Courts Martial

COURT MARTIAL

Citation: R. v. Roche, 2010 CM 4001

Date: 20100111

Docket: 200926

Standing Court Martial

Canadian Forces Base Kingston

Kingston, Ontario, Canada

Between:

Her Majesty the Queen

- and -

Ex-Master Corporal K.M. Roche, Offender

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

OFFICIAL ENGLISH TRANSLATION

REASONS FOR SENTENCE

(Rendered orally)

[1]               Ex-Master Corporal Roche, having accepted and recorded your admission of guilt in respect of the first charge, I now find you guilty of this charge.

[2]               Counsel for the prosecution and your counsel have made a joint submission to me on sentencing and recommend that I impose a sentence of 60 days’ imprisonment and a fine in the amount of $5000 payable in 20 monthly instalments of $250. They recommend that the Court suspend the execution of the sentence of imprisonment. The final decision in sentence determination lies with the judge, who has the right to dismiss counsels’ joint submission.  However, I must accept the joint submission of counsel unless it is found to be inadequate or unreasonable, contrary to public order or would bring the administration of justice into disrepute.

[3]               To determine what constitutes the appropriate sentence in this case, I took into account the circumstances surrounding the commission of the offence as revealed in the statement of circumstances, which you have acknowledged to be true. I also considered the evidence that was filed, the case law and the submissions by counsel. I analyzed these various factors in light of the objectives and principles applicable in sentencing. As indicated in subsection (2) of section 112.48 of The Queen's Regulations and Orders for the Canadian Forces, I also took into consideration any indirect consequence of the finding or of the sentence and the need to impose a sentence commensurate with the seriousness of the offence and the previous character of the offender.

[4]               At the time of the offence, you held the position of Resource Management Support Clerk with the accommodations section at CFB Kingston. On May 23, 2008, after the other members of that section had left for the day, you took an envelope containing $885 without authorization and left for the weekend. On Monday, May 26, the supervisor of the accommodations section asked you if you knew where the money was. You lied, telling him that you had deposited it in the base cashbox. Later that day, you admitted that you had stolen that amount from the section vault and you returned $365 to your supervisor. On May 27, 2008, you returned $520 to him. You admitted to having committed this theft to your supervisor, to several other people and to the military police investigating the offence. You were released from the Canadian Forces on February 9, 2009, under release item 5F.

[5]               Having summarized the main facts of this case, I will now concentrate on sentencing. Therefore, in considering what sentence would be appropriate, I took into consideration the aggravating and mitigating factors that follow. I consider the following as aggravating factors:

The nature of the offence and the punishment provided for by Parliament. You are guilty of theft, having been entrusted with the stolen property by virtue of your employment. The maximum sentence of imprisonment is 14 years. Objectively, it is a particularly serious offence.

This is the second case of theft from your employer. You have once again violated a position of trust. Your conduct sheet indicates that you pleaded guilty to a charge of fraud on January 18, 2008. You defrauded the non-public funds accounting office of CFB Kingston of an amount of $8700. You were given a suspended sentence of 14 days’ imprisonment and a fine of $2000. It seems that you did not learn anything from your first experience with justice.

[6]               As for the attenuating factors, I note that:

You have pleaded guilty and testified at your hearing. You explained that you took the amount to make a car payment and you apologized for committing the theft. You are fully aware of the error you have committed. Your regret and remorse are genuine. The theft was not sophisticated, it involved a relatively small amount of public funds and it was clear that it would be discovered by your supervisor quickly. You repaid the stolen amount. It appears that your release from the Canadian Forces is directly linked to this offence. You are the single father of a 16‑year‑old girl and you also care for your father who cannot live alone. He contributes $850 to your monthly budget. You also share custody of two children. You have been employed since your release from the Canadian Forces.

[7]               Having closely examined the parties’ joint submission, I am of the opinion that, given the particular facts of this case, it properly incorporates the sentencing principles and that the choice of sentence is the lightest possible sentence to ensure the protection of the public and the maintenance of discipline in the circumstances.

[8]               Ex-Master Corporal Roche, please stand. I sentence you to 60 days’ imprisonment and a fine a $5000 payable in 20 monthly instalments of $250. The first payment shall be due on February 1, 2010. I agree with the joint submission and am suspending the execution of the sentence of imprisonment.

Counsel:

Lieutenant-Colonel J.A.M. Léveillée, Canadian Military Prosecution Service

Captain P. Vermette, Canadian Military Prosecution Service

Counsel for Her Majesty the Queen

Lieutenant(N) M. Létourneau, Directorate of Defence Counsel Services

Defence Counsel for ex-Master Corporal Roche