Courts Martial

COURT MARTIAL

Citation: R. v. Liu, 2003 CM 021

Date: 20030116

Docket: S200302

Standing Court Martial

14 Wing Greenwood

Greenwood, Nova Scotia, Canada

Between:

Her Majesty the Queen

- and –

Corporal C.A.T. Liu, Offender

Before: Commander C.J. Price, M.J.

SENTENCE

(Orally)

[1]                    Corporal Liu, in determining sentence the court has considered the circumstances surrounding the commission of these offences, the mitigating circumstances raised by your counsel, including the cases and representations that have been made, but also, I have considered the applicable principles of sentencing. These principles have been described in various ways. They relate to firstly, the protection of the public which includes the interests and protection of the Canadian Forces; secondly, there is the punishment of the offender; thirdly, the deterrent effect of the punishment, not only on the offender, which is, in turn, specific deterrence, but also on general deterrence; that is, deterrence of those who might be tempted to commit similar offences to what you have committed; and fourthly, but not least, there is the reformation and rehabilitation of the offender.

[2]                    The prime principle of sentencing is the protection of the public, and in the case of offences under the Code of Service Discipline, the maintenance of discipline. And the court must determine if that protection and maintenance of discipline would best be served by deterrence, rehabilitation, punishment, or a combination of those factors. The prime sentencing factor here, I believe, is that of general deterrence. Now, the court has also given consideration to the factors of proportionality of the sentence in relation to the offender and the accountability of the offender for his actions. While the accused should be accountable for his actions, the sentence shall not, on the other hand, be disproportionate in relation to the offence. I have also taken into account the direct and indirect effects of the sentence I am about to impose, and I am required to do that by regulation. As well, I have considered the precedent cases that were provided by counsel, and I have scrutinized the documents pertaining to your pay and service. And I have also, of course, considered the Personnel Evaluation Report (PERs) that were submitted and the letters that were submitted by your counsel.

[3]                    Section 85 and section 83 of the National Defence Act are objectively serious offences for the very good reason that a military cannot function without discipline. Obedience to orders and respect for superiors are fundamental. This offence occurred in the workplace, on the job, involved a major, a chief warrant officer, and a master warrant officer. You also have a conviction for quarrelling which ultimately precipitated the charges you have just been convicted of. However, some of your PERs refer to you as a team player and an inspirational team member, and I find that significant. I must, of course, consider both the offender and the offence when imposing sentence. I accept Corporal Liu's counsel's comments that his behaviour was out of character. His emotional state at the time these events occurred very probably played a significant part in his outburst of the 6th of February 2002. No doubt the unfortunate way he was treated with respect to the extra work and drill issue contributed to his condition. The unresolved harassment complaint was, and remains, apparently, an irritant.

[4]                    Corporal Liu has significant financial burdens. He testified, that while this trial was ongoing, in fact, many of his household goods were stolen. He has two children, one of whom he pays maintenance for. He is also, according to him, in a very expensive custody dispute at the moment. The viva voce evidence from previous supervisors was to the effect that he is a very good worker. Both would accept him back in their respective organizations. He was described by one of the witnesses as a subject matter expert in avionics. His technical expertise and superior personal qualities are reflected in a number of very impressive PERs submitted to the court. I am also very impressed by the fact that he apologized to the previous commanding officer for his actions on the 6th of February 2002. And this, of course, is an important sign of remorse.

[5]                    Corporal Liu is now, by his account, medically fit and happy in the workplace. He still, of course, has difficult financial challenges. I do not consider specific deterrence to be an issue here since I believe this incident was a one-of-a-kind brought on by a constellation of circumstances. Corporal Liu, you have much to offer to the Canadian Forces, according to the testimony I have just heard and a review of the PERs that were submitted by your counsel. It is to be hoped that you can now put this behind you, put your life and career on the right path, and of course, you must never forget you have two children to care for. I can tell you, but for the very substantial mitigating factors that I have just heard about, I want you to understand you would not be walking out of here as a corporal, if you were walking out at all.

[6]        These are serious offences and I want that to be understood. But of course, as I have just indicated, I cannot ignore the very substantial mitigating factors here, and I cannot ignore the personal financial situation of Corporal Liu and the fact that he has now put things right and his career and so forth seem to be on the right track. I sentence you to a reprimand and a fine of $100. The fine will be paid in monthly instalments of $20 beginning on the 1st of March 2003.

Counsel:

Major R. Holman, Regional Military Prosecutions Atlantic, Counsel for Her Majesty the Queen

Mr David J. Bright, QC, Boyne-Clarke Barristers and Solicitors, Halifax, Nova Scotia, Counsel for Corporal C.A.T. Liu