Courts Martial

COURT MARTIAL

 

Citation:  R v Hannah, 2013 CM 2013

 

Date:  20130515

Docket:  201276

 

Standing Court Martial

 

Canadian Forces Base Gagetown

Oromocto, New Brunswick, Canada

 

Between: 

 

Her Majesty the Queen

 

- and -

 

Private M.B.A. Hannah, Offender

 

 

Before:  Commander P.J. Lamont, MJ

 

 

SENTENCE

 

(Orally)

 

[1]               Private Hannah you've been found guilty of two charges under the National Defence Act, a charge of trafficking the substance known as "Methyltestosterone" in the first charge and a charge of unlawfully selling a substance known as "Clenbuterol" in the third charge.

 

[2]               It now falls to me to determine and to pass a sentence upon you.  In so doing I consider the principles of sentencing that apply in the ordinary courts of criminal jurisdiction in Canada and at courts martial.  I consider as well the facts of the case as described in the admitted facts, Exhibit 3, and the other materials submitted during the course of the sentencing hearing, 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 similar 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, of which of course the Canadian Forces is a part, 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, the 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.  One or more of these objectives will inevitably predominate in the crafting of a fit 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 sentence should reflect an appropriate blending of these goals, tailored to the particular circumstances of the case.

 

[5]               Section 139 of the National Defence Act prescribes the possible punishments that may be imposed at court martial.  Those possible punishments are limited by the provision of the law which creates the offence and provides for a maximum punishment.  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.

 

[6]               In arriving at the sentence in this case, I have considered the direct and indirect consequences for the offender of the findings of guilt and the sentence I am about to pronounce.

 

[7]               The facts of the case were referred to briefly in my finding following the conclusion of evidence and argument.  In substance, the accused arranged to obtain at the request of a fellow course mate the supply of two substances; Methyltestosterone and Clenbuterol.  He succeeded in obtaining these substances in London, Ontario, apparently for a purchase price of $400, which was given to him by the course mate for this purpose.  He had these materials shipped by post to him here at Canadian Forces Base Gagetown and shortly after the materials arrived the offender delivered both the Methyltestosterone and the Clenbuterol to his course mate, another member of the Canadian Forces.

 

[8]               I am told that these materials are referred to as "anabolic steroids."  There is some, although limited, evidence before me that these materials may be popular among people who regularly use the gym to workout.  I am not presented with any evidence on which I can make specific findings of fact as to the harmful nature of these materials or otherwise.  I don't know what they're used for.  I don't know in what quantities they are used for.  I don't know whether they're unsafe in any quantity.  I don't know whether they're unsafe in larger quantities.  I don't know what the effect is on the human body of the consumption of these substances.  I don't know whether there is any risk of addiction or of whether increasing amounts of these substances are used over time.  I don't know what the psychotropic effects are, if any, of the use of these materials,  whether they produce hallucinations or rage or anger, and I don't know whether there is any therapeutic use to these materials.  Nonetheless I am left to arrive at a fit sentence for the offences for which you have been found guilty.

 

[9]               Counsel before me jointly recommend a sentence of a reprimand and a fine in the amount of $2,000.

 

[10]           The sentence to be pronounced, of course, is a matter for the court, but where, as in this case, both parties agree on a recommended disposition, that recommendation carries considerable weight with the court.  The courts of appeal across Canada, including the Court Martial Appeal Court have held that the joint submission of counsel as to sentence should be accepted by the sentencing court unless the recommended sentence would bring the administration of justice into disrepute, or is otherwise contrary to the public interest.

 

[11]           Counsel before me have referred to at least some of the aggravating and mitigating circumstances in this case.  What I find as the most serious aggravating circumstance is that the offences involved the trafficking or distribution of this material to another member of the Canadian Forces.

 

[12]           As I observed in the course of argument and as was pointed out by counsel, when illicit materials are purchased from unknown sources nobody knows what they're getting.  If they have enough experience with the material they may have a pretty good idea of what they should be getting, but unless materials such as this are prescribed by medical practitioners at the end of the day the buyer just has to beware.

 

[13]           I am mindful of several mitigating circumstances:

 

(a)                with respect to the personal circumstances of Private Hannah; these include your medical condition and the possible impact that the medical condition may have on your continued service in the Canadian Forces; and

 

(b)               you're a junior member having joined the Canadian Forces in 2011 and without any previous conduct sheet or disciplinary infractions of which I am aware.

 

[14]           By all accounts you have the potential to be a fine Canadian soldier and an asset to the Canadian Forces.  If that is to be the case it can only happen if you strictly abide by the drug policy of the Canadian Forces on which I have no reason to doubt you have been well informed well before today's date.

 

[15]           Considering all the circumstances, both of the offences and of the offender I cannot say that the disposition proposed jointly by counsel would either bring the administration of justice into disrepute or is otherwise contrary to the public interest and I therefore accept the joint submission.

 

FOR THESE REASONS, THE COURT:

 

[16]           FINDS you guilty of the first charge, for an offence under section 130 of the National Defence Act and guilty of the third charge, for an offence under section 130 of the National Defence Act.

 

[17]      SENTENCES you to a reprimand and a fine in the amount of $2,000.  The fine is to be paid in equal monthly instalments of $200 each commencing on 15 June 2013 and continuing for the following nine months.  In the event you are released from the Canadian Forces for any reason before the fine is discharged in its entirety the then unpaid outstanding balance is due and payable the day prior to your release.

 

 

Counsel:

 

Lieutenant-Commander D. Reeves, Canadian Military Prosecution Services

Counsel for Her Majesty the Queen

 

Major C.E. Thomas, Directorate of Defence Counsel Services

Counsel for Private Hannah