Courts Martial

Citation: R. v.  Corporal S.E.P. Richard, 2009 CM 2008

Docket: 200878

GENERAL COURT MARTIAL

CANADA

NEW BRUNSWICK

CANADIAN FORCES BASE GAGETOWN

Date: 16 April 2009

PRESIDING: COMMANDER P.J. LAMONT, M.J.

HER MAJESTY, THE QUEEN

v.

CORPORAL S.E.P. RICHARD

(Offender)

SENTENCE

(Rendered Orally)

[1]                    Corporal Richard, having accepted and recorded your plea of guilty to the first and only charge; that is, a charge of neglect to the prejudice of good order and discipline, this court now finds you guilty of the first charge.

[2]                    It now falls to me to determine and to pass a sentence upon you.  In so doing, I have considered the principles of sentencing that apply in the ordinary courts of criminal jurisdiction in Canada and at courts martial.  I have, as well, considered the facts of the case as described in the statement of circumstances, Exhibit 3, as well as the other materials received in the course of these proceedings, and the submissions of counsel, both for the prosecution and for the defence. 

[3]                    The principles of sentencing guide the court in the exercise of its discretion in determining a fit and proper sentence in an individual case.  The sentence should be broadly commensurate with the gravity of the offence and the blameworthi­ness, or degree of responsibility, and character of the offender.  The court is guided by the sentences imposed by other courts in previous similar cases, not out of a slavish adherence to precedent, but because it appeals to our common sense of justice that like cases should be treated in similar ways.  Nevertheless, in imposing sentence, the court takes account of the many factors that distinguish the particular case it is dealing with, both the aggravating circumstances that may call for a more severe punishment and the mitigating circumstances that may reduce a sentence.

[4]                    The goals and objectives of sentencing have been expressed in different ways in many previous cases.  Generally, they relate to the protection of society, which includes, of course, the Canadian Forces, by fostering and maintaining a just, a peaceful, a safe, and a law-abiding community.  Importantly, in the context of the Canadian Forces, these objectives include the maintenance of discipline, that habit of obedience which is so necessary to the effectiveness of an armed force.  The goals and objectives also include deterrence of the individual so that the conduct of the offender is not repeated, and general deterrence so that others will not be led to follow the example of the offender.  Other goals include the rehabilitation of the offender, the promotion of a sense of responsibility in the offender, and the denunciation of unlawful behaviour.  One or more of these goals and objectives will inevitably predominate in arriving at a fit and just sentence in an individual case.  Yet it should not be lost sight of that each of these goals calls for the attention of the sentencing court, and a fit and just sentence should reflect a wise blend of these goals tailored to the particular circumstances of the case.

[5]                    As I explained to you when you tendered your plea of guilty, section 139 of the National Defence Act prescribes the possible punishments that may be imposed at courts martial.  Those possible punishments are limited by the provision of the law which creates the offence and provides for a maximum punishment.  Only one sentence is imposed upon an offender whether the offender is found guilty of one or more different offences, but the sentence may consist of more than one punishment.  It is an important principle that the court should impose the least severe punishment that will maintain discipline.

[6]                    In arriving at the sentence in this case, I have considered the direct and indirect consequences of the finding of guilt and the sentence I am about to impose.

[7]                    The facts of this case are not complicated.  They involve what is said to be the negligent discharge of a weapon; that is, a C7 rifle, carried by the offender, Corporal Richard, when he returned to the base at Kandahar Airfield after a period of patrolling at a forward operating base.  He and others, no doubt, were required to ensure that their weapon was no longer loaded, and for that purpose it appears that certain checks were required to be done and ultimately the weapon was to be fired into what was referred to as a clearing barrel.  On this occasion, when Corporal Richard was checking his weapon, he pulled the trigger, apparently intending to ensure that the weapon was no longer loaded.  Because he had failed to perform the other checks, he did not realise, until he fired the weapon, that it was still loaded, and the round, presum­ably, ended up in the clearing barrel.

[8]                    I accept the guilty plea of the offender as a genuine indication of remorse on his part for his conduct on this occasion.  There is at least an issue as to whether or not his behaviour on this occasion amounted to, not simply a departure but a marked departure from the standard of care that would be required of a prudent soldier in the circumstances he faced at the time.  As a result, I consider his plea of guilty to be a genuine indication of remorse on his part. 

[9]                    I am impressed with the material which was brought before me in the course of the mitigation phase demonstrating that the offender is highly regarded by his superiors.  In the something over five years now of service in the Canadian Forces, Corporal Richard has acquitted himself well.  He has completed what no doubt was a demanding tour in Afghanistan, and appears before this court without any record of previous disciplinary infractions.  He is by all accounts a fine soldier.  The other mitigating circumstance that weighs with the court in this case is what appears to be a delay in bringing the proceedings to trial by court martial.  A period of some five months elapsed from the time of the offence until the matter was referred by the referral authority in the chain of command to the Director of Military Prosecutions for the consideration of charges.  There is no information or material before me explaining why a charge of this nature should have taken this lengthy period of time to be referred to the prosecution`s authority.  As a result, of course, the offender has had to await develop­ments before the matter was brought before a court and before he could enter his guilty plea. 

[10]                  On the facts of this case, both the prosecution and the defence join in their submission to the court that a fit disposition in this case would be a fine in the amount of $200.  As counsel have correctly pointed out, the matter of the sentence to be imposed is, of course, a discretionary matter for the court.  But where, as in this case, both parties agree on a recommended disposition, that recommendation carries great weight with the court.  The courts of appeal across Canada, including the Court Martial Appeal Court in the case of Private Taylor^[1] decided 15 January 2008, all those courts have indicated that the joint submission of counsel as to sentence should be accepted by the sentencing court unless to do so would bring the administration of justice into disrepute or is otherwise contrary to the public interest.

[11]                  When I consider the circumstances in this case, both the circumstances of the offender and the circumstances of the offence, I conclude that it is not contrary to the public interest nor would it bring the administration of justice into disrepute to accept the joint recommendation of counsel in this case, and accordingly I accept the joint submission.

[12]                  Corporal Richard, you are sentenced to a fine in the amount of $200.  The fine is payable forthwith.

Commander P.J. Lamont, M.J.

COUNSEL:

Major P. Rawal, Regional Military Prosecutions Atlantic

Counsel for Her Majesty The Queen

Lieutenant-Colonel D.T. Sweet, Directorate of Defence Counsel Services

Counsel for Corporal S.E.P. Richard