R v Coombs, 2011 CM 3006

COURT MARTIAL Citation: R v Coombs, 2011 CM 3006 Date: 20110616 Docket: 201128 Standing Court Martial Canadian Forces Base Halifax Halifax, Nova Scotia, Canada Between: Her Majesty the Queen - and - Ordinary Seaman K. C. Coombs, Offender Before: Lieutenant-Colonel L.-V. d'Auteuil, M.J. REASONS FOR SENTENCE (Orally) [ 1 ] Ordinary Seaman Coombs, having accepted and recorded a plea of guilty in respect of the first and third to eighth charge on the charge sheet, the court now finds you guilty of these charges.

The second charge having been withdrawn by the prosecutor, then the court is left with no other charges to deal with. [ 2 ] It is now my duty as the military judge who is presiding at this Standing Court Martial to determine the sentence. [ 3 ] The military justice system constitutes the ultimate mean 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 trusting reliable manner successful missions. It 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 tribunal 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 the morale among the Canadian Forces [1] . 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. [ 5 ] Here, in this case, the prosecutor and the offender's defence counsel made a joint submission on sentence to be imposed by the court.

They recommended that this court sentence you to detention for a period of 35 days and a fine to the amount of $2,000 in order to meet the justice requirements. Although this court is not bound by this joint recommendation, it is generally accepted that the sentencing judge should depart from the joint submission only when there are cogent reasons for doing so. Cogent reasons mean where the sentence is unfit, unreasonable, would bring the administration of justice into disrepute, or be contrary to the public interest. [ 6 ] Imposing a sentence is the most difficult task for a judge.

As the Supreme Court of Canada recognized in Généreux [2] , in order "to maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently." [3] It emphasized that, in the particular context of military justice, "breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct." [4] However, the law does not allow a military court to impose a sentence that would be beyond what is required in the circumstances of a case.

In other words, any sentence imposed by a court must be adapted to the individual offender and constitute the minimum necessary intervention, since moderation is the bedrock principle of the modern theory of sentencing in Canada. [ 7 ] The fundamental purpose of sentencing in a court martial is to ensure respect for the law and maintenance of discipline by imposing sanctions that have one or more of the following objectives: a. to protect the public, which includes the Canadian Forces; b. to denounce unlawful conduct; c. to deter the offender and other persons from committing the same offences; d. to separate offenders from society, where necessary; and e. to rehabilitate and reform offenders. [ 8 ] When imposing sentences, a military court must also take into consideration the following principles: a. a sentence must be proportionate to the gravity of the offence; b. a sentence must be proportionate to the responsibility and previous character of the offender; c. a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; d. an offender should not be deprived of liberty, if applicable in the circumstances, if less restrictive sanctions may be appropriate in the circumstances.

In short, the court should impose a sentence of imprisonment or detention only as a last resort, as it was established by the Court Martial Appeal Court and the Supreme Court of Canada decisions; and, e. lastly, all sentences should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

[ 9 ] I came to the conclusion that in the circumstances of this case, sentencing should place the focus on the objectives of denunciation, specific and general deterrence. [ 10 ] Here, the court is dealing with a set of pure military offences. It goes from being absented without leave from your ship at four different times for a total of 102 days to failing three times to comply with a condition imposed by once, a Custody Review Officer and twice by two different military judges further to a custody review hearing, further to your arrest. All these offences go to the heart of the military discipline.

These types of offences are about the application of the principles of responsibility and integrity. For a sailor, being trustworthy and reliable at all time is more than essential for any mission in an armed force and especially on a ship, whatever is the function or the role you have to perform. [ 11 ] In arriving at what the court considers a fair and appropriate sentence, the court has considered the following mitigating and aggravating factors: a. The court considers as aggravating the objective seriousness of the offences. The offences you were charged with were laid in accordance with

section 90 of the National Defence Act for being absented without leave, which is punishable by imprisonment for a term for less than two years or to less punishment, and

section 101.1 of the National Defence Act , which is also punishable by imprisonment for a term for less than two years or to less punishment; and . b. Secondly the subjective seriousness of the offences in that for the court it covers four aspects: i. The first aggravating factor from a subjective perspective is the length of your absence. It discloses a clear recklessness attitude and a lack of care for the people and the organization you left behind.

You left your department on the ship dealt with the impact of your absence without regret, not paying attention to the additional workload that it will put on your colleagues and your unit. Basically, it discloses clearly a selfish attitude, because you decided that you will pass yourself before anything else without paying attention to the consequence of your decision; ii. The second aggravating factor is the repetition of the offences. You repeatedly and deliberately did the same thing over a period of six months.

You were warned about the consequences and despite serious undertaking conditions you agreed on, you were unable to act accordingly. You clearly showed a lot of disrespect toward your superiors, the chain of command and the military justice system; iii. Your admission pursuant to

section 194 of the National Defence Act for having committed on 6 June 2011 two service offences of the exact same nature as those for which the court have just found you guilty must be considered by this court as an aggravating factor. It demonstrates that you still do not get the message about the necessity to respect basic instructions; and iv. Finally, the presence of a conduct sheet for a similar offence that occurred some eight months ago must be considered also as an aggravating factor. [ 12 ] There is also mitigating factors that I consider: a. First, there is your guilty plea.

Through the facts presented to this court, the court must consider your guilty plea as a clear genuine sign of remorse and that you are very sincere in your pursuit of staying a valid asset to the Canadian Forces and it also disclose the fact that you are taking full responsibility for what you did; b. 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; c. The fact that you were put in pretrial custody for a total of 12 days.

It has some specific deterrence on you and may have

limited general deterrence on others; and d. The administrative measures taken by your chain of command. The fact that you are considered for being released from the Canadian Forces is not a sentence by itself.

However, the court has to consider this as a mitigating factor because the fact that it may happen could have some deterrent effect on you for what you did, but also passed a message to others that if they do something similar, it's something that could also happen to them. [ 13 ] Concerning the fact for this court to impose a sentence of incarceration to Ordinary Seaman Coombs, it has been well established by the Supreme Court of Canada decision in Gladue [5] 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 a 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.

This approach was confirmed by the Court Martial Appeal court in Baptista [6] where the court said that incarceration should be imposed as a last resort. [ 14 ] Here, in this case, considering the nature of the offences, which are pure military offences per se , the circumstances they were committed, the applicable sentencing principles, the aggravating and the mitigating factors mentioned above, I conclude that there is no other sanction or combination of sanctions other than incarceration that would appear as an appropriate punishment in this case.

On that issue, the court notes the agreement of both counsels. [ 15 ] As the criminal justice system in Canada has its own particularities, like the conditional sentence regime which is different of the probationary measures, but constitute nevertheless a punishment of incarceration with specific applications, allowing the offender to serve his sentence in the community in order to combine the objectives of punishing and correcting him at the same time, the military justice system does have, as a tool, the punishment of detention, which seek to rehabilitate service detainees, by re-instilling in them the habit of obedience in a structured, military setting, through a regime of training that emphasizes the institutional values and skills that distinguish the Canadian Forces member from other members of society.

Detention may have an important deterrent effect without stigmatizing a military convict to the same degree as military members sentenced to imprisonment, as it appears from the Notes added to articles 104.04 and 104.09 of the QR&O. [ 16 ] Despite it was indicated to the court that you may be released from the Canadian Forces further to the administrative review that is taking place, you will stay for some time and may be more in the Canadian Forces and it would not be bad if some basic military principles and values are reinstilled in you at this stage of your career, especially if you intend to stay.

Additionally, it will serve as a general deterrence effect for those who would be tempted to take such approach as a proper conduct in the Canadian Forces. [ 17 ] Concerning the length, having balanced all the aggravating and mitigating factors, the court considers that detention for a period of 35 days, less the 12 days in pretrial custody, would be sufficient in the circumstances.

It would meet the required sentencing principles and objectives, as well as maintaining discipline and confidence in the administration of military justice. [ 18 ] In consequence, the court will accept the joint submission made by counsel to sentence you to detention and a fine to the amount of $2,000, considering that it is not contrary to the public interest and will not bring the administration of justice into disrepute.

Concerning the length, the court considers that the numbers of days suggested by both counsel would meet the required sentencing principles and objectives such as parity in sentence, general deterrence, as well as maintaining discipline and confidence in the administration of military justice. FOR THESE REASONS, THE COURT: [ 19 ] FINDS you guilty of the first, fourth, sixth, and eighth charge, for an offence under

section 90 of the National Defence Act and guilty of the third, fifth, and seventh charge, for an offence under

section 101.1 of the National Defence Act . [ 20 ] SENTENCES you to detention for a period of 23 days and a fine to the amount of $2,000. The fine is to be paid in monthly instalments of $400 commencing today 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, the then outstanding unpaid amount is due and payable the day prior to your release.

Counsel: Lieutenant-Commander D. T. Reeves, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Major S. L. Collins, Directorate of Defence Counsel Services Counsel for Ordinary Seaman K.C. Coombs [2] (SCC), [1992] 1 S.C.R. 259