Courts Martial

Citation:  R. v. Private T.V. Sterread, 2009 CM 3010

Docket:  200856

STANDING COURT MARTIAL

CANADA

ONTARIO

LAND FORCES CENTRAL AREA TRAINING CENTRE

DETACHMENT TORONTO

Date:  12 June 2009

PRESIDING:  LIEUTENANT-COLONEL L-V. D'AUTEUIL, M.J.

HER MAJESTY THE QUEEN

v.

PRIVATE T.V. STERREAD

(Offender)

SENTENCE

(Rendered Orally)

[1]        Private Sterread, having accepted and recorded a plea of guilty in respect of the

first and only charge on the charge sheet, the court finds you, now guilty of this charge.

[2]        The military justice system constitutes the ultimate means to enforce discipline

in the Canadian Forces, which is a fundamental element of the military activity.  The purpose of this system is to prevent misconduct or, in a more positive way, see the promotion of good conduct.  It is through discipline that an armed force ensures that its members will accomplish, in a trusty and reliable manner, successful missions.  As stated by a legal officer, Lieutenant-Colonel Jean-Bruno Cloutier, in his thesis on the use of the section 129 of the National Defence Act offences, the military justice system, and I quote:

"Has for purpose to control and influence the behaviours and

ensure maintenance of discipline with the ultimate objective to create

favourable conditions for the success of the military mission."

[3]        The military justice system also ensures that public order is maintained, and that

 those who are subject to the Code of Service Discipline are punished in the same way as any other person living in Canada.

[4]        It has been long recognized that the purpose of a separate system of military

justice or tribunals is to allow the Armed Forces to deal with matters that pertain to the respect of the Code of Service Discipline and the maintenance of efficiency and morale among the Canadian Forces.  That being said, the punishment imposed by any tribunal, military or civilian, should constitute the minimum necessary intervention that is adequate in the particular circumstances.  It also goes directly to the duty imposed to the court to, and I quote "Impose a sentence commensurate with the gravity of the offence and the previous character of the offender," as stated at QR&O article 112.48(2)(b).

[5]        Here, in this case, the prosecutor suggested that this court sentence you to

detention for a period of 18 days.  On the other hand, your defence counsel suggested that this court sentence you to non-custodial punishment.

[6]        The court has considered those suggestions in light of the relevant facts set out

in the Statement of Circumstances and the admissions, and their significance, and I have also considered them in light of the relevant sentencing principles, including those set out in sections 718, 718.1 and 718.2 of the Criminal Code, when those principles are not incompatible with the sentencing regime provided under the National Defence Act.

[7]        These principles are the following:

firstly, the protection of the public, and the public includes the interests of the Canadian Forces;

secondly, punishment of the offender;

thirdly, the deterrent effect of the punishment, not only on the offender, but also upon others who might be tempted to commit such offences;

fourthly, the reformation and rehabilitation of the offender;

fifthly, the proportionality to the gravity of the offence and the degree of respon­sibility of the offender; and

sixthly, the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

The court has also considered the representations made by counsel, including the case law provided to the court and the documentation introduced.

[8]        I must say, that considering the nature and the circumstances of the offence, I

consider that the protection of the public must be ensured by a sentence that would emphasize specific and general deterrence.  It is important to say that general deterrence means that the sentence imposed should deter not simply the offender from re-offend­ing, but also others in similar situations from engaging, for whatever reasons, in the same prohibited conduct.  Also, consideration must be given by this court to rehabilita­tion.

[9]        Here, the court is dealing with one offence punishable under section 130 of the

National Defence Act for knowingly uttering a threat to Corporal Lemieux to kill him, contrary to section 264.1 of the Criminal Code.  This is a very serious offence; however, the court will impose what it considers to be the necessary minimum punishment in the circumstances.

[10]      In arriving at what the court considers a fair and appropriate sentence, the court

has considered the following mitigating and aggravating factors.  The court considers as aggravating:

The objective seriousness of the offence.  The offence you were charged with was a Criminal Code Offence that was laid in accordance with section 130 of the National Defence Act for uttering threats contrary to section 264.1 of the Crimi­nal Code.  This offence is punishable by a term not exceeding five years of imprisonment or to less punishment.

The subjective seriousness of the offence.  Considering the previous exchange with Corporal Lemieux, in order to prevent what you considered a threat from another colleague who was superior in rank to you, you decided that it would be more appropriate to get rid of that fear, and also of your anger, by expressing clearly your intent to kill someone while handling a knife. 

Your behaviour disclosed, at the time, a total disrespect towards authority and your fellow soldiers.  As a brand new soldier you should have known better that ethic principles as respecting the dignity of all persons and obey and support lawful authority would have to pass before yourself and your own hurt feelings. 

The way you chose to respond exceeded, clearly, what you were facing, and instead of dialoguing you decided you had to commit a criminal offence to be taken seriously enough.  Your attitude demonstrated a total lack of judgement, at the time, and constituted a threat to the morale and cohesion of the group, which are fundamental elements for a proper functioning armed force.

The offence for which you pleaded guilty was committed while you were on duty, on a defence establishment, in front of several of your peers, and resulted, on a very short term, in an additional workload for the victim of your threat.

[11]      The court considers that the following circumstances mitigate the sentence:

Through the facts presented to this court, the court also considers that your plea of guilty is a very clear genuine sign of remorse and that you are very sincere in your pursuit of staying a valid asset to the Canadian Forces and the Canadian community.  It disclosed the fact that you're taking full responsibility for what you did.  Also, the court would not want to jeopardize your chances of success, because rehabilitation is always a key element when sentencing a person.

The fact that you did not have a conduct sheet or criminal record related to similar offences.

The fact that you recognized, right after the incident, that your conduct was inappropriate.  You fully cooperated with the police investigators and sought to apologize to the victim. 

The fact that you decided on your own to prevent any other potential incident by actively participating to an anger management program involving an initial assessment of your condition.  I understand that considering the family context you are coming from, you are essentially trying to understand your attitude in order to manage it more properly.  I encourage you to continue to do so and hope that it will help you to understand and react in a proper manner.

The fact that it is an isolated incident in that no such similar conduct occurred after the commission of the offence.  The reality is that your conduct did not impact substantially on the operation of your unit at the time, and did not result with an injury to someone.

Your age and your career potential as a member of the Canadian Forces.  Being 21 years old, you have many years ahead to contribute positively  to the Cana­dian Forces and the society in general.

You are seen by your unit, your supervisors, and your commanding officer as a valid asset and a model soldier, which expressed the idea that you have changed totally your attitude toward your responsibilities as a soldier in the Canadian Forces.  This change of mindset does disclose the fact that you might have learned some lessons and that you gave some thought to what you want to do with your life.  It is clear for the court, since the incident, you have seen things in a perspective that is more consistent with the one a soldier must have in order to perform the mission.

The fact that you respected, for almost the last two years, the direction on release from pretrial custody issued by a commanding officer.

The fact that you had to face this court martial.  It has had already some deterrent effect on you and also on others.  The court is satisfied that you will not appear before a court for a similar or any offence in the future.

The delay to deal with this matter.  The court does not want to blame anybody in

this case, but the closest the disciplinary matter is dealt with, the more relevant and efficient is the punishment on the morale and the cohesion of the unit members.  Especially when somebody disclosed a serious attitude problem, as you did.  On the other hand, this delay served you well in allowing you to demonstrate that there is hope for you to do better than you demonstrated at the time.

[12]      Concerning the fact for this court to impose a sentence of incarceration to Private Sterread, it has been well established by the Supreme Court of Canada decision in R. v. Gladue, [1999] 1 S.C.R. 688, at paragraphs 38 and 40, that incarceration should be used as a sanction of last resort.  The Supreme Court of Canada specified that incarceration under the form of imprisonment is adequate only when any other sanction or combination of sanctions is not appropriate for the offence and the offender.  This court is of the opinion that those principles are relevant in the military justice context, taking in account the main differences between the regimes for punishment imposed to a civilian tribunal sitting in criminal matters and the one set up in the National Defence Act for a service tribunal.

[13]      This approach was confirmed by the Court Martial Appeal Court in R. v.

Baptista, 2006 CMAC 1, at paragraph 5 and 6, where it was said that incarceration should be imposed as a last resort.

[14]      Here, in this case, considering the circumstances of the offence and the way it

was committed, the applicable sentencing principles, the aggravating and the mitigating factors aforementioned, I conclude that there is other sanction or combination of sanctions other than incarceration that would appear as an appropriate punishment in this case.  It appears to this court that a reprimand and a fine would constitute the necessary minimum punishment in the circumstances and would serve the interest of justice and military discipline.

[15]      Private Sterread please stand up.  Therefore, the court sentences you to a reprimand and a fine to the amount of $500.  The fine is to be paid in monthly install­ments of $100 each commencing on 1 July 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, then the outstanding unpaid amount is due and payable the day prior to your release.  Please be seated.

[16]      After the court provided to counsel an opportunity to comment, it considered

whether it was desirable, in the interest of the safety of the offender, the victim, or any other person, to make an order prohibiting the offender from possessing any firearm.  Considering that the offender respected, for the last 22 months, such order included in the direction on release from custody, from pretrial custody, and the circumstances of the offence disclosed by the statement of circumstances, more specifically the absence of any physical violence and the unique set of facts that led the offender to have the knife in his possession at the time he made the threat, it is the court's decision that no such order is desirable.

[17]      The proceedings of this Standing Court Martial in respect of Private Sterread are

terminated.

                                                                             Lieutenant-Colonel L-V. d'Auteuil, M.J.

COUNSEL:

Major S.A. MacLeod, Regional Military Prosecutions Central

Counsel for Her Majesty the Queen

Major M.T. Poland, Directorate of Defence Counsel Services

Counsel for Private Sterread