R v Power Romero, 2023 ABCJ 110

In the Alberta Court of Justice Citation: R v Power Romero, 2023 ABCJ 110 Date: 20230516 Docket: 201344934P1 Registry: Calgary Between: His Majesty the King - and - Joseph Kevin Power Romero Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Decision on Sentence of the Honourable Justice B.R. Fraser Introduction [ 1 ] The Offender has been convicted after trial of sexual assault and touching a 13-year-old girl on two separate occasions. I entered stays on the sexual assaults in accordance with Kienapple . This is a sentencing decision on the two counts of touching.

The first touching involved full-blown sexual intercourse. The second touching was a minor touching for a sexual purpose. The full facts as determined by the Court can be found at R v Power Romero , 2022 ABPC 214 . He has no previous criminal convictions. I ordered and have received a pre-sentence report and a FAOS report. The FAOS report shows no symptoms of major mental illness. The risk assessment tests conducted show he is a low or very low risk to re-offend. [ 2 ] In addition, I received Victim Impact Statements from the victim child and her mother.

They detail serious psychological trauma as a result of the offence necessitating psychiatric and psychological treatment and even hospitalization for self-harm treatment and therapy as a survivor of sexual assault. [ 3 ] In addition, I received a character letter from his parents attesting to his good character despite conducting a business of selling illegal substances to minors including this victim and the offence he committed. [ 4 ] I have received extensive submissions both written and oral and authorities from both counsel which I have thoroughly reviewed.

Principles of Sentencing [ 5 ]

Section 718 sets out the principles of sentencing I must follow and consider.

They are as follows: 1) denounce and deter, the most fundamental purpose of sentencing; 2) to rehabilitate; 3) to promote a sense of responsibility in the offender and acknowledgment of the harm done to the victim; 4) to respect the parity principle; the sentence should be similar to other sentences imposed on similar offenders for similar offences; 5) the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender; 6) to not incarcerate if less restrictive sanctions are appropriate; 7) sec 718.01 states when the offence involves the abuse of a child, the primary consideration is denunciation and deterrence; 8) if the offender abused a position of trust in relation to the victim; 9) to separate offenders from society, where necessary. 10) if the offender abused a person under the age of 18 years; 11) if the offence had a significant impact on the victim, considering their age and personal circumstances; and 12) to take into account the aggravating and mitigating circumstances. [ 6 ] Overall, the fundamental purpose of sentencing is to protect society and promote respect for the law.

Aggravating Factors 1) the offence was a major sexual assault involving full vaginal intercourse without a condom; 2) the victim was only 13 years of age and the Offender was 25 years of age at the time of the offence; 3) the Offender was aware the victim was having mental health issues at the time; 4) the offence had a significant psychological impact on the victim as demonstrated by the Victim Impact Statement; 5) the FAOS report indicates that he demonstrated a lack of remorse and that he thought he did not do anything wrong and that he is a victim; and 6) the pre-sentence report indicates the Offender and his parents do not accept responsibility for his actions which may affect mitigating his risk in the future. [ 7 ] The Crown submits further aggravating factors that the Offender groomed the victim in order to commit the offence and that he was in a position of trust.

The defence takes issue with these factors and submit he neither groomed the victim nor was he in a position of trust. I will deal with these purported factors later in these reasons. Mitigating Factors [ 8 ] I can see no mitigating factors except for two raised by defence. The first is that he is of previous good character. The second is that he has been under strict conditions while awaiting trial and has complied with those conditions. The Crown takes issue with both these submissions and submits they are not mitigating. I will deal with those purported factors later in these reasons as well.

The Law [ 9 ] Authorities in Alberta such as R v Sandercock , 1985 ABCA 218 , R v Hajar , 2106 ABCA 222, R v Arcand , 2010 ABCA 363 and R v Powderface no longer apply to sentences for major sexual assaults on children if they ever did. Starting points for sentences are no longer mandatory and not adhering to them does not amount to an error in law. That is not to say they cannot be useful if it fits the individualization of the case before the Court. [ 10 ] All of these authorities have been overtaken by the Supreme Court of Canada’s pronouncements in R v Friesen , 2020 SCC 9 .

In that case the Supreme Court has directly addressed the appropriate sentence for major sexual assaults against children and the proper considerations sentencing courts must take into account. A number of those pronouncements that are applicable to the facts of this case are worth repeating to ensure they are considered.

[11] They are as follows: At paragraph 42 the court stated: Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offencesagainst children in the Criminal Code. Our society is committed to protecting children and ensuring their rights and interests arerespected... At paragraph 43: This case presents an opportunity for this court to consider the sentencing principles for sexual offences against children. Sentencing is one of the most important and “most delicate stages of the criminal justice process”...

At paragraph 50: To effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness ofsexual offences against children and the profound harm that they cause... At paragraph 52: ... a child’s participation in such contact is not a mitigating factor and should never be equated to consent. At paragraph 149: ...Like many provincial appellate courts, we agree that it is an error of law to treat “de facto consent” as a mitigating factor.

At paragraph 56: ...Sexual violence against children can cause serious emotional and psychological harm that, as this Court held in R v McCraw, (SCC), [1991] 3 S.C.R. 72 (S.C.C.), “may often be more pervasive and permanent in its effect than any physical harm”. At paragraph 75: ...Taking the wrongfulness and harmfulness into account will ensure that the proportionality principle serves its function of “ensur[ing]that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and theharm they caused.

At paragraph 76: Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient forcourts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of theoffender’s actions and the consequential harm to children and their families, caregivers and communities... At paragraph 88: Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to beaware that this action can profoundly harm the child...

At paragraph 90: The fact that the victim is a child increases the offender’s degree of responsibility. Put simply, the intentional sexual exploitationand objectification of children is highly morally blameworthy because children are so vulnerable. ...”As to moral blameworthiness, theuse of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst ofintentions”...

At paragraph 96: Maximum sentences help determine the gravity of the offence and thus the proportionate sentence. ...Maximum penalties are oneof Parliament’s principal tools to determine the gravity of the offence. At paragraph 97: Accordingly, a decision by Parliament to increase maximum sentences for certain offences shows that Parliament “wanted suchoffences to be punished more harshly”... At paragraph 98: Parliament has repeatedly increased sentences for sexual offences against children.

At paragraph 104: ...Where Parliament has indicated which sentencing objectives are to receive priority in certain cases, the sentencing judge’s discretion isthereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority. ... [12] At paragraph 106, the court declined to create national starting points for sexual offences against children stating that it is best

left to provincial appellate courts. However they did provide guidance on three specific points: 1) Upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence. 2) Sexual offences against children should generally be punished more severely than sexual offences against adults. 3) Sexual interference with a child should not be treated as less serious than sexual assault of a child. At paragraph 108: ...sentences can and should depart from prior sentencing ranges when Parliament raises the maximum sentence for an offence...

At paragraph 109: ...Parliament’s decision in 2015 to increase maximum sentences for sexual offences against children should shift the range of proportionate sentences as a response to the recognition of the gravity of these offences. ... At paragraph 114: ...it is incumbent on us to provide an overall message that is clear. ...That message is that mid single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.

We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim... At paragraph 115: We are also concerned that some courts appear to have adopted sentencing ranges that treat sexual violence against children in a manner similar to sexual violence against adults. For instance, in Alberta, the starting point for both “major sexual assault” of an adult victim and “major sexual interference” with a child victim is three years ( Hajar , at paras. 2 and 12). ...

At paragraph 116: ...Parliament has determined that sexual violence against children should be punished more severely. ... At paragraph 118: ...courts should correct this error by increasing sentences for sexual offences against children – not by decreasing sentences for sexual offences against adults. [ 13 ] To reiterate, the Supreme Court did not set starting points for child sexual assaults, but did set the norm at mid single digit penitentiary terms increasing to upper single digit and double digit figures not reserved for exceptional circumstances.

Additional Aggravating Factors [ 14 ] The Crown submits the Offender participated in grooming the victim in order to commit the sexual assault. The only prior contact with the victim was acquiring and selling her illegal products she could not acquire on her own because she was a minor. He had a business of doing this and was selling to any minor that wanted his products. He made himself available at a junior high school where there were plenty of customers.

The victim was just another customer. [ 15 ] Grooming is defined as a form of abuse that involves manipulating someone until they are isolated, dependent and more vulnerable to exploitation. I do not see by conducting his illegal business with the victim that such conduct fits the definition. There was evidence that the victim shared some of her mental issues with the Offender but there is very little evidence this involved any manipulation leading to exploitation. I do not find there was any evidence of grooming here. [ 16 ] The Crown also submits the Offender was in a position of trust vis a vis the victim.

If he was, sec 718.2(a)(iii) states that is a specific aggravating factor. The only position of trust that could be considered is that the victim relied on the Offender to supply her with his products. In my view, this is more of a business arrangement than a position of trust. They exchanged messages but that was as friends and to conduct their business. A trust position usually involves parents or assisting in parenting or in a position as teacher or care- provider. I do not find the Offender was in a position of trust.

Additional Mitigating Factors [ 17 ] The defence submits the fact the Offender was subject to strict conditions of bail while awaiting trial, should be a factor in reducing the sentence. The restrictions referred to were house arrest, limited use of his cell phone and computer, unable to engage in his normal recreational activities with friends, and always under the supervision of his sureties being his parents. The defence refers to a number of authorities where sentences were reduced because of restrictive judicial interim release conditions.

In those authorities, a reduction in sentence was made as a strict condition pending trial was considered mitigating. [ 18 ] The Crown submits he was not on strict conditions of release until he became involved in further allegations that resulted in those strict conditions.

[19] He was charged with these offences in September 2020. He was released by the police on an Undertaking with minimumconditions such as to have no contact with the victim and not to go near her junior high school. [20] It was not until September 2021 when he was charged in Brooks, Alberta with offences under secs. 151, 152 and 271 inrelation to a 15-year-old child.

He was released on a Form 11 Release Order with strict conditions such as having his father act as asurety, maintain a curfew, no contact with the complainant, not to go to Brooks, not to have contact with anyone under 18, not to be inareas where children under 16 would be expected to be and not to be in possession of any weapons. These restrictions were in relation tothese new charges, not in relation to the charges on which I have entered convictions. [21] One month later, he was charged in Calgary with breaching two of those conditions.

One was having contact with a childunder 18 and the second was being in possession of a smart phone, being breaches of the conditions of release on the Brooks charges. [22] I am advised the Calgary Crown was unaware of the Brooks charges until the breach charges. It was at this time the Crowngave notice they would apply for cancellation of his bail on the charges under sec 524(3). By making that application, it is incumbent onthe court to cancel his bail under sec 524(3) and order him detained under 524(4) pending a reverse onus show cause hearing, the firststage of a 524 application.

The second stage is the show cause hearing. At that hearing he was again released requiring two sureties, hisfather and his mother, and placed under house arrest. The strict conditions now applied to the charges on which I have enteredconvictions but not because of those charges. It was because he was charged with further criminal offences and breaches. Had he notbeen, there would have been no strict conditions. [23] This sequence of events is necessary to deal with the submissions of counsel that a reduction in sentence should be consideredbecause of strict conditions of his judicial release.

I disabuse my mind of any charges resulting and it will have nothing to do with thesentence I impose. [24] I have reviewed all of the authorities provided by the defence relating to this issue. All of them relate to consideration of strictbail conditions at first instance. None refer to strict bail conditions imposed as a result of further criminal charges while on judicialinterim release for the charges relating to those convictions or for breach of those strict conditions.

In my view, the conditions uponwhich he was released on these charges were not strict conditions and should not result in a reduction of the sentence. The strictconditions subsequently applied were as a result of his behaviour resulting in further charges while on judicial interim release. Had thatnot occurred there would have been no strict conditions. In these circumstances, the strict conditions are not a mitigating factor. [25] The defence also submits the Offender’s previous good character should be a mitigating factor. The Offender has no previouscriminal convictions.

I am in receipt of two statements, marked as exhibit 4 on sentencing, both from his parents, attesting to his goodcharacter.

These statements are tempered by the comment in the Pre-Sentence Report as follows: “The subject and his parents diminished the subject’s responsibility in the commission of the offence and expressed not agreeing with theofficial circumstances leading to the conviction.” [26] No persons gave statements of his good character other than his parents including his brothers who the PSR reports he has agood relationship with but the Offender has not told them of what he did resulting in his conviction. [27] Defence counsel points to his low risk of recidivism as found in the FAOS testing and report, to his education andemployment, and his parents’ support, all contributing to a finding of good character.

I acknowledge these points but what counsel doesnot refer to is his business of selling illegal substances to minors in a junior high school. Persons of good character do not engage in suchactivities. Perhaps his parents are not the best judges of his character. Victim Impact Statements [28] Both the victim and her mother gave victim impact statements, marked as exhibit 3 on sentencing. The Alberta Court ofAppeal in Arcand held that any major sexual assault is of a nature or character such that a reasonable person could foresee that it is likelyto cause serious psychological or emotional harm to the victim.

The Supreme Court in R v McCraw, (SCC), [1991] 3SCR 72 stated that the emotional and psychological harm may often be more pervasive and permanent in its effect than any physicalharm. In Friessen, they stated at para 85 that victim impact statements will usually provide the “best evidence” of the harm that thevictim has suffered. [29] The victim impact statements filed by the victim and her mother do just that. The victim, already suffering from some mentaldisorders, were aggravated by this crime. They are vividly described in her statement.

Thoughts of suicide, self-harm, low self esteem,guilt and regret have resulted in treatment in mental health institutions and rehab programs. She describes the trauma she has and issuffering, all because of the single criminal act of this Offender. Her mother points out her daughter unfairly blames herself for theOffender’s crime. She continues to spend countless hours in therapy rather than enjoying being a teenager. The Appropriate Sentence [30] The Supreme Court states the norm is mid-single-digit sentences. To me that indicates five years.

It can go higher in normaland usual circumstances; no exceptional circumstances are necessary. There is no doubt that when the victim is a child in a major sexualassault, based on authorities such as Arcand, Hajar, Friessen and R v Innes, 2008 ABCA 129, that the most important principle ofsentencing is deterrence and denunciation above all others.

Section 718.01 directs sentencing courts to give primary consideration tothose objectives when it involves the abuse of a child.

Section 718.1 states the fundamental principle of sentencing must be that thesentence is proportionate to the gravity of the offence and the degree of responsibility of the offender. The sexual abuse of a child is avery grave offence. The Offender is solely responsible for the commission of that crime. [31] In Innes, the Alberta Court of Appeal set out the meaning of deterrence and denunciation in the context of sexual offences

against children. Specific deterrence refers to convincing the Offender not to re-offend. General deterrence refers to inducing others tempted to commit this offence not to do so. Denunciation refers to convincing the public that the offence in question is a true crime, a serious one which respectable people would shun. The sentence must meet those objectives. [ 32 ] The aggravating factors have been reviewed; full vaginal intercourse with a 13-year-old girl without a condom.

The mitigating factors are the FAOS assessment that he is a low-level risk of recidivism and there is some evidence of good character but also some of bad character. [ 33 ] The parity principle is difficult to apply since no two fact situations are the same and no two offenders are the same. [ 34 ] The submission of the defence as to the appropriate sentence is way below the norm and would not achieve the objectives of sentencing nor would it properly apply the principles of sentencing. The submission of the Crown is a range of sentence within the norm expressed by the Supreme Court.

Given the Crown’s range I am not prepared to go above that norm. [ 35 ] The question in my mind is, should the sentence be slightly reduced to take into account the low risk of re-offending by the Offender as determined by the FAOS Report and any evidence of good character. In my view, a slight reduction is appropriate to take into account these factors and still have the appropriate deterrent and denunciatory objective and still recognize the gravity of the offence and the responsibility of the Offender.

Rehabilitation is also a consideration. [ 36 ] I will set the sentence at four and a half years for count two and one month concurrent on the second touching, count six. Ancillary Orders [ 37 ] DNA profile to be provided. [ 38 ] Register under SOIRA for a term of 20 years. [ 39 ] Firearms prohibition under sec 109 for 10 years after he is released from prison. - for life for any prohibited firearms, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition. Dated at the City of Calgary, Alberta this 16 th day of May, 2023. B.R.

Fraser A Justice of the Alberta Court of Justice Appearances: D. Spaner for the Crown J. Edgett for the Accused