Courts Martial

Citation:  R. v. Leading Seaman D.J Dashney, 2009 CM 4001

Docket:  200837

STANDING COURT MARTIAL

CANADA

BRITISH COLUMBIA

CANADIAN FORCES BASE ESQUIMALT

Date:  13 January 2009

PRESIDING:  LIEUTENANT-COLONEL J-G PERRON, M.J.

HER MAJESTY THE QUEEN

v.

LEADING SEAMAN D.J. DASHNEY

(Accused)

SENTENCE

(Rendered orally)

[1]                    Leading Seaman Dashney, stand up.  Leading Seaman Dashney, having accepted and recorded your plea of guilty to charge number one, the court now finds you guilty of this charge.  You may sit down.

[2]                    The Statement of Circumstances to which you formally admitted the facts as conclusive evidence of your guilt and your testimony provide this court with the circumstances surrounding the commission of this offence.

[3]                    On 18 February 2008, Lieutenant(N) Desormeaux, the Engineering Officer of the Fleet Diving Unit Pacific, and PO1 Roussel conducted a divisional interview with you.  The purpose of the interview was, in part, to discuss terms of service and an offer to continue serving for an Indefinite Period of Service (IPS).

[4]                    Leading Seaman Dashney had previously been offered an IPS but had declined to accept the offer.  Lieutenant(N) Desormeaux had succeeded in obtaining a new IPS offer but in doing so, had learned of some discrepancies regarding the underlying reasons for Leading Seaman Dashney's refusal of the original offer.  These apparent

discrepancies became the subject of a heated discussion during the divisional interview in which, Leading Seaman Dashney was accused of lying by Lieutenant(N) Desormeaux.

[5]                    Following the divisional interview, on 18 February 2008, Leading Seaman Dashney, who was extremely agitated, spoke with PO1 Roussel and CPO2 Bakker, the Chief Engine Room Artificer, regarding his IPS offer and the divisional interview.  At some point during this conversation, referring to Lieutenant(N) Desormeaux, Leading Seaman Dashney said: "if she were a male, I would hit her for calling me a liar" and "if I were a civilian and in an union, I would resolve the problems here with a baseball bat", or words to that effect.

[6]                    A few days later, PO1 Roussel told Lieutenant(N) Desormeaux what Leading Seaman Dashney had said.  Lieutenant(N) Desormeaux felt uneasy, intimidated and scared as a result of what Leading Seaman Dashney said.  She called his career manager and told him that she was no longer interested in working with Leading Seaman Dashney.

[7]                    The principles of sentencing which are common to both courts martial and civilian criminal trials in Canada have been expressed in various ways.  Generally they are founded on the need to protect the public and the public, of course, includes the Canadian Forces.  The primary principles are the principles of deterrence that includes specific deterrence in the sense of deterrent effect on the offender personally as well as, general deterrence; that is deterrence for others who might be tempted to commit similar offences.  The principles also include the principle of denunciation of the conduct and last but not least, the principal of reformation and rehabilitation of the offender.

[8]                    The court must determine if protection of the public would best be served by deterrence, rehabilitation, denunciation, or a combination of those factors.

[9]                    The court has considered the guidance set out in sections 718 to 718.2 of the Criminal Code of Canada.  Those sections set out the principles and purposes of sentencing which are to denounce unlawful conduct, to deter the offender and other persons from committing offences, to separate the offender from society where necessary, to assist in rehabilitating offenders, to provide reparations for harm done to victims or to the community and to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.

[10]                  The court is also required, in imposing a sentence, to follow the directions set out in article 112.48 of Queen's Regulations and Orders which obliges it in determining a sentence to take into account any indirect consequences of the finding or of the sentence and impose a sentence commensurate with the gravity of the offence and the previous character of the offender.

[11]                  The court must impose a sentence that should be the minimum necessary sentence to maintain discipline.  The ultimate aim of sentencing is the restoration of discipline in the offender and in military society.  Discipline is that quality that every Canadian Forces member must have, which allows him or her to put the interests of Canada and the interests of the Canadian Forces before personal interests.  This is necessary because Canadian Forces members must willingly and promptly obey lawful orders that may have very devastating personal consequences such as injury and death.  I describe discipline as a quality because ultimately, although it is something which is developed and encouraged by the Canadian Forces through instruction, training and practice; it is an internal quality, it is one of the fundamental prerequisites to operational efficiency for any armed force.

[12]                  The prosecution and your defence counsel have jointly proposed the sentence of a reprimand and a fine of $1,000.  Your defence counsel has suggested a payment schedule of $200 per month.

[13]                  In the Court Martial Appeal Court decision in R. v. Paquette, [1998] C.M.A.J. No.8, stated clearly that a sentencing judge should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute or unless the sentence is otherwise not in the public interest.

[14]                  I will now set out the aggravating circumstances and the mitigating circumstances that I have considered in determining the appropriate sentence in this case.  I consider the following to be aggravating:  Although you do have a conduct sheet, the offence of drunkenness was committed in December 2001 and is totally unrelated to the present offence.  You used threatening language aimed at a commissioned officer in the presence of your immediate supervisor PO1 Roussel and CPO2 Bakker, the Chief Engine Room Artificer.  Your threats had a significant impact of Lieutenant(N) Desormeaux when they were related to her. You had served in the Navy for approximately 20 years when you committed this offence; you had enough experience to know better than to do that.

[15]                  As for the mitigating circumstances, I note the following:  It would appear from counsels addresses that you expressed a desire to plead to this charge at the earliest occasion. You have also testified and you have expressed remorse.  You have apologized for the stress and anxiety experienced by Lieutenant(N) Desormeaux.  Therefore, the court accepts that you do regret your actions and that you do take full responsibility for your actions. You have made some attempts to learn how to manage your anger by participating in eight anger management sessions in 2008.

[16]                  Your counsel described your meeting with PO1 Roussel and CPO2 Bakker as one between peers, as one of venting, as one where you thought you had a privileged platform.  I do not agree with this description.  PO1 Roussel was your immediate supervisor and you have testified that you did not feel supported by him in the previous meeting with Lieutenant(N) Desormeaux and that he was junior to you in your trade.  Also, I doubt the Navy perceives a CPO2 as a peer of a leading seaman.  You were in the presence of two non-commissioned officers who held senior leadership positions at your unit.  You threatened a commissioned officer, the Engineering Officer of your unit, in their presence.

[17]                  I hope that you fully understand the seriousness of those words.  Not only did you threatened to inflict bodily harm onto someone, you aimed those threats at a superior officer.  The Canadian Forces cannot tolerate such conduct.  Your conduct undermined one of the most important basis of any military force; that is discipline.

[18]                  Leading Seaman Dashney, stand up.  You have taken full responsibility for your actions and you have made some efforts in managing your anger.  You might have felt that you were wrongly accused of lying; there are other ways to deal with this type of situation.  I hope you have learned these other ways.

[19]                  I agree with the prosecution that the sentence must reflect primarily the principle of deterrence, general and specific.  I have reviewed the cases presented by counsel and I have considered the evidence in this case.  I have reviewed the guidance provided by the Court Martial Appeal Court in R. v. Taylor.  I will agree with the joint submission of counsel on sentencing, although I find that it is at the lowest end of the sentencing spectrum in this case.

[20]                  I sentence you to a reprimand and a fine in the amount of $1,000 to be paid in two monthly payments of $500.

                                     LIEUTENANT-COLONEL J-G PERRON, M.J.

Counsel:

Lieutenant-Commander S.C. Leonard, Regional Military Prosecutions Western Area

Counsel for Her Majesty The Queen

Lieutenant-Commander J.A. McMunagle, Directorate Defence Counsel Services

Counsel for Leading Seaman D.J. Dashney