily proven before me, particularly prior sexual offending in Korea, involvement with prostitutes in South Africa, sexual overtones to his sister and breach of bail conditions. Also, there is no evidential indication that Frank Kim defended himself before. I have taken Dr. Lawson's and others' descriptions of Frank Kim's conduct at trial with a grain of salt. I place no reliance upon Kim's conduct under detention except, perhaps, to note that he has been a reasonably good inmate.

[35] There was no other expert testimony or assessment available to me except for the very limited fitness to stand trial report. Dr. Lawson's evaluation was thorough and thoughtful. He demonstrated an understanding of the legal concepts and understood the limits of his expertise. He was careful and responsive throughout lengthy cross-examination and acknowledged deficiencies and possible alternative interpretations in his report. His opinion is of assistance to me.

[36] Frank Kim strongly attacked Dr. Lawson's conclusion that Kim is a paedophile. This attack was based largely upon the acknowledged requirement of a six month pattern of paedophilic behavior or ideation in order to found a diagnosis. As shown above, the six month pattern of paedophilic behavior exists in this case. Even if it did not, there is evidence of paedophilic ideation prior to this time period in Kim's repeatedly watching a porn video of a very young girl having sex with an adult male while Kim was himself having sex with SM and Kim's well known preference for young girls as testified to by SM, his first young prostitute. The suggestion that this diagnosis was "soft" because at least one of the young girls included for purposes of this diagnosis had reached puberty as indicated by her description of the onset of menstruation during her first incident with Kim was rejected by Dr. Lawson because her age was still within the diagnostic criteria. Dr. Lawson was careful not to use the most strident criteria for diagnosis of this form of paraphilia. While Dr. Lawson admitted that Kim arguably does not meet the diagnostic criterion, he is certainly sexually deviant and has demonstrated continuing strong paedophilic behavior and tendency.

[37] Frank Kim also has an abnormally high sex drive. He told his victims that he needed to have sex three times a day and said that sex to me is like cocaine to you. He used two or three condoms so to prolong the sex act. Frank Kim called himself a "sex maniac". Dr. Lawson said that this was a preoccupation and not an obsession. Kim was bored with ordinary sex and wanted to explore "kinky sex". He sought more stimulation and novelty as time went on. He told the court that he got bored with some of the complainants quickly.

[38] Dr. Lawson said that Kim's need for power exhibited itself in his offences. His perception of power over these poor, young victims came initially through his money, his car, and his own place to go. He used the victims' reliance on drugs to get them to do things that they did not initially want to do. However, as time went on, he realized that he did not have to pay so much and used humiliation, degradation, and manipulation to get what he wanted. This transference of the exhibition of power from financial to psychological based upon Kim's understanding of the degree of deprivation of his victims reduces financial circumstances as a key to the risk Frank Kim poses. It highlights the fact that Frank Kim is an intelligent, self-gratifying manipulator. It is this aspect of Frank Kim that poses a real danger. He enjoyed exercising ultimate control over his victims as evidenced in the strangulation of SM, a sadistic act according to Dr. Lawson. Frank Kim called it "the best sex that he ever had". However, Frank Kim did not meet the diagnosis for a sadist based upon this single act of gratification through another's pain.

[39] Dr. Lawson also found Frank Kim to have a dominant attitude towards females in general as exhibited in his conduct towards the complainants. This is supported by Kim's attitude during the offences when he clearly was interested only in his own sexual gratification regardless of the female involved.

[40] The strongest diagnosis of Frank Kim was that of narcissistic personality disorder. This came primarily from the sense of grandiosity, preoccupation with fantasies of unlimited success, recognition, and power, the attitude of entitlement, interpersonal exploitation, and lack of empathy exhibited in the offences and their surrounding circumstances. The use of Frank Kim's statement to police to support this diagnosis was warranted. In it, Frank Kim likened himself to King David and his case to O.J. Simpson's. Frank Kim's suggestion, unsupported by evidence, that being both a Christian and a narcissist is irreconcilable, is absurd. Furthermore, there is no evidence that Frank Kim is a Christian despite his readings from the Bible and his meeting with Jacob Kang, pastor of his mother's church. The kind pastor described Kim as "new age", more akin to Hindu due to his persistent belief that he was god.

[41] Dr. Lawson expressed particular concern over the act of sadism in relation to SM as indicative of the high level of risk that Frank Kim poses to society. This act came near the end of a series of sex acts, escalating from the ordinary, to "kinky", to sadistic. When combined with a narcissistic personality that thrives on the exercise of power over another, the risk of recidivism is increased according to Dr. Lawson. This opinion is without authority. Dr. Lawson considered that evidence of past conduct was the best indicator of risk. However, he also used actuarial and clinical instruments to assess risk in this case. He revised his score downwards on the Minnesota Sex Offender Screening Tool Revised (Mn-SOST-R) to suggest that Kim had a seventy percent likelihood of re-offending within six years. He was unable to verify this assessment with another test because of the refusal of Kim to cooperate. Dr. Lawson also used the clinical risk assessment tool called the Sexual Violence Risk - 20 (SVR-20) as a guideline to assess the risk of re-offending posed by Frank Kim. Based upon this tool, Frank Kim represents a moderately high risk to re-offend. The findings from these two instruments were consistent as between themselves and as to Dr. Lawson's opinion based upon past behavior. I have taken his assessment of risk based upon empirical and clinical tools as informative only given the acknowledged inherent limitations of these instruments.

[42] Dr. Lawson considered that Frank Kim was unlikely to be receptive to treatment. He refused to co-operate with the court ordered assessment. He has repeatedly said that god has deemed him innocent. He does not have realistic plans for the future. The narcissistic personality disorder would undermine any treatment for paedophilia so that it was unlikely to be successful. Treatment for the two problems is complex, time consuming, and uncertain of success. Intensive treatment programmes available for sex offenders require acknowledgment of the offences as a criteria for admission. The programmes involve intensive group therapy with other adult men such that Frank Kim could expect to have great difficulty given his preferred socialization with much younger people and lack of social skills.

[43] There is plenty of evidence to support the conclusions of Dr. Lawson. Each of his conclusions were based upon evidence before me. The fact that extraneous evidence was considered by the psychologist goes to the weight that I give his evidence. So too, does the fact that Kim was neither interviewed nor participated in basic testing. Although Kim argued before me that the fact that he was not interviewed means that the psychologist's report is meaningless, this is not so (R. v. Neve supra at 165-166). The fact that Kim refused to be interviewed is a factor for me to take into account. I have not, however, drawn an adverse inference from the fact (see R. v. L.M.T., (1996), Alta.L.R. 246(Alta.Q.B.)). When Dr. Lawson relied upon evidence that I have not relied upon such as inmate history, unfounded behavior, or the statements of Thorneycroft or Collins, there was other evidence also in support of his position such that the overall effect of his opinion is not unduly compromised. On the whole, I found his assessment to be reasonable and accurate despite the limitations of the report. His assessment is helpful to confirm my own assessment of Frank Kim.

[44] Before embarking on an analysis of the applicable dangerous offender sections of the Criminal Code as applied to Frank Kim, it is important to remember that the dangerous offender designation is intended to apply to that very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration (Lyons v. The Queen (1987), 37 C.C.C. (3d) 1 at 29 (S.C.C.)). The legislation enables the court to accommodate its sentence of an offender to the reality that the offender is not inhibited by normal standards of behavioral restraint such that future violent acts can quite confidently be expected of that person (Lyons supra at 22-23). The process is intended to capture those offenders at the extreme end of criminality in this country (R. v. Neve supra at 124 (para 59)).

[45] The burden lies on the Crown to satisfy the court as to dangerousness within section 753 on the standard of proof beyond a reasonable doubt (R. v. Carleton (1981), 69 C.C.C. (2d) 1 at 6 (Alta. C.A.), aff'd [1983] 2 S.C.R. 58; R. v. Sullivan (1987), 37 C.C.C. (3d) 143 (Ont.C.A.); R. v. Oliver (1997), 114 C.C.C. (3d) 50 at 55(Alta. C.A.); R. v. Noyes (1991), 1 B.C.A.C. 81 (B.C.C.A.)).

[46] To open the gate for further analysis of Frank Kim as a dangerous offender, the Crown must establish that the predicate offence(s) qualifies as a "serious personal injury offence" within the meaning of section 752(a) or (b) of the Code. The pertinent part of that section says:

"serious personal injury offence" means

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person

and for which the offender may be sentenced to imprisonment for ten years or more, or

(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).

[47] Frank Kim has been convicted of eight counts defined by section 752(a) to be serious personal injury offences. These include: sex assault with threat to use a weapon against SM (count 3), sex assault against MF (count 6), sex assault with threat to use a weapon against SK (count 12), sex assault with use of a weapon against LF (count 15), sex assault SG (count 17), sex assault with threat to use weapon against SG (count 20), sex assault KT (count 22), and sex assault against DD (count 28). These offences also fit within the definition of a personal injury offence in section 752(a).

[48] Frank Kim has also been convicted of one count which fits within the definition of a serious personal injury offence in section 752(a) with the unlawful confinement of SM (count 4). The violence inflicted upon SM, that is the strangulation and other restraint during sexual assault, certainly qualifies as objectively serious. Also, the level of endangerment involved here is significant when it is recalled that SM turned purple before Kim stopped. The potential consequence of this conduct is obvious. This is serious violence.

[49] The Crown notified Frank Kim that she sought to have him declared a dangerous offender under section 753(b) of the Criminal Code. Prior to August 1, 1997, that section provided:

753 Where, upon an application made under this Part following the conviction of a person for an offence but before the offender is sentenced therefor, it is established to the satisfaction of the court

. . .

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his conduct in any sexual matter including that involved in the commission of the offence for which he has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of his causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses.

the court may find the offender to be a dangerous offender and may thereupon impose a sentence of detention in a penitentiary for an indeterminate period, in lieu of any other sentence that might be imposed for the offence for which the offender has been convicted.

[50] The sentencing judge need not focus on the objective seriousness of the predicate offences in order to conclude that an offender is dangerous under section 753(b) (R. v. Currie (1997), 115 C.C.C. (3d) 205 at 214 (S.C.C.)). Once the Crown has established that the offender has been convicted of a personal injury offence, the focus of inquiry is whether there is a likelihood that the offender will cause pain, injury, or other evil to other persons through his failure in the future to control his sexual impulses.

[51] "Failure to control" involves a straight factual investigation (R. v. Oliver supra at 56; Klippert v. The Queen, [1968] 2 C.C.C. 129 (S.C.C.)). "Likelihood of causing injury, pain, or evil to any persons through failure in the future to control his sexual impulses" is determined by looking at the offender's present condition, not the probability of successful treatment (R. v. Oliver supra at 57).

[52] The sex assaults by Frank Kim were not isolated incidents. This was part of a continuing course of behaviour over seven months. Kim operated by stalking the kiddy stroll of Vancouver, attracting underage prostitutes with his car and money. He facilitated the purchase of drugs, then took the complainants back to his house where he sexually assaulted them. Most of the complainants were on drugs at the time of the assaults. Each count of sex assault involved more than one incident. He was not deterred by the word "no". As time went on, the offender engaged in sex assaults for others to see by videoing his conduct, indicating of a lessening of control. He sexually assaulted and threatened with a weapon with his father in the next bedroom. He assaulted with others in the house who were aware of what was occurring. In fact, he told KT to get out so that he could continue his assault of DD. DD was not even a prostitute but Kim wanted sex with her and was going to have it regardless that at least four other young people were in the house. The assaults got more brutal in the last month of December when Kim appears to have disregarded all constraints and had his way with SM, DD, KT, and SG. His statement to DD that "he didn't mean to" indicates an acknowledged failure to control himself. Similarly, his continuation of sex while strangling SM and his statement afterwards that it was the best sex that he ever had indicates complete failure to control his sexual impulses and enjoyment of that fact.

[53] The psychological evidence supports the conclusion that Frank Kim has shown a failure to control his sexual impulses and, given the nature of his problems, will likely fail in the future to control them. There has been no development of Frank Kim since these incidents that suggests otherwise. He continued to blame the complainants for his conduct. His attitude towards young women is that they are there to satisfy him sexually regardless of anything else. He shows no insight into these offences or into his psychological problems. This reflects his paedophilic tendencies and narcissistic personality disorder. These overwhelming conditions are not answered by the fact that Frank Kim is a first time offender.

[54] Dr. Edney testified as to the psychological harm inflicted on these complainants as indicated from their victim impact statements. Her evidence was uncontradicted and I accept it. She opined that the complainants who provided victim impact statements suffered severe psychological effect from Frank Kim's sexual abused which was separate from any effect of drug or alcohol abuse.

[55] I find beyond a reasonable doubt that Frank Kim has been convicted of serious personal injury offences. They show a failure to control his sexual impulses. There exists a likelihood of his causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses.

[56] The Crown also notified Frank Kim that she sought to have him declared a dangerous offender under sections 753(a)(i) and 753(a)(ii). The Crown did not place primary emphasis on section 753(a)(ii). These sections say:

753 Where, upon an application made under this Part following the conviction of a person for an offence but before the offender is sentenced therefor, it is established to the satisfaction of the court

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

(i) a pattern of repetitive behaviour by the offender, of which the offence for which he has been convicted forms a part, showing a failure to restrain his behaviour and a likelihood of his causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his behaviour,

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his behaviour, ...

[57] The elements of section 753(a)(i) were stated by Lambert, J.A. in R. v. Dow (1999), 134 C.C.C. (3d) 323 at 336 (B.C.C.A.), app. dism'd [1999] S.C.C.A. No.302 (Q.L.) as follows:

[21] The elements of subpara. (i) of para. 753(a) are: (1) that there be a pattern of repetitive behaviour revealed in the offences and that the pattern be present in the offence which gave rise to the dangerous offender proceeding; and (2) that the pattern of repetitive behaviour contained two essential elements: first, a failure to restrain the relevant repetitive behaviour and, second, a likelihood of causing death or injury through a failure to restrain that behaviour in the future.

[22] So there must be a pattern revealed by repetitive behaviour; the pattern must contain an element that the dangerous behaviour was not restrained in the past; and there must be a likelihood that the same behaviour in the future will not be restrained and will cause death or injury.

[58] The learned justice further described a relevant pattern of behavior at para 24 to be:

[24] In short, the significance and the relevance of common elements of the pattern must be determined by whether they tend to show first, repetitive behaviour, second, that there has been a failure in each case to restrain the behaviour, and third, that there has been injury to other persons arising from that failure. If any of those three elements is missing, then there may be a pattern but it will not be a relevant pattern. But if all three are present then the essential elements of a relevant pattern are revealed.

[25] I add that it is the very essence of a pattern that there be a number of significant relevant similarities between each example of the pattern that is being considered, but that, at the same time, there may be differences between each example, some of them quite distinctive, so long as the differences leave the key significant relevant elements of the pattern in place. That is, after all, what is meant by a pattern.

[59] He said that it was sufficient to establish a relevant pattern if all the victims were female and were violently assaulted in generally similar circumstances.

[60] The pattern of conduct must demonstrate a relatively high level of intractability in the sense that it is substantially or pathologically intractable. Thus, the reasons for Kim's behavior should militate against any reasonable prospect for meaningful change in the future (R. v. Neve supra at 141).

[61] Twenty eight incidents of sex assault of females aged between 12 and 14 over seven months constitutes a pattern of repetitive behavior. There is a great deal of similarity between the incidents. Kim was a predator, preying upon the most vulnerable young women of society. He picked the complainants up in his car and usually gave them money to buy drugs in exchange for sex. Most of them were juvenile prostitutes on drugs. He took them to his house in Richmond where he sexually assaulted them. He used others to assist him to get the sex that he wanted when convenient to do so. He frequently filmed the sex that he engaged in and took pleasure in humiliating his victims by showing the video to others.

[62] The repetitive nature of the offences shows a failure to restrain his behavior in the past. The escalating threats and violence were such that if Frank Kim had gone unchecked, there existed the very real probability of serious injury or even death. The psychological effect upon the complainants who provided victim impact statements was severe according to the expert who testified before me. Kim's abnormally high sex drive, paedophilic tendency, narcissistic personality and high need for stimulation and novelty contributed to these offences, along with his overwhelming need to be in a position of power. He told seven of the complainants that he was god. He told SM that he had money and power and nobody should believe her because she was just a girl who smoked crack and worked the streets. It is this attitude and these problems that caused Kim to offend and will continue to cause him to offend in the future. There is no prospect for meaningful change.

[63] I find beyond a reasonable doubt that Frank Kim has been convicted of serious personal injury offences and that he constitutes a threat to the life, safety, or physical or mental well-being of others on the basis of evidence that has established a pattern of behavior that shows that he has failed to restrain his behavior and the likelihood of causing death or injury to other persons or inflicting severe psychological damage on other persons through failure in the future to restrain his behavior.

[64] Section 753(a)(ii) requires the Crown to establish that the offender has been convicted of a serious personal injury offence and that the offender constitutes a threat to the life, safety, or physical or mental well-being of other persons on the basis of evidence establishing a pattern of persistent aggressive behavior showing a substantial degree of indifference respecting the reasonably foreseeable consequences of his behavior to others.

[65] This section was considered by Donald, J.A. in R. v. George supra. He said that the pattern of behavior must show a relationship between like elements indicative of dangerousness in adult life. "Indifference" refers to the truly evil type who has no compassion for others at any time. Genuine expressions of remorse after the offence may be relevant here.

[66] Examples of Frank Kim's aggressive behavior are: threatening LF with a stun gun, threatening SM and strangling her in the course of sex, threatening SK to get her to have sex with him, threatening DD that he would kill her or her soul, and threatening SG that he would get his gun. The assault upon SM when she would not have sex with him was also obviously aggressive. These formed a pattern especially visible in the last month of Kim's offensive behaviour where he would use aggressive behavior to get his way sexually in the face of resistance. He was clearly indifferent to the consequences of his behavior during these offences as he usually proceeded regardless of refusal, crying, and upset. He showed satisfaction with himself after these events with the exception of his apology to DD. His indifference continued right up to arrest and since then. He told police upon arrest that the allegations had got out of hand because the complainants were crack heads, that he was spiritually gifted, "a king", that all great men did questionable things. There has been no expression of remorse since then. There has been no acknowledgment of any psychological harm done. Frank Kim is truly indifferent, evil, as described by Donald, J.A..

[67] I conclude that The Crown has also proven beyond a reasonable doubt the requirements under section 753(a)(ii)

[68] Having found Frank Kim to be a dangerous offender according to the statutory criteria of section 753, there exists a discretion in the court whether to impose a determinate or indeterminate sentence. The Alberta Court of Appeal has suggested that there is also an overriding discretion not to designate an offender as dangerous despite the statutory criteria being met if the designation is not justified in all of the circumstances (R. v. Neve supra at 175-177). However, both the British Columbia Court of Appeal and the Ontario Court of Appeal have indicated otherwise (R. v. Noyes supra at 94; R. v. Dow supra at 334; R. v. Carleton supra at 20-22; R. v. Moore (1985), 16 C.C.C. (3d) 328 at 329 (Ont.C.A.)). I am certain that the only discretion that I must exercise is whether or not to impose a determinate or indeterminate period of incarceration.

[69] In the event that I am wrong, I decline to exercise a general discretion in favour of Frank Kim. He argued that I should override fulfilment of the statutory criteria because he is a first time offender. This just is not enough given the overwhelming circumstances that exist here. Therefore, the only discretion that I must exercise relates to a determinate or indeterminate sentence.

[70] Throughout Frank Kim's involvement in the court system, he has refused the services of a lawyer while manipulating the system through applications and purposeful vagueness to keep it open that somehow he was denied a lawyer. He has said that no lawyer could do as good a job as himself in the conduct of his defence. He took obvious pleasure in listening to himself in the courtroom and even asked for a bigger courtroom at sentencing, presumably so that more of the public could watch him perform. He was obviously dictated by his narcissistic personality disorder. He repeatedly did not respond to questions or suggestions of the trial judge, saying that he wanted to do it his way. He was abusive of the system, filing hundreds of motions, often repetitive, that took many hours of court time. His cross-examination of the complainants was intimidating, incompassionate, and unnecessarily humiliating. His smirking and satisfied smiling at abhorrent evidence given by the complainants and viewed in the disgustingly explicit pornographic video was admonished by the trial judge at the time and otherwise noted. His cross-examination of other witnesses was notable for attention to the minutiae of irrelevant detail. Oddly enough, he was polite to the court and to the Crown for the most part, although his false accusations of Crown nondisclosure were deceptive and misleading and his refusal to follow rulings from the judge on numerous occasions tested the limits of the court. He was insistent and generally well prepared. However, he tried to deceive the court through blatant lies under oath. He revealed very little about himself directly and dominated his mother to do the same. He did not take 'no' for an answer. This conduct revealed much about Frank Kim's character and personality.

[71] There is no reasonable prospect that Frank Kim will accept diagnosis or treatment. He refused to cooperate with the court ordered psychiatric assessment. He has repeated that god deems him innocent and told the jury that, whatever happens, he wins. His narcissistic personality would make it unlikely that he could appreciate the need for treatment. This personality disorder takes a long time to treat according to Dr. Lawson and the treatments are relatively new. Also, effective treatment for paedophilia is uncertain. Further, the treatments that are available involve intensive interaction in group therapy, something that Kim would have difficulty with given his limited social skills. Finally, denial of one's offences is an exclusionary criteria for any penal treatment programme, according to the expert who testified before me. There is no evidence that Frank Kim understands or accepts that he may suffer or suffers from sexual deviancy or personality disorder.

[72] There is no portent for successful rehabilitation within the time ambit of a definite sentence in these circumstances. The maximum sentence for sex assault with a weapon is fourteen years. An appropriate disposition would be on the high end, reduced by consideration of time spent in custody. There does not exist even the hope of successful treatment here. It is speculative to say that there is a possibility of eventual control of the risk that Frank Kim poses in the community. There is no particular time span within which the public could expect Frank Kim to be rehabilitated. I will not take a chance with public safety, especially the safety of young juvenile prostitutes.

[73] Frank Kim has not even begun to accept that he has done anything wrong. He has shown no remorse or compassion for his victims. In shocking reality, he argued to this court to the very end that it was the victims who were responsible for what happened because they were prostitutes. Frank Kim has learned nothing from these proceedings. He has gained no insight into his offences despite incarceration. His attitude towards the victims shows that he has no empathy or understanding of the concept of deterrence. There is nothing in his past history to suggest that cultural or financial disadvantage had led him to this conduct.

[74] I can discern no basis upon which I could exercise my discretion to sentence Frank Kim to a definite term in these circumstances. The predominant purpose of the legislation is the protection of the public. The continued exploitation and abuse of juvenile prostitutes that Frank Kim favoured is a continuing serious public problem for Canadians (see R. v. Neve supra at 182-183 and reports cited therein). Frank Kim falls within that small number of offenders in respect of whom preventive incarceration is warranted. He will be detained indefinitely.

[75] It remains to sentence Frank Kim for nine counts of obtaining for consideration the sexual services of a person under the age of eighteen contrary to section 212(4) of the Criminal Code, one count of assault contrary to section 266, two counts of uttering a threat to cause death or bodily harm contrary to section 264.1(1)(a), and one count of possession of a prohibited weapon contrary to section 90(1).

[76] The section 212(4) offences began with SM in January 1997 and continued until December 1997. Eight complainants testified that Frank Kim picked them up on the streets of Vancouver and paid to have sex with them. This included oral sex, intercourse, and anal sex. In addition to the complainants already described, there was also KB and MM.

[77] KB was actually the first young prostitute who Frank Kim videoed while he had sex with her. He paid extra for the video. Although she asked that he not show the tape to others, he did so. This was known to her and caused her additional humiliation. She saw Kim over four months from July to October 1997 and had sex with him every couple of days except for a time when she was in custody.

[78] MM had sex with Frank Kim in exchange for rock cocaine that he had purchased through JV. He picked her up on the kiddy stroll of Vancouver on Christmas Day 1997. She had sex with Kim again the next day in return for cocaine. These events, like all others except the first time with SM, occurred at Frank Kim's house.

[79] The principle of deterrence is most important here where the offences involve the vulnerable juvenile street prostitute. Kim exploited these young women not only for his own sexual gratification, but also for social prestige that he thought that he gained with his car and money in this young, impressionable crowd. There is no hope at this time for rehabilitation of Frank Kim who remains unmoved by these offences. There is no remorse. There is no sense of responsibility. There is no acknowledgment of any harm done.

[80] The section 266 assault offence involved SM late one night in December 1997. She was at Kim's house to party and wanted to go home because there were no more drugs. Frank Kim told her that she owed him from the last time and that she had to have sex with him before she left. She refused. He would not let her leave. A fistfight broke out and Kim punched SM. She punched back. A struggle ensued on the stairs as Kim punched her as he tried to get her upstairs. Eventually, she grabbed for a knife on the kitchen table. She told Kim that she had told the police on him. He said that they wouldn't believe her. The fight ended shortly after SM grabbed the knife.

[81] Frank Kim was not intoxicated at the time of this offence. He appears never to use drugs or alcohol. He denied that it occurred and no explanation was given for this conduct.

[82] The offences of uttering a threat relate to SK and DD. The circumstances of these offences have already been described above. With respect to SK, the second incident described above in Part III(a) founded the conviction for uttering a threat. The Crown did not charge Kim with that sex assault, but only the uttering a threat. It was not one of the predicate offences relied upon by the Crown in the dangerous offender part of this sentencing. It did, however, form part of the pattern of conduct. The circumstances of the offence related to DD were also described above. Neither of these offences were subject to the rule against multiple convictions.

[83] The last offence for possession of a prohibited weapon was the stun gun used against LF.

[84] Frank Kim has been continuously in custody since late February 1998. I have credited this time in imposing sentence for these offences. It is not, however, full double time because these proceedings have been unduly lengthened by Frank Kim and he has demonstrated no benefit from the incarceration served. He is dangerous and will be dangerous in the future.

[85] Frank Kim is sentenced to two years plus six months imprisonment on each count under section 212(4) to be served concurrently. For the assault of SM, I sentence Kim to eighteen months imprisonment to be served concurrently with the other sentences. For each count of uttering a threat, I sentence Frank Kim to two years imprisonment to be served concurrently. Finally, I sentence Frank Kim to six months for possession of a prohibited weapon, also to be served concurrently.

[86] The Crown has applied for an order that a sample of Frank Kim's DNA be taken for the purpose of forensic DNA analysis pursuant to section 487.052, proclaimed on June 30, 2000. The defence claims that the section is unconstitutional. The reason for the constitutional challenge is that it offends the presumption of innocence to take the sample before all avenues of appeal are exhausted. This argument was very poorly presented and without authority. No persuasive argument was made. In the circumstances, I do not consider that this is the appropriate case to determine the constitutionality of the section.

[87] Section 487.052 provides:

487.052 (1) Subject to section 487.053, if a person is convicted, discharged under section 730 or, in the case of a young person, found guilty under the Young Offenders Act, of a designated offence committed before the coming into force of subsection 5(1) of the DNA Identification Act, the court may, on application by the prosecutor, make an order in Form 5.04 authorizing the taking, from that person or young person, for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1), if the court is satisfied that it is in the best interests of the administration of justice to do so.

(2) In deciding whether to make the order, the court shall consider the criminal record of the person or young person, the nature of the offence and the circumstances surrounding its commission and the impact such an order would have on the person's or young person's privacy and security of the person and shall give reasons for its decision.

[88] "Designated offence" is defined in section 487.04 to include section 212(4), section 271, and section 272. The section authorizes the taking of samples by plucking hair, taking buccal swabs, and pricking the skin for blood (section 487.06)

[89] Frank Kim has been found guilty of eight designated offences. He has a very significant criminal record involving sex assault of underage females. He denied that the offences occurred. Many of the offences were brutal in the sense that they demonstrated a lack of pity and self control. He often did not know the complainants before the first assault, having picked up the females on the street. The method of taking the sample is not unduly intrusive (see R. v. Greffe, [1990] 1 S.C.R. 755 at para.49 (S.C.C.); Re Laporte and the Queen (1972, 8 C.C.C. (2d) 343 at 345 (Que.Q.B.)).

[90] The only reason why such an order may not be appropriate is because Frank Kim is to be detained indefinitely as a dangerous offender. He will not be on the streets posing a risk to anyone. However, this is not within the criteria of section 487.052(2) and appears to have been specifically contemplated in section 487.055.

[91] An order is given authorizing the taking of a DNA sample from Frank Kim.

"Janice Dillon, J."
The Honourable Madam Justice Janice Dillon

October 16, 2000 -- Addendum to the Reasons for Judgment rendered by Madam Justice Dillion stating the following:

[1] The final paragraph 91 of the reasons for judgment given on October 13, 2000 shall be amended by deletion of the last sentence:

[2] Section 487.056 (1) of the Criminal Code states that samples of bodily substances shall be taken at the time a person is convicted or as soon as is feasible afterwards even though an appeal may have been taken.

[3] Accordingly, I vacate deferral.

"Janice Dillon, J."
The Honourable Madam Justice Janice Dillon