Courts Martial

 

COURT MARTIAL

 

Citation:  R  v Lambert, 2011 CM 4013

 

Date:  20110509

Docket:  201043

 

Standing Court Martial

 

Canadian Forces Base Greenwood

Greenwood, Nova Scotia, Canada

Between: 

 

Her Majesty the Queen

 

- and -

 

Sergeant P.M. Lambert, Offender

 

 

Before:  Lieutenant-Colonel J-G Perron, M.J.

 

 

REASONS FOR SENTENCE

 

(Orally)

 

[1]        Sergeant Lambert, the court, at the conclusion of a complete trial, has found you guilty of having disobeyed a lawful command of a superior officer, and the court having found the evidence had proven charge number four directed that the proceedings be stayed on that alternative charge.  While deployed in Afghanistan, you travelled to CFB Greenwood while receiving Third Location Home Leave Travel Assistance, HLTA, contrary to the order of Major Boisvert.  The court must now impose a fit and just sentence.

 

[2]        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. 

 

[3]        The primary principles are the principles of deterrence, that includes specific deterrence in the sense of deterrent effect on you 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 principle of reformation and rehabilitation of the offender. 

 

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

 

[5]        The court has also considered the guidance set out in sections 718 to 718.2 of the Criminal Code of Canada.  The fundamental purpose of sentencing, as set out in section 718, is to contribute to respect for the law and the maintenance of a just and peaceful society by the imposition of just sanctions that have one or more of the following objectives:  the denunciation of unlawful conduct, deterring the offender and other persons from committing offence, separating the offender from society where necessary, assisting in rehabilitating offenders, providing reparations for harm done to victims or to the community, and the promotion a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.

 

[6]        Although I have considered the principles and purposes set out in sections 718 to 718.2 of the Criminal Code of Canada and have taken them into consideration when I considered the joint submission on sentencing, I am mindful that the ultimate aim of sentencing in the court martial process is the restoration of discipline in the offender and in military society.  The court must impose a sentence that should be the minimum necessary sentence to maintain discipline.

 

[7]        The prosecutor and your defence counsel have jointly proposed a sentence of a severe reprimand and a fine in the amount of $2, 000. 

 

[8]        The Court Martial Appeal Court has 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.

 

[9]        The principles of general and specific deterrence and denunciation are the most important sentencing principles in the present case. 

 

[10]      I will firstly address the aggravating factors of this case:

 

The offence of disobeying a lawful command of a superior officer is objectively one of the most serious offences under the Code of Service Discipline since the maximum sentence is imprisonment for life;

 

You were a senior non-commissioned officer with 23 years of experience in the Canadian Forces at the time of the offence.  You disobeyed an order from your commanding officer and you lied to him to hide your offence.  The evidence, specifically Exhibits 18 and 19, clearly demonstrates that you made a habit of not respecting your superiors and that you preferred to do as you pleased.  You have failed in your duty as a senior non-commissioned officer to be an example to your subordinates; and

 

You have a conduct sheet and it contains one charge of assault causing bodily harm that occurred in 1991.  This charge was tried by a civilian criminal court in Halifax in 1992 and you were sentenced to imprisonment for three months and one year of probation.  As such, I do not put much weight on this factor because of the passage of time since that offence and also because the present offence is totally dissimilar to that charge of assault. 

 

[11]      I will now deal with the evidence in mitigation of sentence:

 

I have reviewed the personnel evaluation reports, PERs, at Exhibit 25.  Your annual PERs from 2004-05 to 2008-09 are all excellent; your theatre PER is far from it.  You have numerous deployments in your career.  It would appear that you have served the Canadian Forces well until 2009;

 

I have also reviewed Exhibits 28 to 31 that pertain to your medical condition.  Medical authorities have determined that, based on your answers to their questions, you suffer from Post Traumatic Stress Disorder.  It would appear this diagnosis is the basis for the imposition of Medical Employment Limitations, MELs, see Exhibit 27.  I will let your chain of command with the assistance of competent medical authorities decide if PTSD is a factor in your behaviour.  I am not convinced, but it is not a determination I necessarily need to make at this time;

 

Your commanding officer has requested that your release, under article 5(f), proceed without delay because you are not suitable for further service, see Exhibit 22.  You are presently subject to a career administrative review because MELs were assigned to you, Exhibits 27 and 31.  It appears that you might be released from the Canadian Forces, whether under release article 5(f), Unsuitable for Further Service, or 3, Medical; and

 

An amount of $3,000 has been deducted from your pay.  Therefore, it appears at this time that restitution, albeit not voluntary, has been made for the amount you had received for your Third Location HLTA. 

 

[12]      Sergeant Lambert, stand up.  After reviewing the totality of the evidence, the case law and the representations made by the prosecutor and your defence counsel, I have come to the conclusion that the proposed sentence is the minimum necessary sentence in the present case and that it would not bring the administration of justice into disrepute and that the proposed sentence is in the public interest.  Therefore, I agree with the joint submission of the prosecutor and of your defence counsel.

 

FOR THESE REASONS, THE COURT:

 

[13]      SENTENCES you to a severe reprimand and a fine in the amount of $2,000. 

 

Counsel:

 

Major P. Rawal, Canadian Military Prosecution Service

Counsel for Her Majesty the Queen

 

Lieutenant-Commander B.G. Walden, Directorate of Defence Counsel Services

Counsel for Sergeant P.M. Lambert