Courts Martial

Citation: R. v. Ex-Private J.M. Augustynek,2004 CM 21

Docket: S200421

STANDING COURT MARTIAL

CANADA

ALBERTA

BUILDING 626, LAND FORCE WESTERN AREA TRAINING CENTRE WAINWRIGHT, DENWOOD

Date: 24 March 2004

PRESIDING: COLONEL K.S. CARTER, M.J.

HER MAJESTY THE QUEEN

v.

EX-PRIVATE J.M. AUGUSTYNEK

(Accused)

SENTENCE

(Rendered Orally)

—1—                  Ex-Private Augustynek, the court, having accepted and recorded your plea of guilty to the second charge on the first charge sheet and the first charge on the second charge sheet, the court now finds you guilty of those two charges.  The court will allow you to sit with your counsel while it explains the reasons and it's considerations during this sentencing phase, and when the court imposes its sentence it will have you stand and will impose its sentence upon you.

—2—                  Let me begin by thanking counsel for their submissions which have been of great assistance to the court.  Ex-Private Augustynek, the court is now at the stage of sentencing you for these offences.  In determining an appropriate sentence the court has considered the evidence it has received on the circumstances surrounding the commission of these offences, on your background, and on your current circumstances, as well as the submissions of both counsel and the principles of sentencing.

—3—                  The court must and does follow certain principles  in determining what is an appropriate sentence.  These principles are applied, not only in courts martial, but also in criminal trials in Canada.  They have been expressed in many ways, but in essence, they include: protection of the public; punishment of the offender; deterrence, both general and specific; and reformation and rehabilitation.

—4—                  The protection of the public encompasses both the general public interest, which includes, in the context of courts martial, the protection of the interests of the Canadian Forces and also the protection of individual members of the public including Canadian Forces members.  In the context of a court martial, the primary interest of the Canadian Forces is the maintenance or restoration of discipline, and discipline is a fundamental requirement of any military force and a prerequisite for operational efficiency.  Discipline has been described as a willing and prompt obedience to lawful orders, and it has to be kept in mind that lawful orders may have a detrimental or even fatal consequence for CF members.  Nevertheless, their prompt and willing compliance is of fundamental importance, not only for the success of a mission, but for the safety and for the well-being of other Canadian Forces members.

—5—                  Discipline, while a group quality or characteristic, is, in its final analysis, founded on personal choice.

It's a personal quality, self-discipline, and this is something the Canadian Forces develops, encourages, and tries to maintain in its members.  This is done through training, through example, and through practice, so that compliance with lawful commands in the stressful and critical situations that Canadian Forces members are put into, such as disasters, deployments, and in combat, can be relied upon.  In essence, members of the Canadian Forces do dangerous tasks and operate dangerous equipment and must obey the rules.

—6—                  The heart of discipline is not unthinking action, but rather a conscious, immediate, and automatic response, developed through practice, but ultimately resting on choice. If discipline in individual members fails, if it falls below an acceptable standard, then there may be recourse to counselling and other administrative measures to try and restore it.  When necessary, when discipline appears to be breached, then disciplinary action may be taken in the form of summary trials or courts martial, and this is done to restore discipline.  Fortunately, in the Regular and Reserve Force of approximately 80,000 members, there are 1500 summary trials a year, and less than 100 courts martial.

—7—                  Now, I've spoken about the principle of punishment and I think that is self-explanatory.  It is a consequence that society imposes for a breach of its laws.  It is denunciation by society for misconduct.  In some cases, though that is not the case here, a minimum punishment is imposed for the commission of certain offences.

—8—                  General deterrence is a principle that the sentence imposed should deter, not only the offender from re-offending, but also others in similar situations from engaging, for whatever reasons, in the same prohibited conduct.  And the principle that applies to deter the offender personally from re-offending is called specific deterrence.  That means that the sentence should deter you from re-offending, not just from committing the same offence or similar offences again, but from committing any offences again.

—9—                  In that regard, reform and rehabilitation, though they are the last principles that I'm listing, are of importance.  When reformation and rehabilitation appear to be viable options then they are things that must be weighed heavily by any court in its consideration of a suitable punishment.  And this is because, ultimately, society is only protected through an individual reforming and rehabilitating him- or herself.  Like discipline, reformation and rehabilitation are an individual choice.  Society, the Canadian Forces, can facilitate this choice by both positive and negative incentives, but only the individual can make the necessary choices and take the necessary action.

—10—                In that regard, the clear indication that the consumption of alcohol was a trigger and a continuing contributor to these offences, and the lack of any indication that you, as the offender, have or are addressing or even recognizing that consumption of alcohol is a problem, is one which this court must take into account, and this court must assess in deciding whether it is realistic to anticipate effective reform and rehabilitation on your part in the near future.

—11—                In addition to the principles I have mentioned, there are other important considerations that the court must and has taken into account.  And one that it has considered very carefully in this case, given the fact that another former member of the Canadian Forces was convicted of offences relating to one of the incidents that you have been found guilty of; that is, Private Adams, one of these other factors is proportionality.

—12—                Proportionality, on the one hand, argues that sentences for similar offences, by similar offenders, committed in similar circumstances, should not be significantly different.  On the other hand, the principle of proportionality requires, as does QR&O 112.48, that any sentence take into account, not only the nature of the offence, but also the background; that is, the previous character of the convicted person.  QR&O 112.48 also requires that this court take into account any direct or indirect consequences of any finding, and what is most applicable here, of any sentence that it imposes on the offender.

—13—                The court, after considering the nature of the offences; that is, assault and harassment constituting conduct to the prejudice of good order and discipline, has decided that the predominant principle to be applied, as both counsel have submitted, is deterrence, both specific and general.  The court has also considered as applicable, but subordinate to this main principle, reform and rehabilitation within the limits that it has outlined already.

—14—                What is the evidence before the court with regard to the gravity of these offences and the circumstances surrounding their commission?  Based on the Statement of Circumstances, it is as follows:

—15—                The first offence, chronologically, occurred on the 2nd and 3rd of November, 2002, and was an incident which began at the Junior Ranks Club in Shilo, and was initiated by you.  This involved the verbal harassment of a Private Cornect, a fellow student on a basic artillery run course, by you.  You began your harassment by verbally abusing Private Cornect with inappropriate suggestions, insults, and vulgarities.  Apparently, at some later point in time, in another location, while intoxicated, you jumped on a car that Private Cornect was in.

—16—                The court has the advantage of being able to observe you.  You are a tall, over 6 feet, muscularly built young man in apparently good physical condition, which gives context to the impact of you jumping on a car while people are in it.  It also gives context to the impact of you verbally harassing somebody.  There was further verbal harassment, again initiated by you, of Private Cornect that evening.  A third incident took place that evening, again initiated by you, when you confronted and verbally abused Private Cornect again.  The following morning you ap­proached the victim of your harassment and told her not to do anything about the night before.  The court concludes that this is a recognition by you that your conduct the night before was wrong and warranted some action.  The hallmarks of this incident are: its continuing nature; the fact that you pursued the victim, including to, essentially, her place of residence; that is, the barracks; and also the fact of intimidation of the victim into not taking action.  In essence, as set out in the statement of particulars, you abused and induced fear into a course-mate.

—17—                The second incident occurred just over two months later.  During that incident you, and two course-mates were reporting to a Duty Private, an individual who, clearly, by reason of appointment, had some seniority or authority over the three of you.  It is clear that there was some duty to report since that is implied by the term "reporting."  You were again intoxicated.  At this time you encouraged and facilitated an assault on Private Lavallie.  This incident follows a similar pattern to the one set out in the first offence.  After the initial incident, you and your course-mates went and found the victim again, and again, in something, a place that can be construed as part of the place of residence of the victim; that is, the bathroom in quarters.  As the victim tried to escape for a second time, you followed him out of the bathroom and slapped him on the back of the head.  The series of assaults suffered by Private Lavallie that night resulted in some bruising to his face, though it is not clear to what extent any of that resulted from the assault that you committed.  Exhibit 10 shows that this matter was brought relatively promptly to the attention of authorities who took action.

—18—                As this court has to consider, not only the nature of the offences, but their context, and the previous character and current circumstances of you, the offender, the court will briefly put these two incidents into the chronology of your military career and current situation as it is set out in the evidence before this court.

—19—                As set out in Exhibit 10, you were apparently a member of the Canadian Forces Reserve Force as of July 2001, and you joined the Regular Force in January 2002 in Victoria, British Columbia at the age of 19.  You began in the Navy as a Naval Technician in the area of communications, and it is not clear, based on the evidence before the court, what happened to that Navy career, but by the 7th of October, 2002, you were in Shilo on a soldier's qualification course. This course ran from the 7th of October to the 12th of December, 2002, and the first offence of which you have been convicted occurred during this time.  The course assessment indicated you were an average performer.  It highlighted you had a good attitude and your academic marks were above average.  In addition, it said that you were good in a team setting and you performed well in the field, even when you were sick or under stress.  In summary, it could be considered a reasonably good course report.  It also recommended that you proceed to the next stage of your training for your military career. 

—20—                It is not entirely clear from the information before the court whether you were awaiting training or on a new course when the next incident occurred on the 18th of January, 2003.  Exhibit 10 indicates that the 18th of January incident caused significant difficulty in quarters, and the court has been struck specifically by the statement, "life in barracks became very stressful for those on the opposing side to Private Augustynek­."  That leaves the impression of further intimidation.

—21—                Exhibit 13 sets out that in February 2003 you had begun your MOC DP-1 Artillery training.  You were apparently removed from that course, it appears, as a result of that incident on the 18th of January, 2003, and its aftermath, including the subsequent investigation.  It is not entirely clear when, exactly, charges were laid in this matter, however, it is apparent that some time in February 2003 you were moved to Wainwright.  And at the beginning of your time in Wainwright restrictive conditions were imposed upon you, not as part of pre-trial custody, but, it seems, as some kind of restrictive or protective custody for somebody.

—22—                And as set out in the documents before the court, you were required to be up at 0600, you were escorted to breakfast, and subsequently to the Persons Awaiting Training Platoon.  You stayed at the building where the Persons Awaiting Training Platoon operated out of until lunchtime.  You were then escorted to lunch, and subsequently escorted back to the PAT Platoon.  Again, you stayed at the PAT Platoon until 1530 when you were escorted to roll-call, and then back to quarters.  From 1600 to 2300 you reported in uniform every hour to duty personnel.  You were permitted 15 minutes a day, under escort, at Canex.  During the weekend, the indication was that you had to report in every hour in uniform, and the court concludes, that since there­'s no indication, that this was during waking hours, and that, clearly, there was some periods of time when you were allowed to sleep.  This continued for a period of two weeks, and then was apparently discontinued.  And there is no explanation before the court as to why. 

—23—                Between March and November 2003 you were not used, apparently, on any particular duties, but appeared to have spent most of your time awaiting a decision on your future, and then being released.  As the court has indicated, it is not the entirely clear the progress of the charges during this time frame, but it is clear from the documentation before the court that they were not preferred before you were released.  Between February and November 2003, then, it would seem that you were in, essentially, a reasonably well-paid limbo awaiting an outcome of this matter.  It is not clear, as I've indicated, when charges were originally laid, and therefore it is not clear how long these charges have been hanging over your head.

—24—                As of November 2003 you became a civilian, and, according to the exhibit, that was pursuant to a 5(d) release.  And QR&Os, which this court has taken judicial notice of, indicate that a 5(d) release is a release that is for the reason the individual is not advantageously employable.  And it indicates, under the special instructions, this:

Applies to the release of an officer or non-commissioned member:

because of an inherent lack of ability or aptitude to meet military classification or trade standards; or

who is unable to adapt to military life; or

who, either wholly or chiefly because of the conditions of military life or other factors beyond his control, develops personal weaknesses or has domestic or other personal problems that seriously impair his usefulness or impose an excessive administrative burden on the Canadian Forces.

The court does not know which of those categories that you fall into.  Simply, it has before it that that is the general category under which you were released.

—25—                Apparently, some time after November 2003, you began working in the civilian community, and sometime before the 18th of March you were hired by Mr Robin Rook to work as a labourer in his shop.  You are still employed there.  Your employer indicates at Exhibit 12 that he wished to keep you in his employ.  And the indication before the court is you are currently living with your family.  So that, then, is an outline of the general circumstances that are before the court as to your previous character; that is, your military career and your current circumstances. 

—26—                Let me now move to the submissions of the prosecution.  The prosecution has submitted that the purpose of the military justice system is the maintenance of discipline.  And he has stressed, that although verbal harassment and minor assault may not, in and  of themselves, be the most serious of offences, that the context in which these occurred and the impact on the unit, its morale, and discipline in quarters, puts these offences into a category of offences where a more serious punishment is warranted.

—27—                The prosecution has listed the aggravating factors as your intoxication, the fact that you harassed a fellow soldier, the fact that the assault you committed on an individual, Private Lavallie, could also be construed as an assault on the authority that he represented as the Duty Private, and also the impact of this offence on the unit and life in quarters generally.

—28—                In terms of mitigating factors, the prosecution has indicated, firstly, the fact that you have pled guilty, and that indicates an acceptance of responsibility.  The prosecution has also mentioned the fact that, by pleading guilty, this means that it is not necessary to have a court martial.  The court would make it clear that that is not a major consideration.  A plea of guilty is mitigating because it is an indication of acceptance of responsibility.  The Canadian Forces is, quite frankly, the organization that has chosen to proceed with these matters, and, if it is necessary to hold a court martial then it will hold a court martial, and a full court martial.  So it is not the saving of money that is of any great importance here, it is the acceptance of responsibility.

—29—                Another mitigating factor is your release from the Canadian Forces.  And the prosecution has mentioned the waste of your potential; that is, you showed some potential in your course report and that is clearly not going to proceed now.  And also as a mitigating factor that you have secured employment and appear to be making a positive contribution, at least in the employment field, in the civilian world.  The prosecution has mentioned the Adams case, which is the case that relates to another member who was involved in the assault on Private Lavallie.  And the prosecution has indicated that it considers your involvement more serious.  It has indicated that the sentence for ex-Private Adams was a reprimand and a $2800 fine; however, it suggests that, given the fact that you have a second charge, and also, from its perspective, your role in the Lavallie assault, that an appropriate sentence in this matter would be imprisonment for 14 to 30 days.  The prosecution put a number of cases before the court, and I will deal with those cases later.

—30—                Your defence counsel also made a number of submissions to this court.  And he began by summarizing the personal information that had been disclosed to the court emphasizing your youth, your lost potential, your current employment, and the fact that you are living with your family now. 

—31—                Your counsel, in terms of dealing with the mitigating factors, stressed the lengthy delay in this matter coming to trial, and contrasted that against the expectation, and indeed the desirability, of a speedy trial in a disciplinary situation.  He stressed your plea of guilty as being an indication of responsibility, and also said that a mitigating factor was the period of restriction on your liberty that you suffered in Wainwright, your release, and also your youth, and from the information before the court you were 20 years old at the time you committed these offences.

—32—                Your counsel agreed with the prosecution that general and specific deterrence were the most important principles that should be considered here.  He went on, however, to emphasize the importance of proportionality and the impact of the Adams case in this matter.  And he, in particular, submitted that a review of the material provided by the prosecutor at tab 3 of his materials, if read carefully, would indicate that ex-Private Adams was more culpable than you in the assault on Private Lavallie.

—33—                The court has noticed there are differences between the Statement of Circumstance in this particular case and the Statement of Circumstance that was submitted in the Adams case.  And those differences include differences in the injuries that were specified to have been caused by Private Lavallie.  The court would make it clear that it takes into account only the injuries and only the facts set out in the Statement of Circumstances in this matter in determining what is an appropriate sentence in this matter.  However, the court would say, that having reviewed that Statement of Circumstances as the information is set out in that Statement of Circumstances, ex-Private Adams certainly comes across as more of an instigator in the matter, and more of a participant in the original assault against Private Lavallie.

—34—                Your defence counsel has submitted that a large fine would be a most appropriate punishment in this case, and that fine would be larger than the one imposed on ex-Private Adams because you have been found guilty of two incidents not one incident.

—35—                Let me briefly review the cases that have been submitted by counsel.  The court would say that, having looked at the Keenan case, which is from 1996, it does not find it particularly useful because of the other offences which clearly played a significant role in determining the sentence.  With regard to the Green case from 1997, this is a case that's somewhat closer to your circumstances than the Keenan case, but there are two offences, and the second offence of a threat is objectively more serious than that of harassment.  For the Card case from 2000, again, there are other offences and the court has not found that particularly useful.

—36—                The court has found useful the case of Vanson and Winkler from 2001.  There, there was an assault causing bodily harm; that is, the harm occasioned was more serious than in this case, and the two offenders were sentenced to imprisonment and also to a $6,000 fine, but the imprisonment was suspended.  The MacMullin case is a case of an individual who struck a superior and a more serious injury resulted.  However, there were circumstances there which, as indicated,  had the victim more involved in the assault than would be the case in these matters before this court, and the sentence there was a severe reprimand and an $1800 fine. 

—37—                The Adams case, I have already mentioned and so I will not dwell on that.  The Brown case from 2000 was an assault causing bodily harm, and the offender was sentenced to 21 days' detention and a $4,000 fine, and the detention was suspended.  The Kickham case was, again, an assault causing bodily harm.  It was an unusual set of circumstances, and, as indicated, it was one where Officer Cadet Kickham, after having been released in his fourth year, lost his degree amongst other things, and the sentence there was an $1800 fine.  The Bernier case, which Mr Davies submitted, deals with two non-violent sexual assaults and a harassment, and there the sentence was a severe reprimand and a $5,000 fine.

—38—                The court has looked very carefully at all these circumstances.  And as mitigating factors in this matter, the first thing it considers is with regard to the assault charge, the limited injury that was suffered by the victim.  It takes into account your youth, though it would point out that at the time you committed these offences you had approximately 18 months of services in the Canadian Forces already. 

—39—                The court has taken into account that you have been released, and you have been released as unsuitable for further service, and that this is effectively the end of your military career.  The court has taken into account your guilty plea, and, as it has indicated, it does so as an indication of some acceptance of responsibility.  It would however, say that it has had the opportunity to observe you here in the courtroom during these proceedings, and to some degree your acceptance of responsibility in pleading guilty has been undermined by your own conduct.  The court has observed you smiling and grinning during the reading of Statements of Circumstances when references are made to your victims, and that, to some degree, undermines the submissions of your counsel as to your acceptance of responsibility.

—40—                  The court has taken into account, as a mitigating factor, the delay in proceeding in this matter, and also the restraints imposed upon you in February in Wainwright.  It is not clear exactly how those relate to the charges in front of the court, or how they relate to anything else, but from the information presented to the court, and the manner in which it was presented, the court can only conclude there was some relevance between those restrictions and the incident that occurred on the 18th of January, 2003.  So the court has taken that into account in mitigation.  And the court has taken into account the fact you have no conduct sheet.  So these offences are, in essence, your first offences as a Canadian Forces member, and the court would conclude, given the fact you've been released, your last offences as a Canadian Forces member.

—41—                The court has also taken into account some aggravating factors.  And the first aggravating factor is that there are two incidents here that are little more than two months apart.  The court has also taken into account that these offences demonstrate a certain pattern; that is, they are not simply a situation where there is one contact, but in both cases, after an initial contact, there is a seeking out by you of the person who is being harassed in some way and a continuation and an escalation of conduct.  The court has taken into account the intoxication, and that is a factor in both of these cases.  And the court has taken into account, as an aggravating factor, the impact on the individuals; that is, the individuals were intimidated and they were bullied by you.

—42—                The court would indicate that it has not taken into account the steps that the unit apparently had to take to restore discipline.  Matters such as the duty staff having to live in the quarters seem to be reasonable steps and are not ones that the court would consider an aggravating factor in this matter.  Strict adherence to regulations and orders, the court has not considered the requirement that people strictly adhere to regulations and orders as an aggravating factor, that would seem desirable.  And the requirement that there be no overlooking of minor infractions, again, would seem to be an excellent preventative measure and a positive contribution to discipline, and is not something the court has taken into account as an aggravating factor in these matters.

—43—                Very simply, the actions before the court show, that when you are drunk, you are a nasty drunk, and you are a bully.  It shows that you are not someone who is suitable for service with the Canadian Forces.  The people who you harassed and assaulted are your colleagues.  They are people who you have to rely upon and who have to be able to rely upon you, and you have to be able to function as a team.  And it's clear that your actions resulted in them not being able to rely upon you, and the court would have great doubts that you would be able to rely upon them after what you have done to them.

—44—                The court accepts that if these matters were regarded in isolation they might be considered less serious, but the court has taken a great deal of time to explain what the context is and why the court considers these serious.  As has been indicated by the cases and by counsel, the range of appropriate sentence here goes from a very large fine to a period of incarceration.  And the court would say that one of the things it has taken into account in determining an appropriate sentence is the guidance set out in the Criminal Code in section 718 throu­gh 718.2.  The court has also taken into consideration the decision of the Supreme Court of Canada in the case of R. v. Gladue [1999] 1 S.C.R., 688, where the Supreme Court makes it clear that incarceration is a punishment of last resort.  And the Court Martial Appeal Court has also echoed that message in a number of recent cases.

—45—                The court, having taken into account all of that, would explain, however, that in this case, given the impact of these offences, it does consider that incarceration is an appropriate sentence.  Your counsel has referred to detention.  Detention would be available to this court, but the court does not consider it a useful or applicable sentence because its prime purpose it to rehabilitate somebody into the military, and it is clear that that is not something that is desirable, and it's not something that's possible for you.  So the court would not impose detention.

—46—                As I have indicated, it is the pattern of conduct here, within the incidents, and in particular the intimidation afterwards, that is the greatest concern.  And the court has considered very carefully the impact on cohesion and morale, as well as the safety of individuals.  Equally, the court has considered how it might best specifically deter you by making you understand the consequences of your intimidation and your threats to these people.  At the same time, the court must take into account the fact that ex-Private Adams has already been dealt with in one of these matters and that the sentence imposed on him did not include incarceration.  Nevertheless, the court believes the minimum sentence that is appropriate in this case is a short period of incarceration and a fine.

—47—                Please stand, ex-Private Augustynek.  Ex-Private Augustynek, the court sentences you to five days' imprisonment and a fine in the amount of $2500.  The court has considered very carefully whether or not it would suspend the period of imprisonment in this case, and, in that regard, it has considered the submissions of your counsel with particular concern with regard to the delay in this matter and the fact of your release.  For those reasons, the court is prepared to suspend the imposition of the five days' imprisonment.  The fine of $2500 remains.  Please be seated.

—48—                Let me explain to you, you have a criminal conviction now, that's a result of this matter, as well as a sentence of imprisonment which this court has suspended only because there has been a long delay in this matter and because you are no longer a member of the Canadian Forces.  If you apply to the Canadian Forces, if you apply to the police, firefighters, if you apply to a job where you need to be bonded, you are going to have to say that you have been convicted of an offence for which you don't have a pardon.  And you will have to wait five years from the time when your sentence is complete, and that is from the time that you have paid off the fine, before you can apply for that pardon.

—49—                So the effects of this will last at least five years from this date upon you, and that would be presuming you could pay off the entire fine today.  There is a much more serious matter here, which is, it is clear from this, when you drink you are not a pleasant person.  You are not in control of yourself.  You intimidate people.  This was your first offence.  If you do not get a grip on your drinking, if you do not address that issue, it will not be your last offence.

—50—                Now, there are a number of consequences that fall out of this and I'm going to address with the counsel now, and they fall into three categories.  The first one is the payment of the fine, and what I'm going to do right now is I'm going to adjourn briefly and give you and your counsel a chance to talk about this, because what I would like to know is how much can you pay today; that is, what amount of money can you pay now towards this fine to show evidence that you intend to take responsibility for this matter?  And I know you may not have money with you, but most people have cards and there are bank machines in Wainwright because the court has driven by them.  And so the court would, when it comes back, would like to know how much you will pay now, and how quickly you can pay this fine off.

COLONEL K.S. CARTER, M.J.

Counsels:

Major B. MacGregor, Regional Military Prosecutions Western

Counsel for Her Majesty the Queen

Mr. Gwilym J. Davies, Legal Counsel, 11215 Jasper Avenue NW, Edmonton, Alberta, T5K 0L5

Counsel for ex-Private J.M. Augustynek