COURT FILE NO.: CR-15-30000308-0000
DATE: 20180913
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
REMO ROMANO
Defendant
M. Lai and R. Schwartz, for the Crown
W. MacKenzie, for the Defendant
HEARD: June 21, 2018
B. P. O’marra, J.
REASONS FOR SENTENCE
THE OFFENCE
[1] A brief overview of the evidence at trial will suffice for sentencing purposes.
[2] On February 12, 2014 at 8:19 p.m., 18 year old Carla Abogado was returning home from a part-time job when she was struck and killed by a Ford F-150 truck which Mr. Romano was operating at a high speed. At the time she was struck she was jaywalking, taking the most direct route from the bus stop where she was dropped off to her home across the street.
[3] Mr. Romano was an on duty police officer at the time. He was driving an unmarked vehicle. He was driving at a speed substantially over the posted speed limit in an effort to catch up with other members of a surveillance team he was assigned to assist. The surveillance team was investigating a series of property crimes that night.
[4] Three juries have tried this case. The first trial resulted in a hung jury. The second trial resulted in an acquittal. The Crown successfully appealed and a third trial was ordered. The third trial resulted in a finding of guilt for dangerous driving causing death.
POSITION OF THE PARTIES
[5] The Crown seeks a 12 month jail term based significantly on the following factors:
The fact that a death was caused.
A lack of genuine remorse.
The need to reflect general deterrence. The Crown specifically and fairly submitted that in this particular case there was no need to reflect specific deterrence.
[6] The Defence submits that there should be a non-custodial disposition based on Mr. Romano’s positive, even exemplary, personal and professional antecedents.
[7] Most crimes committed by motor vehicle operation do not involve an intention to hurt, let alone kill anyone. The potential for catastrophic injuries elevates the seriousness of such crimes. The consequences of the injuries require consideration of substantial sentences.
[8] There is no dispute that Carla Abogado’s tragic death must be an important factor in determining an appropriate sentence. However, on the issues of remorse and general deterrence I take a different view than the Crown.
REMORSE
[9] I find that Mr. Romano has made a genuine expression of remorse for Carla Abogado’s death. I will explain why I made this finding below. The issue of remorse must be approached carefully in the criminal law context. The following considerations apply:
Everyone charged with a criminal offence has a right to have guilt or innocence determined after a trial on the merits. An accused who is proven guilty must not be punished on sentence for having a trial.
Genuine remorse is a mitigating factor on sentence to be weighed along with other relevant facts.
A lack of remorse is the absence of what otherwise would be a mitigating factor.
[10] Remo Romano expressed remorse related to Carla Abogado’s death in the Pre-Sentence Report dated March 6, 2018. He reiterated his remorse in open court after the evidence and submissions on sentence were completed. Mr. Romano and his counsel have both submitted that they understand that the victim’s family has accepted his expression of remorse.
[11] The Crown submits that there is a lack of genuine remorse for the proven criminal responsibility for Carla Abogado’s death. The Crown submits that the proffered remorse relates to the legal and personal consequences attendant on the jury’s guilty verdict. The Crown agrees that an accused person must not be punished for having a trial. Rather, she submits that there should not be credit in this case for genuine remorse as a mitigating factor.
[12] The attitude of a victim’s family toward someone who has been proven guilty of causing death or serious bodily harm has limited legal significance on sentence. This is a discrete issue from the impact of the death on the victim’s family. Long before s. 722 of the Criminal Code, R.S.C, 1985, c. C-46, was enacted sentencing courts have considered the impact of crime on victims at sentencing. It is now mandatory to consider impact on the victims. I will do so in this case.
[13] There are cogent reasons why very limited legal significance is assigned to the victims’ attitude toward the accused at the sentencing phase. It would be an error of law for a court to impose a more severe sentence because the victims want to see such a sentence imposed. By the same token, a court should not impose a lesser sentence than is required or appropriate where the victims take a more benevolent or forgiving view of what the sentence should be.
[14] Everything I have learned about Carla Abogado and her surviving family reveals that they are generous and kind people who have suffered a dreadful loss. The sentence I will impose reflects this. That same kindness and generosity of spirit rendered them open to at least receive an expression of remorse from Remo Romano for Carla’s death. This interaction does not determine the remorse issue for sentencing purposes.
[15] It is agreed that an accused must not be punished on sentence for pleading not guilty and having a trial. That includes a scenario where the accused testifies and asserts he is not guilty. That is what happened in this case. Mr. Romano’s assertion during trial is not inconsistent with a genuine expression of remorse at the sentencing stage.
[16] The Crown did not allege, and was not obliged to prove, an intent to cause any bodily harm, let alone death, in order to prove the offence alleged. There were legitimate factual and legal issues litigated at trial. None of that negatives what I perceive and accept as Mr. Romano’s genuine expression of remorse for the tragic consequences to the victim and her family, as well as regret for himself and his family.
GENERAL DETERRENCE
[17] The Crown submits that general deterrence must be reflected in this sentence. This general deterrence would presumably relate to other peace officers who drive cars as part of their routine duties.
[18] There is no doubt that some categories of motor vehicle offences require a significant degree of general deterrence.
[19] Impaired operation of a motor vehicle involves offences often committed by persons with no record and otherwise good character. In decisions since R. v. McVeigh (1985), 1985 CanLII 115 (ON CA), 22 C.C.C. (3d) 145 (Ont. C.A.), it is clear that where such offences involve death or serious bodily harm general deterrence is the overriding factor. Indeed, for those offences good character evidence is of diminished significance on sentence.
[20] I have not been referred to many cases where police officers on duty were convicted of dangerous driving causing death or serious bodily harm. To be clear, one case is too many. Each case has its inevitable element of tragedy and loss. However, unlike impaired operation of a motor vehicle, or leaving the scene of an accident, I do not see a basis to apply a significant degree of general deterrence in this case. In my view, it is certainly not an overriding or dominant factor.
THE RANGE OF SENTENCE
[21] The parties agree that Criminal Code s. 249(4) and s. 742.1(c) combine to make a conditional sentence unavailable for this offence. I agree with Green J.’s comments in R. v. McGill, 2016 ONCJ 138, [2016] O.J. No. 1346, at para. 47, that a suspended sentence is not a lawful substitute for a conditional sentence.
[22] I have considered the applicable purpose and principles for sentencing as set out in the Criminal Code commencing at s. 718, including s. 718.1 (proportionality), and s. 718.2(a) (aggravating and mitigating circumstances).
[23] The Crown accurately referred to the relative paucity of cases in which a police officer has been criminally convicted of a driving-related fatality. This paucity relates specifically to “on duty” incidents involving police officers. The infrequency of such incidents suggests that there is a lesser need for general deterrence compared to other types of driving fatalities (for instance cases involving the consumption of alcohol or leaving the scene of an accident). To be clear, one fatality is too many. However, I do not discern an overriding need from the case law to deter other officers for on duty incidents.
REVIEW OF THE CASE LAW ON THE RANGE OF SENTENCES
[24] R. v. Storey (1 January 2013), Thunder Bay, 16/10 (Ont. S.C), involved a guilty plea mid-trial to the lesser and included offence of dangerous driving causing death. The accused officer was on duty testing a vehicle with reported steering and stalling issues. He drove on a highway at a high rate of speed toward an access road controlled by an oversized stop sign. The 18 year old victim drove her vehicle onto the highway and may not have come to a full stop before doing so. The officer’s car struck the driver’s compartment and killed the victim. There was a joint submission on a sentence of two years less a day plus a DNA order and a five year driving prohibition.
[25] In R. v. Laurin, 2017 QCCQ 14392, [2017] J.Q. no 17292, an on duty officer was enroute to assist a colleague who was transporting a heavily intoxicated and very agitated man to hospital. The officer drove at a high rate of speed with the sirens and lights activated on a two-lane country road lined with homes and businesses. The victim driver and her two passengers were in a car in front of the officer. As the officer went to pass the victim, she made a left turn, making the collision inevitable. The victim was killed and her passengers were injured. The officer was travelling at 182 kph in a posted 90 kph zone. The officer was found guilty of dangerous driving causing death and dangerous driving causing bodily harm. The court imposed a sentence of 12 months jail plus 2 years’ probation. This case is currently under appeal.
[26] In R. v. Blackwell (1994), 1994 CanLII 1069 (ON CA), 70 O.A.C 111 (C.A.), a young, on duty officer was convicted of dangerous driving causing death. The officer responded to a “serious, life threatening event” and was travelling at least 50 percent faster than anybody else on the road. A 60 day sentence was upheld on appeal.
[27] In R. v. Markovic (1998), 1998 CanLII 13206 (QC CA), 17 C.R. (5th) 371 (Que. C.A.), an inexperienced, on duty officer was convicted of dangerous driving causing death. The officer responded to an emergency call in a marked cruiser with his emergency lights activated. He drove at a high rate of speed in a school zone with a posted limit of 50 kph. He ran a red light. The 14 year old victim had a green light but ran diagonally from the cross walk to catch a bus. The bus impeded the officer’s line of sight. He activated his siren in two blasts but was too late. A conditional sentence was not available at the time of trial but was at the time of appeal. A 45 day sentence was varied to be served conditionally.
[28] In R. v. Porto, 2018 ONCA 291, 23 M.V.R. (7th) 1, an on duty officer was convicted of dangerous driving causing bodily harm. The officer responded to an emergency call related to a serious motor vehicle accident. He drove on a two-lane highway through a village at a speed of 178 kph in a posted 50 kph zone. He activated his emergency lights and sirens. The officer tried to pass the victim’s vehicle. The victim failed to pull over and instead turned left in front of the officer’s car. “Miraculously” no one was seriously injured. A $2,500 fine plus a 12 month driving prohibition was upheld on appeal.
[29] In R. v. Wilby, 2015 ONCJ 840, [2015] O.J. No. 7326, an on duty officer was convicted of dangerous driving. The officer was driving in a student area of Kingston on St. Patrick’s Day. The officer was dispatched to assist a colleague who was pursuing the victim, a suspect who had fled on foot. The victim was wanted for mischief. The officer performed a U-turn, accelerated to 53 kph and drove onto a sidewalk to block the victim and in so doing struck him. The victim’s injuries were serious, including leg and facial injuries, a broken knee cap, ligament damage, lacerations to his leg and face, and a broken nose. On sentence the court accepted a joint submission for a $1,700 fine.
[30] R. v. Winsor, 2010 ONSC 2639, 95 M.V.R. (5th) 193, involved a road rage incident that left one man dead and the other convicted of dangerous driving causing death and failing to remain at the scene of an accident. The accused had no prior record. At para. 41, Wein J. commented that:
. . . the legislature has determined that non-custodial sentences, even quasi-custodial sentences including terms of house arrest, do not provide sufficient denunciation or deterrence for this type of behaviour.
[31] I agree with Wein J.’s comments but also find that the reference to “this type of behaviour” refers to road rage incidents that were apparent in Winsor. Road rage incidents cause mayhem and carnage on our roads with distressing regularity. Those type of fact situations call out for general deterrence and denunciation. The matter before me does not involve anything akin to a road rage incident.
PERSONAL CIRCUMSTANCES OF REMO ROMANO
[32] A very thorough Pre-sentence Report was filed. I will refer to portions of that report.
[33] Remo Romano is 47 years old. He met his wife in 1996. She had three children from a previous relationship. They were very young when they began dating. Remo Romano embraced and loved those three children as his own from the outset. Two further children were born of the relationship with his wife. The five children are now ages 28, 25, 23, 14, and 11. Family has always been the center of Mr. Romano’s life.
[34] Remo Romano joined the York Regional Police Service in January 2003. He has been on administrative duties since February 2014. His record as a police officer preceding the date of the offence is exemplary. Officers who worked with him, as well as supervisors, have provided numerous letters attesting to the professionalism and integrity he displayed in his work as a police officer. He has no criminal record preceding this matter.
[35] Mr. MacKenzie filed two extensive volumes of materials containing letters attesting to Mr. Romano’s good character. They were grouped under “Community Character Reference Letters” and “Police Character References”. Mr. MacKenzie filed further related materials in the course of sentence submissions. I have reviewed and considered all of them.
[36] The Pre-Sentence Report indicates that a Dr. Mohammadi has been Remo Romano’s primary care physician since 2009. Medical diagnoses since that time have included anxiety, sleep apnea, hypertension, hyperlipidemia, and peripheral vascular disease. His last cardiac evaluation revealed a reduction of the left ventricular function which requires follow up with a vascular surgeon.
[37] Remo Romano reported that he experienced trauma related to work related incidents in 2004 and 2007. The former involved a fellow officer who was hit by an impaired driver but survived. Mr. Romano had been scheduled to replace that officer before the incident. The incident in 2007 involved a fellow surveillance team member who was injured on duty and succumbed to those injuries.
[38] Remo Romano has been diagnosed by a clinical psychologist as having Post Traumatic Stress Disorder related to the incident before this court. It is reported that the ongoing trials and testimony have been a significant contributor to ongoing stressors and triggers which have created an inability to address recovery and management of the initial trauma.
VICTIM IMPACT
[39] I have considered the Victim Impact Statement filed and read out in court from Sonia Abogado (Carla’s mother on behalf of herself and Guillermo Abogado, Carla’s father). I have also considered the Victim Impact Statement filed and read out in court by Paula Abogado (Carla’s sister). This very close family immigrated to Canada from the Philippines in 2003. Carla’s parents worked very hard from the outset to provide a good and stable life for the family. Carla pursued the role of a second parent to her two younger siblings while her parents worked. Their Christian faith was an integral part of the family life before and after Carla’s death.
[40] Carla’s death has had a devastating impact on the entire family. In addition to financial issues they have experienced depression, anger, and stress. The ongoing legal proceedings were a constant reminder of the loss of Carla. Paula Abogado stated that “we never normalized the loss of my sister, instead we learned how to live with the pain.”
ANCILLARY ORDERS
[41] The Crown has not sought any ancillary orders. I specifically asked her position about a driver’s licence suspension. She advised that she does not seek such an order from this court. Mr. Romano will receive a notice from the Ministry of Transport, if he has not already, setting out the length and effective date of any driving privilege suspension related to this incident.
CONCLUSION
[42] Remo Romano stands before this court with a personal, family, and professional history that is commendable. He has no criminal record and I have not been advised of any reprimands or misconduct findings related to his role as a police officer. He is 47 years old. He has raised five children with his wife in a mutually supportive family.
[43] The Abogado family are clearly kind and generous, as was Carla. They have poignantly conveyed to this court the devastating loss of this wonderful young lady. Their family and society have lost a loved and valued member. That loss must be reflected in the sentence I impose.
[44] In light of all the mitigating and aggravating factors in this tragic case I find that a custodial sentence is required. I also find that the range submitted by the Crown is excessive. This finding is based on what I discern to be genuine remorse expressed by Mr. Romano and the diminished need for general deterrence in a case such as this for the reasons I have stated.
[45] RESULT: Remo Romano is sentenced to 8 months imprisonment.
[46] I am grateful to counsel for their thorough and helpful submissions on this tragic case.
B. P. O’Marra, J.
Released: September 13, 2018
COURT FILE NO.: CR-15-30000308-0000
DATE: 20180913
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
REMO ROMANO
REASONS FOR SENTENCE
B. P. O’Marra, J.
Released: September 13, 2018