Courts Martial

Citation:  R. v. Corporal W.J. Venator, 2009 CM 2010

Docket:  200837

STANDING COURT MARTIAL

CANADA

NEW BRUNSWICK

CANADIAN FORCES BASE GAGETOWN

Date:  29 April 2009

PRESIDING:  COMMANDER P. LAMONT, M.J.

HER MAJESTY THE QUEEN

v.

CORPORAL VENATOR

(Offender)

SENTENCE

(Rendered Orally)

[1]        Corporal Venator, having accepted and recorded your pleas of guilty to three charges of possession of cannabis (marijuana) this court now finds you guilty on charges one, two, and three.

[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 6, and the evidence and documentary materials submitted during the mitigation phase, as well as 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 blending of these goals tailored to the particular circumstances of the case.

[5]        As I told you when you tendered your pleas of guilty, section 139 of the Na­tional Defence Act prescribes the possible punishments that may be imposed at court 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.  In arriving at the sentence in this case, I have considered the direct and indirect consequences for the offender of the findings of guilt and the sentence I am about to impose.

[6]        The facts of the offences are set out in Exhibit 6, the Statement of Circum­stances.  On three occasions between April and October of 2006, the offender was in possession of quantities of cannabis (marijuana) which he gave to another individual in return for money.  Unknown to the offender, the other individual was cooperating with military investigators as an undercover operator.  On each of the first two occasions, the quantity involved was a bit less than 1 ounce for which the offender received $200.  On the last occasion, the offender had about 2 ounces of marijuana which he gave to the undercover operator for $400.  The transactions occurred either at the residence of the offender, a base PMQ at CFB Gagetown, or in the parking lot of the Canex on the base.

[7]        Counsel before me jointly recommended a sentence of six months' imprison­ment to be suspended and a fine in the amount of $1,000.  The sentence to be pro­nounced is, of course, a matter for the court.  But where, as in this case, both parties agree on a recommended disposition, that recommendation carries considerable weight with the court.  The courts of appeal across Canada, including the Court Martial Appeal Court in the case of Private Chadwick Taylor, have held that the joint submission of counsel as to sentence should be accepted by the court unless the recommended sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest.

[8]        I agree with the submission of the prosecution that these offences are indeed very serious.  I accept the evidence in documentary form which details the mental health of the offender.  From the time of his tour in Afghanistan, between August 2005 and February 2006, it is clear that the offender suffers post-traumatic stress disorder as a direct result of his experiences on operations, and the medical experts have diagnosed a cannabis dependancy resulting from his self-medication in order to deal with the stresses and anxieties resulting from those experiences.  I also accept the evidence contained in the reports of the medical practitioners so far as it details the life and personal circumstances of the offender.  But I do find the reports going back at least to December of 2007 at the latest to be somewhat dated and as a result I do not find them of much assistance in assessing the offender's current state of health.

[9]        The possession of more than minimal quantities of cannabis (marijuana) over a period of months, committed in a military milieu will ordinarily attract a punishment of a period of incarceration.  The joint recommendation of counsel before me seems to acknowledge this.  The question that has troubled me is whether this is a proper case in which to suspend the carrying into effect of the punishment of incarceration.  On one view, general deterrence would seem to require that actual imprisonment be imposed, but on the other hand, the Court Martial Appeal Court has recognized that the power of this court to suspend the carrying out of a punishment of imprisonment may be properly exercised in order to mitigate the severity of the punishment in a particular case.  In my view, this is one of those cases.

[10]      The offender has recognized his responsibility by pleading guilty.  The offences occurred some substantial time ago, at a time when the offender was having great difficulty dealing with the effects on his mental health of his service in theatre.  I accept the evidence that the offender is a very good performer at work but I am told that the offender will be released from the Canadian Forces despite the recommendations in writing from supervisory personnel within his unit, including that of his commanding officer.

[11]      I am mindful also that the offender is presently the main caregiver for his four young children while his spouse, who recently joined the Canadian Forces, is away from home doing basic training.  In all the circumstances of this case, both the circumstances of the offences and of the offender himself, I cannot say that the recommended sentence would bring the administration of justice into disrepute or that it is otherwise contrary to the public interest and, accordingly, I accept the joint submission.

[12]      Corporal Venator, you are sentenced to imprisonment for a period of six months and a fine in the amount of $1,000.  Under section 215 of the National Defence Act, the carrying into effect of the punishment of imprisonment is suspended.  The fine is to be paid in monthly instalments of $200 each, commencing 1 June 2009 and continuing for the following four months.  In the event you are released from the Canadian Forces, for any reason, before the fine is paid in full, the then outstanding unpaid balance is due and payable the day prior to your release.

                                                         COMMANDER P. LAMONT, M.J.

COUNSEL:

Major J.J. Samson, Regional Military Prosecutions Eastern Area

Counsel for Her Majesty The Queen

Mr David J. Bright, Barrister, Boyne Clarke Barristers and Solicitors, 33 Alderney Drive, Darmouth, Nova Scotia

Ms Jan Murray, Barrister/Solicitor, Boyne Clarke Barristers and Solicitors, 33 Alderney Drive, Darmouth, Nova Scotia

Counsel for Corporal W.J. Venator