Courts Martial

Citation:  R. v. ex-Master Corporal B.J.M. Floyd, 2009 CM 1005

Docket:  200859

STANDING COURT MARTIAL

CANADA

QUÉBEC

CANADIAN FORCES BASE VALCARTIER

Date:  18 March 2009

PRESIDING:  COLONEL M. DUTIL, C.M.J.

HER MAJESTY THE QUEEN

v.

EX-MASTER CORPORAL FLOYD

(Offender)

SENTENCE

(Rendered Orally)

[1]        Please stand up.  Ex-Master Corporal Floyd, having accepted and recorded your plea of guilty to the first charge for an offence under s. 90 of the National Defence Act, "absence without leave," the court finds you guilty of the charge.  You may be seated.  It is now upon me to determine and pass sentence.

[2]        The circumstances surrounding the commission of the offence reveal that on the morning of 25 June 2008 you failed to report to the morning unit parade and remained absent for a period of 12 days until you turned yourself in to the military police for your own safety and that, after having been on a 10-day drug binge using cocaine and that, with a former friend who had brought up the drugs at your residence.

[3]        This is a case where counsel for the prosecution and counsel for the defence have come up with a joint submission on sentence.  They recommend that this court sentence you to reduction in rank to the rank of private.

[4]        Although this court is not bound by the joint recommendation, it is generally accepted that a joint submission should be departed from only where to accept it would be contrary to public interest and would bring the administration of justice into disre­pute.  This is not the case here, where the proposed sentence constitutes the minimum necessary intervention that is adequate in the particular circumstances.

[5]        In accepting the joint submission on sentence, the court has considered the totality of the circumstances surrounding the commission of the offence presented during the sentencing procedure, the documentary evidence filed with the court and ex-Master Corporal Floyd's testimony as well as any direct and indirect consequences that the finding and sentence will have on the offender.  The court considered also represen­tations made by counsel and the case law provided.  The court has examined these elements in light of the applicable principles of sentencing, including those set out in ss. 718, 718.1 and 718.2 of the Criminal Code when they are not incompatible with the sentencing regime provided under the National Defence Act.

[6]        The purpose of a separate system of military tribunals is to allow the armed forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military.  However, the punishment imposed by any tribunal, military or civil, should constitute the minimum necessary intervention that is adequate in the particular circumstances.

[7]        In order to contribute to military discipline, the sentencing principles and objectives are often listed as:  the protection of the public, including the Canadian Forces; the punishment and the denunciation of the unlawful conduct; the deterrence of the offender and other persons from committing similar offences; the separation of offenders from society, including from members of the Canadian Forces, where necessary and only as a last resort; rehabilitation of offenders; the proportionality to the gravity of the offence and the degree of responsibility of the offender; and, the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.  Finally, the court shall consider any relevant aggravating or mitigating circumstances related to the offence or the offender.

[8]        The court agrees with counsel that the sentence in this case should emphasize the need to protect the public through denunciation of the conduct and general deter­rence.  However, the sentence should also assist to rehabilitate the offender who has now entered into civilian life.

[9]        In accepting this joint submission, the court has considered the following factors to aggravate the sentence:

First, the objective gravity of this offence.  A person found guilty of an offence under s. 90 of the National Defence Act is guilty of an offence and liable to imprisonment for less than two years.  This is a serious offence.

Second, the fact that you held a position of responsibility and of leadership by reason of your appointment as master corporal at the time.

And thirdly, your conduct sheet which includes three previous convictions for similar offences.

[10]      The court considers the following factors to mitigate the sentence:

First, the fact that you have acknowledged full responsibility for your actions by pleading guilty before this court at the very first opportunity and dispensing with the need for a long and costly court martial.

Second, the fact that you have since been released from the Canadian Forces as a consequence for your drug addiction, which explains in part your disciplinary problems or at least puts them into perspective.

Third, the fact that you turned yourself in, to the military police, to end the offence and remained in custody for a period of three days.

Fourth, the fact that you now have made a good clean-up in your personal life and departed company with  previous entourage involved in substance abuse.

And fifth, your family situation.  The evidence indicates that you have lived in a stable relationship for over six months and enjoy the full support of your family in the transition to civilian life.

[11]      Applying the sentencing principles and objectives in light of the aggravating and mitigating circumstances, I see no reason to depart from that joint submission as it falls within the applicable range of sentences for similar offences and it does not bring the administration of justice into disrepute or is contrary to public interest.  Please stand up.  Therefore, this court sentences you to reduction in rank to the rank of private.  You may be seated.

                                                                 COLONEL M. DUTIL, C.M.J.

COUNSEL:

Major J. Caron, Regional Military Prosecution, Valcartier

Counsel for Her Majesty The Queen

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

Counsel for ex-Master Corporal B.J.M. Floyd