Courts Martial

Citation: R. v.  Lieutenant-Commander Zebruk, 20006 CM 45

Docket:S200645

STANDING COURT MARTIAL

CANADA

QUEBEC

ASTICOU CENTRE, GATINEAU

Date: 3 October 2006

PRESIDING:COMMANDER P.J. LAMONT,  M.J.

HER MAJESTY THE QUEEN

v.

LIEUTENANT-COMMANDER F.L. ZEBRUK

(Offender)

SENTENCE

(Rendered orally)

[1]                    Lieutenant-Commander Zebruk, having accepted and recorded your plea of guilty to the second charge, the court now finds you guilty of the second charge.

[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 3, and the evidence heard 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.

[5]                    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 be a wise blending of these goals, tailored to the particular circumstances of the case.

[6]                    As I explained to you when you tendered your plea of guilty, section 139 of the National Defence Act prescribes the possible punishments that may be imposed at courts martial. Those possible punishments are limited by the provision of the law which creates the offence and provides for a maximum punishment, and may be further limited to the jurisdiction that may be exercised by this court.  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 of the finding of guilt and the sentence I am about to impose.

[7]                    Briefly, the facts of this case disclosed that in the course of a training port-security exercise, which he commanded, Lieutenant-Commander Zebruk directed the firing of a pyrotechnic device called a "flare" from the jetty of HMCS MALAHAT in Victoria Harbour.  The device landed on the roof of a private residence across the bay, but did not cause any damage, either by the impact or by fire.

[8]                    Both counsel have referred to the aggravating and mitigating circumstances.  The offender immediately took responsibility for his actions, cooperated with investigators, and has pleaded guilty.  The offence occurred almost three years ago, and, no doubt, the offender has had to deal with the matter hanging over his head while the investigators and other authorities have taken what I view as an inordinately long time to deal with the matter.  The offender has had a distinguished career in naval operations, with every prospect that it will continue now that he has finally been given the opportunity to put this behind him.  Against that, I must also consider the serious consequences that might have ensued from the offender's actions in firing the flare. 

[9]                    In this case, both counsel submit that the appropriate sentence is one of a reprimand 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 great weight with the court.

[10]                  The courts of appeal across Canada have‒‒including the Court Martial Appeal Court, 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.

[11]                  Considering the circumstances of the offence and of the offender, I do not consider that the recommended disposition would bring the administration of justice into disrepute or is otherwise contrary to the public interest, and, accordingly, I accept the joint submission.

[12]                  Stand up, please, Lieutenant-Commander Zebruk.   You are sentenced to a reprimand and a fine in the amount of $1,000, payable in monthly installments of $100 each commencing 15 October 2006, and continuing for the following nine months.  In the event you are released from the Canadian Forces for any reason before the fine is paid in full, the outstanding unpaid balance is to be paid the day prior to your release.

                                                                             COMMANDER P.J. LAMONT, M.J.

Counsel:

Major J.  Caron, Regional Military Prosecutions Eastern

Counsel for Her Majesty The Queen

Lieutenant-Colonel J.E.D. Couture, Directorate of Defence Counsel Services

Counsel for Lieutenant-Commander Zebruk