R. v. Roberts, 2018 NLSC 77

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Roberts , 2018 NLSC 77 Date : April 11, 2018 Docket : 201603G0040 Her Majesty The Queen v. Damien Roberts Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the persons described in this judgment as the complainants or victims shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Kendra J.

Goulding Edited Transcript of Oral Reasons for Judgment Place of Hearing: Grand Falls-Windsor, Newfoundland and Labrador Dates of Hearing: September 18, 2017, January 26, 2018 and March 13, 2018 Date of Oral Judgment: March 16, 2018

Summary: The Court accepted a joint submission on sentencing the offender to 12 months imprisonment on each count of sexual interference (

section 151 of the Criminal Code ) to be served concurrently less 18 days credit for pre-sentence custody followed by a 2 year period of supervised probation. The Court also imposed ancillary orders (SOIRA, DNA, Firearms Prohibition and Victim Fine Surcharges).

Appearances: Karen. J. O'Reilly Appearing on behalf of the Crown Jonathan E. Noonan Appearing on behalf of Damien Roberts Authorities Cited: CASES CONSIDERED: R. v Muise, 2018 NLSC 8; R. v. Norton, 2016 MBCA 79; R. v. Barrett, 2012 NLCA 46; R. v. Payne, 2012NLCA 72; R. v. Anthony-Cook, 2016 SCC 43; R. v. Douglas, (QC CA), [2002] J.Q. no 418, 162 C.C.C. (3d) 37(QCA); R. v. Hutchings, 2012 NLCA 2; R. v. Bourgeois, 2018 NLCA 13. STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46.

REASONS FOR JUDGMENT Goulding, J.: INTRODUCTION [1] The offender, Damien Roberts, pled guilty to two counts of sexual interference relating to victims A.S. and F.H., contrary tosection 151 of the Criminal Code of Canada. The change in plea was on the first day of the jury trial scheduled for three weeks. Thematter of sentencing was adjourned to allow for the preparation of a pre-sentence report. issue [2] The issue today is the determination of a fit and just sentence for this offender. facts [3] A

summary of the Agreed Statement of Facts, revised to protect the identities of the victims, is as follows: On December 5, 2014, Damien Roberts hosted a party at his residence. All persons present at the relevant time were 18 years of age orolder except for the victims, A.S., age 14 years and F.H. age 15 years. Everyone was drinking alcohol including the victims who weredrinking from a 26 ounce bottle of London Dock. Mr. Roberts was warned by another male, identified as Austin, that he was too old for these girls.

The videos on the digital cameraseized from the residence showed F.H. and A.S. and others dancing with their shirts off. Austin was upset with F.H.’s decision toremove her shirt and F.H. slapped him in the face. F.H. then pulled down A.S.’s pants and underwear and Mr. Roberts touched A.S.’s vagina with his finger from behind and while she wasbending over. F.H. and Austin left the party before midnight but returned at around 1:00 a.m. as F.H. said she had left her purse behind. Austin was then forced out of the Roberts’ house by someone other than Mr. Roberts. While in his bedroom, Mr.

Roberts touched and kissed F.H.’s breasts. They were both unclothed and it appeared to others that they maybe having intercourse. However, the Crown is not alleging that any sexual intercourse occurred. Austin received a call from F.H. and hethen called her mother, saying F.H. was in trouble. The mother met Austin who showed her where Mr. Roberts lived. F.H. came out ofthe Roberts residence screaming and crying that she had been sexually assaulted and to call the police.

At 5:55 a.m. on December 6, 2014, the police commenced their investigation and at 7:45 a.m., attended at the Roberts’ home to check onthe wellbeing of A.S. Mr. Roberts and another female denied that A.S. was there. The police later learned that A.S. had contacted F.H.and said she was in the Roberts house when the police visited. The police returned to the Roberts residence and entered to search for

A.S. Mr. Roberts advised she was there and A.S. presented herself. The residence was secured and the police returned with a searchwarrant and seized amongst other things, a digital camera with the videos. joint submission [4] The Crown and Defence are jointly submitting that a sentence of one year imprisonment on each offence to run concurrentlyfollowed by a period of supervised probation for two years is appropriate and reasonable in the circumstances of this case.

I willreference in further detail the Crown’s concern regarding proceeding to trial on these charges later in my decision. case law [5] The following case may be distinguished on its facts particularly as it relates to the extent of the sexual assault. I wish toreference it for purposes of demonstrating the range of sentence for a sexual interference offence and my position that the jointsubmission is on the lower end of the scale. [6] In R. v Muise, 2018 NLSC 8, an 18 year old offender admitted to having sexual intercourse with the 13 year old victim whowas intoxicated at the time.

He was sentenced to 30 months imprisonment less credit for time served. Stack, J. considered as mitigatingthe offender’s youth, positive family support, remorse and willingness to take counselling. The offender was an aboriginal and theGladue considerations militated towards imposing a sentence that would foster rehabilitation. The aggravating factors included theabuse of a person who was under the age of 18, the offender’s criminal record, the inebriation of the victim and the offender being onprobation at the time of the offence.

The Crown relied on several cases in which the accused was convicted of having sexual intercoursewith a person under the age of consent and was given a three year sentence including R. v. Norton, 2016 MBCA 79 and R. v. Barrett,2012 NLCA 46. Stack, J. found these cases represented “fact scenarios more egregious” than the facts in Muise. Stack, J. alsoconsidered R. v. Payne, 2012 NLCA 72 wherein the 34 year old offender had unprotected sexual intercourse with a 13 year old victim ontwo occasions.

In paragraph 8, Welsh, J.A. for the Court of Appeal stated “a review of the case law leads to the conclusion that a threeyear term of imprisonment for sexual assault of a 13 year old girl involving intercourse is at the low end of the range.” [7] Defence has presented for my consideration an important decision, R. v. Anthony-Cook, 2016 SCC 43. Moldaver, J. indelivering the judgment of the Court, commenced the discussion by stating in paragraphs 1 and 2: 1 Resolution discussions between Crown and defence counsel are not only commonplace in the criminal justice system, they areessential.

Properly conducted, they permit the system to function smoothly and efficiently. 2 Joint submissions on sentence - that is, when Crown and defence counsel agree to recommend a particular sentence to the judge, inexchange for the accused entering a plea of guilty - are a subset of resolution discussions.[1] They are both an accepted and acceptablemeans of plea resolution. They occur every day in courtrooms across this country and they are vital to the efficient operation of thecriminal justice system. As this Court said in R. v.

Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, not only do joint submissions "help toresolve the vast majority of criminal cases in Canada", but "in doing so, [they] contribute to a fair and efficient criminal justice system"(para. 47). [8] However, Moldaver, J. cautioned that joint submissions on sentence are “not sacrosanct” and judges may depart from them.[Paragraph 3] The issue is what test shall be used by a Judge to “measure the acceptability of a joint submission.” [Paragraph 25] [9] Four possible tests or approaches emerged as follows: 1.

The first is the “fitness” test where serious consideration should be given to joint submissions but judges may depart from them ifthey conclude the sentence is not fit. This test is mostly commonly used in the western provinces. [Paragraph 27] 2. The second test is a “fitness” test but differs in that a judge should not depart from a joint submission unless they conclude that thesentence is “demonstrably unfit”. [Paragraph 28] 3.

The third test referred to as the “public interest” test requires that judges not depart from a joint submission unless the sentencewould bring the administration of justice into disrepute or is otherwise not in the public interest. This test provides a high threshold andhas been adopted by a number of provincial appellate courts, for example, in Ontario, British Columbia and Newfoundland andLabrador. [Paragraph 29] 4. The fourth test treats the fitness and public interest tests as essentially the same, an example is found in R. v. Douglas, (QC CA), [2002] J.Q. no 418, 162 C.C.C. (3d) 37 (QCA) in which Fish, J.

A. (as he then was) said in paragraph 51: 51 In my view, a reasonable joint submission cannot be said to "bring the administration of justice into disrepute". An unreasonable jointsubmission, on the other hand, is surely "contrary to the public interest". Accordingly, though it is purposively framed in striking andevocative terms, I do not believe that the [the public interest test] departs substantially from the test of reasonableness articulated byother courts, including our own.

Their shared conceptual foundation is that the interests of justice are well served by the acceptance of ajoint submission on sentence accompanied by a negotiated plea of guilty - provided, of course, that the sentence jointly proposed fallswithin the acceptable range and the plea is warranted by the facts admitted. [10] Moldaver J. concluded at paragraph 31 that the public interest test is the proper test and explained as follows: 31 … It is more stringent than the other tests proposed and it best reflects the many benefits that joint submissions bring to the criminaljustice system and the corresponding need for a high degree of certainty in them.

Moreover, it is distinct from the "fitness" tests used bytrial judges and appellate courts in conventional sentencing hearings and, in that sense, helps to keep trial judges focused on the uniqueconsiderations that apply when assessing the acceptability of a joint submission. To the extent Douglas holds otherwise, I am

respectfully of the view that it is wrongly decided and should not be followed. [My emphasis] [11] In determining what is meant by the “threshold”, Moldaver, J. referenced two helpful decisions from the Newfoundland andLabrador Court of Appeal as follows (paragraphs 33 and 34): 33 In Druken, at para. 29, the court held that a joint submission will bring the administration of justice into disrepute or be contrary tothe public interest if, despite the public interest considerations that support imposing it, it is so "markedly out of line with theexpectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the properfunctioning of the criminal justice system".

And, as stated by the same court in R. v. B.O.2, 2010 NLCA 19, at para. 56 , whenassessing a joint submission, trial judges should "avoid rendering a decision that causes an informed and reasonable public to loseconfidence in the institution of the courts". 34 In my view, these powerful statements capture the essence of the public interest test developed by the Martin Committee. Theyemphasize that a joint submission should not be rejected lightly, a conclusion with which I agree.

Rejection denotes a submission sounhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, awareof all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the properfunctioning of the justice system had broken down.

This is an undeniably high threshold - ... [My emphasis] [12] Moldaver, J. then explained in a most thorough and comprehensible manner why the high threshold is necessary andappropriate (paragraphs 35 to 40): 35 Guilty pleas in exchange for joint submissions on sentence are a "proper and necessary part of the administration of criminal justice"(Martin Committee Report, at p. 290).

When plea resolutions are "properly conducted [they] benefit not only the accused, but alsovictims, witnesses, counsel, and the administration of justice generally" (ibid., at p. 281 (emphasis deleted)). 36 Accused persons benefit by pleading guilty in exchange for a joint submission on sentence (see D. Layton and M. Proulx, Ethics andCriminal Law (2nd ed. 2015), at p. 436). The most obvious benefit is that the Crown agrees to recommend a sentence that the accused isprepared to accept. This recommendation is likely to be more lenient than the accused might expect after a trial and/or contestedsentencing hearing.

Accused persons who plead guilty promptly are able to minimize the stress and legal costs associated with trials.Moreover, for those who are truly remorseful, a guilty plea offers an opportunity to begin making amends. For many accused,maximizing certainty as to the outcome is crucial - and a joint submission, though not inviolable, offers considerable comfort in thisregard. 37 The Martin Committee recognized this. As it noted at p. 328 of its report, the most important factor in the "ability to concluderesolution agreements, thereby deriving the benefits that such agreements bring, is that of certainty".

Generally speaking, accusedpersons will not give up their right to a trial on the merits, and all the procedural safeguards it entails, unless they have "some assurancethat [trial judges] will in most instances honour agreements entered into by the Crown" (Cerasuolo, at para. 9). 38 The Crown also relies on the certainty of joint submissions.

Agreements that are certain are attractive to the Crown "because there isless risk that what Crown counsel concludes is an appropriate resolution of the case in the public interest will be undercut" (MartinCommittee Report, at p. 328). 39 From the Crown's perspective, the certain or near certain acceptance of joint submissions on sentence offers several potentialbenefits. First, the guarantee of a conviction that comes with a guilty plea makes resolution desirable (Martin Committee Report, at pp.285-86).

The Crown's case may suffer from flaws, such as an unwilling witness, a witness of dubious worth, or evidence that ispotentially inadmissible - problems that can lead to an acquittal. By agreeing to a joint submission in exchange for a guilty plea, theCrown avoids this risk. Second, the accused may have information or testimony to offer the Crown that can prove invaluable to otherinvestigations or prosecutions. But this information may not be forthcoming absent an agreement as to a joint submission. Third, theCrown may consider it best to resolve a particular case for the benefit of victims or witnesses.

When an accused pleads guilty inexchange for a joint submission on sentence, victims and witnesses are spared the "the emotional cost of a trial" (R. v. Edgar, 2010ONCA 529, 101 O.R. (3d) 161, at para. 111). Moreover, victims may obtain some comfort from a guilty plea, given that it "indicates anaccused's acknowledgement of responsibility and may amount to an expression of remorse" (ibid.). 40 In addition to the many benefits that joint submissions offer to participants in the criminal justice system, they play a vital role incontributing to the administration of justice at large.

The prospect of a joint submission that carries with it a high degree of certaintyencourages accused persons to enter a plea of guilty. And guilty pleas save the justice system precious time, resources, and expenses,which can be channeled into other matters. This is no small benefit. To the extent that they avoid trials, joint submissions on sentencepermit our justice system to function more efficiently. Indeed, I would argue that they permit it to function. Without them, our justicesystem would be brought to its knees, and eventually collapse under its own weight. sentencing provisions – criminal code

[ 13 ] The relevant provisions set out in

section 718 of the Criminal Code are: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

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

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

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

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 14 ]

Section 718.01 states that when a Court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence. Further, such conduct is an aggravating factor on sentencing. [ 15 ] The fundamental principle is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Court shall consider aggravating or mitigating circumstances relating to the offence or the offender.

Sentences should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered. concurrent vs consecutive sentences [ 16 ] I have also considered R. v. Hutchings , 2012 NLCA 2 in which the Court described a three-step approach to be applied in sentencing for multiple offences.

The first step is to assign an appropriate sentence for each offence. The second step is to determine whether any of the offences should be ordered to be served concurrently on the basis that they constitute a single criminal venture. The third step requires consideration of the principle of totality. [ 17 ] In R. v. Bourgeois , 2018 NLCA 13 the Court stated (paragraphs 35 and 36): 35 The determination to impose a concurrent sentence as requested by the Crown cannot be said to be an error.

Submissions of counsel are always an important component in the assessment of an appropriate sentence . [My emphasis] 36 However, I would add that care must be taken not to give an overly broad

interpretation to what constitutes a single criminal venture under step two of the analysis. Consideration should be given to factors such as whether the same offence is repeated, rather than different offences; whether the victim is the same; and how the offences may be linked in time. (For a discussion of relevant considerations, see, for example, R. v. O'Quinn , 2017 NLCA 10 ; R v. Martin , supra.) [ 18 ] In the case before me, the same offence was repeated, albeit with different victims and is linked in time.

The Crown stressed the submission of concurrent sentences is a vital component of the agreement between counsel. factors on sentencing Position of Trust or Authority [ 19 ] The offender was not in any position of trust or authority in relation to the victims. Age of the Victims [ 20 ] The victims were 14 and 16 years of age at the time of the offences. The offender believed them to be older but admits he took no reasonable steps to ascertain their ages and was not aware of the legal age for consent being 16 years. He was warned by Austin that he was too old for these girls but he ignored the advice.

Manipulation of the Victims [ 21 ] There was no evidence of manipulation of the victims. Planned Conduct by the Offender [ 22 ] The conduct of the offender in respect of the victims was not planned nor calculated. Victims’ Vulnerability [ 23 ] The victims were consuming alcohol at the party which was known to the offender. There is no indication in the Agreed Facts that the victims were intoxicated. However, given their young ages, consumption of London Dock Rum would affect their vulnerability.

Impact on the Victims [ 24 ] The victims did not provide Victim Impact Statements but were given the opportunity to do so. One victim, S.A. did not wish any charges laid and refused to testify at the preliminary inquiry. However, the victim, H.F. had difficulty testifying at the preliminary inquiry and it appears this matter has had a negative impact on her. The Attitude of the Offender [ 25 ] The offender pled guilty to the offences which is accepted as an acknowledgement of wrongdoing. I am satisfied that he now realizes the criminality of his conduct.

He was respectful with the probation officer and answered all questions. He displayed the same respectful demeanor during his many court appearances. He has been on a strict recognizance with 15 conditions since December 17, 2014 and the Crown is unaware of any breaches. [ 26 ] However, it is noted in the pre-sentence report that Mr. Roberts minimized his actions and projected blame by stating, “The girls were just as much at fault as anyone else, as they wanted to have fun and be around older people.” [ 27 ] Mr. Roberts expressed frustration because all other persons charged had their matters withdrawn.

The Crown explained this was precipitated by the difficulty in eliciting evidence from the victims regarding these persons. While the offender may feel the victims engaged in some deception regarding their ages and he has been singled out in terms of being charged, he must realize that he was 31 years old, hosting a party with intoxicating substances being available, the party became sexual in nature and clearly, he had a responsibility to take all reasonable steps to ascertain the ages of the victims. That information was readily available to him, for example, from Austin. [ 28 ] However, Mr.

Roberts was very reckless and irresponsible in not doing so and the victims’ ages were not a concern to him during the party as his focus was on his own enjoyment. In acting in the manner he did, he is clearly guilty of sexual interference and he is quite deserving of punishment. Prior Criminal Record [ 29 ] The offender has no prior criminal record which is a significant mitigating factor. Prospects of Rehabilitation [ 30 ] The offender is now 34 years old and has strong support from his mother.

He had a very difficult childhood as he was abused emotionally and physically by his stepfather and was a witness to domestic violence. He began using alcohol and marijuana in his early teens but managed to maintain employment and remain away from the court process. [ 31 ] After a failed relationship, he partied hard involving the use of opiates and within a short time, he was addicted. After being charged, Mr. Roberts made efforts to control his consumption of alcohol but could not overcome his desperate opiate addiction.

He described in a forthright manner that he would cut a truckload of wood for just one pill. For the past eight months, he has been in the methadone program and his doctor reports he is attending all appointments. The offender feels this has enabled him to take back control of his life. I believe, as does the Crown, that his prospects of rehabilitation are positive. [ 32 ] It is worth noting that he is deemed a low risk to reoffend with respect to sexual offences. He was also considered a suitable candidate for probation and community supervision.

Pre-Sentence Report [ 33 ] The offender was 31 years old on the date of the offences and is now 34. He completed grade 10 education by being advanced yearly and left school at age 16. He struggled academically and was diagnosed with Attention Deficit Hyperactivity Disorder and eventually prescribed Ritalin. [ 34 ] The offender had an unhappy and difficult childhood as I stated previously. His mother was the victim of domestic violence, which was witnessed by him as a child. Eventually, his mother began a relationship with a man who was kind and supportive to Mr.

Roberts but unfortunately, he had his own issue with drugs. Mr. Roberts began using substances such as alcohol and marijuana in his early teens and around 2013, was using Percocet and morphine. He had been employed throughout the years and had obtained his license as a heavy equipment operator. His employment ended when he was charged with the current offences. Presently, he is in receipt of income support. [ 35 ] He has been in the methadone program with Dr. Young and is reported to be doing very well and attending all appointments. Need for Specific and General Deterrence

[ 36 ] There is a need for specific and general deterrence in this case.

Section 718.01 of the Criminal Code mandates that in cases of sexual assault involving young persons, denunciation and specific and general deterrence are the primary sentencing considerations. conclusion [ 37 ] The joint submission of one year imprisonment on each offence which is the minimum prescribed by Parliament and particularly, to be served concurrently, is on the very low end of the sentencing range. I have considered the mitigating factors of the guilty plea and lack of a prior criminal record and the aggravating factor that the offences involved the abuse of persons under the age of 18 years.

This matter involved the sexual touching of two female children, age 14 and 15 years (who were consuming alcohol) by a 31 year old male hosting a party. [ 38 ] There is a great disparity in the ages of the offender and the victims. The facts may be distinguished from Norton , Barrett and Payne (supra) in which three year terms of imprisonment were imposed as the Crown in the case before me emphasized it is not alleging sexual intercourse. Therefore, the nature of the sexual activity was not at the highest end. There was no force used by Mr.

Roberts and no resistance to overcome. [ 39 ] The Crown acknowledged this would be a difficult case to prosecute successfully and there is a “huge quid pro quo ”. The victim, A.S., did not disclose any sexual activity and did not testify at the preliminary inquiry as she produced a medical note saying it was “harmful” for her to do so. The Crown was direct in stating that A.S. did not want anything to do with this matter as she felt she made choices at the party and that she was old enough to do so and no one should have been charged.

The victim, F.H. began to testify at the preliminary inquiry but was unable to continue and left the CCTV room in the courthouse in a very angry manner. She was persuaded to return and then expressed her desire to testify in the courtroom but again, was unable to do so. The Crown was forced to withdraw charges against two accused and acknowledged the case against Mr. Roberts “had its weaknesses”. [ 40 ] The Crown proceeded by indictment which dictated the minimum sentence of one year imprisonment. If the Crown had proceeded summarily, the minimum sentence is 90 days imprisonment.

The Crown pointed out that its agreement to request concurrent sentences was a major component of the joint submission. [ 41 ] I have considered the extent of the sexual activity, the guilty plea, the lack of a criminal record, the weaknesses in the Crown’s case, the uncertainty of the outcome if the matter had proceeded to trial, the positive steps taken by Mr. Roberts to address his opiate addiction and the low risk to reoffend with respect to the sexual offences.

I am of the view that accepting the joint submission will not bring the administration of justice into disrepute or be contrary to the public interest as it is not so markedly out of line with the expectations of reasonable persons aware of the circumstances of this case that they would view it as a breakdown in the proper functioning of the criminal justice system. disposition [ 42 ] Therefore, Mr.

Roberts is sentenced on Court No. 1 – sexual interference in relation to F.H. – incarceration for one year; Count No. 2 – sexual interference in relation to A.S. – incarceration for one year but to be served concurrently less 18 days credit for pre- sentence custody as requested by counsel. [ 43 ] Following his release from prison, he is placed on supervised probation for two years with the following conditions: 1. To keep the peace and be of good behaviour; 2. Report to the probation officer within two working days and thereafter as required; 3.

To participate fully in any sexual offender awareness and counselling programs as may be recommended by the probation officer; and 4. To have no contact nor communication with F.H. or A.S. [ 44 ] He is also subject to the following Orders: 1. An order pursuant to

section 490.012(1) of the Sexual Offenders Information Registration Ac t, for life. 2. A DNA order under

section 487.051(1) of the Criminal Code ; 3. A firearms prohibition order for 10 years from the date of his release from prison, pursuant to section 109(1) (

a) of the Criminal Code ; and 4. Victim Fine Surcharges for both offences under section 737(2) (b)(ii) of the Criminal Code in the amount of $400 in total and he is given one year to pay. Thank you counsel.

_____________________________ Kendra J. Goulding Justice