R v Crosman, 2013 CM 1004

COURT MARTIAL Citation: R v Crosman, 2013 CM 1004 Date: 20130513 Docket: 201311 Standing Court Martial Canadian Forces Base Edmonton Alberta, Canada Between: Her Majesty the Queen - and - Corporal J.J. Crosman, Offender Before: Colonel M. Dutil, C.M.J. REASONS FOR SENTENCE (Orally) [ 1 ] Corporal Crosman has pled guilty to two charges, namely, absented himself without leave, contrary to

section 90 of the National Defence Act ; and failed to comply with a condition imposed under Division 3, contrary to

section 101.1 of the Act . [ 2 ] The circumstances surrounding the commission of the offences indicate that Corporal Crosman is a member of 1 Service Battalion at Canadian Forces Base (CFB) Edmonton, Alberta. The circumstances also reveal that on 28 February 2012 the Regimental Duty Sergeant for 1 Service Battalion ordered Corporal Crosman to attend the unit centre at 0730 hours on 29 February 2012 and he failed to do so. At 0750 hours on 29 February 2012, the Regimental Duty Sergeant asked the unit duty driver to escort him to Corporal Crosman's residence on CFB Edmonton.

They knocked and yelled at Corporal Crosman’s door. As there was no answer, the military police were contacted and they gained access to that room at 0900 hours. The Military Police woke up Corporal Crosman, who then returned 1 Service Battalion lines. [ 3 ] On 6 May 2013, Corporal Crosman was allegedly late for work. He was arrested and detained. He was released by a Custody Review Officer with conditions later that same day. One of Corporal Crosman’s conditions was to abstain from the

consumption or possession of alcohol or any other intoxicating substance. On 8 May 2013, Corporal Crosman was caught by a member of his unit holding an intoxicating substance, namely, "brain freeze potpourri," from a pipe, while in uniform within his unit lines. Military police attended the scene and arrested Corporal Crosman at 1354 hours for breach of conditions. Corporal Crosman was transported to the 1 Military Police Regiment, Edmonton Police Detachment.

His release was denied by the Custody Review Officer. [ 4 ] Corporal Crosman admitted also during the trial that he did commit other service offences similar in character to those for which the court has entered and recorded his pleas of guilty and he requested that the court take them into consideration for sentencing purposes in accordance with

section 194 of the National Defence Act. [ 5 ] The circumstances surrounding the commission of those offences were provided to the court through an agreed statement of facts. In a nutshell, it indicates that he committed three additional offences, namely, two offences of absence without leave contrary to

section 90 of the Act and one offence of failing to comply with a condition imposed under Division 3 of the Act , contrary to

section 101.1 of the Act . The facts of these additional offences indicate that on 12 January 2013, Corporal Crosman had been instructed to appear for physical training at 0730 hours the next morning, 13 January 2013, at the CFB Edmonton gym. He did not attend, and he only attended at 1 Service Battalion at 0915 hours on 13 January 2013. Corporal Crosman was aware that he was to be at his physical training at 0730 hours. Corporal Crosman had no lawful excuse for his absence.

On 3 May 2013, upon arrival at work at 0730 hours, Corporal Crosman was under the influence of the intoxicating substance called "potpourri," again in breach of the 26 April 2013 condition on his release, imposed upon him by Major Parker, that he abstain from the consumption or possession of alcohol or any intoxicating substance. Finally, on 6 May 2013, Corporal Crosman failed to attend work at 1 Service Battalion at 0730 hours, as he was required to do. Corporal Crosman was aware of his 0730 hours timing. The military police attended at building 163 and located Corporal Crosman in his room at 0819 hours.

Corporal Crosman again had no lawful excuse for his absence. [ 6 ] At the sentencing hearing, the Regimental Sergeant Major testified at length to the seriousness of the personal issues that have plagued the life of the offender in the last two years, largely related to substance abuse. He testified on the efforts made by the unit to assist Corporal Crosman to deal with his addiction problems, including two formal in-house addiction programmes, one of which was completed in January 2013 and that resulted almost immediately in a relapse within three hours of his return on base, and also last week, on 8 May 2013.

His evidence indicates also that the unit has put significant and repeated efforts to assist Corporal Crosman to overcome his problems, but with little success. The Regimental Sergeant Major stated that the unit has now recommended that Corporal Crosman be released from the Canadian Forces. The evidence submitted at the sentencing hearing also indicates that Corporal Crosman was a valuable member and a good performer prior to 2011. [ 7 ] Counsel have indicated that Corporal Crossman faces challenges related to confirmed mental health issues and addictions.

He has recently completed a 21-day programme to address these items. Corporal Crosman's physicians were consulted by both the prosecution and the defence and there are no medical concerns with respect to serving a period of detention at the Canadian Forces Service Prison and Detention Barracks if the court would accept the recommendation of counsel for the proposed sentence. [ 8 ] Counsel for the prosecution and defence made a joint submission on sentence. They recommend that Corporal Crossman be sentenced to detention for a period of 25 days.

Although the court is not bound by this submission, appellate courts have constantly affirmed that a trial court can only reject such a joint submissions if it is contrary to the public interest and if the sentence would bring the administration of justice into disrepute.

The mere fact that a presiding judge would have imposed a sentence more severe within the same acceptable range of sentence is not a valid reason to reject the joint submission made by counsel. [ 9 ] Counsel rely on the recent decision in the case of R v O'Toole , 2012 CM 1018 , which was delivered on 15 November 2012, where the offender was sentenced to detention for a period of 14 days and dismissal. The court had suspended the execution of the punishment of detention.

The charges and the facts in that case were relatively similar to this court martial and Ordinary Seaman O'Toole suffered from serious addiction problems. [ 10 ] In sentencing an offender under the Code of Service Discipline, a court martial should guide itself with the appropriate sentencing purposes, principles and objectives, including those enunciated in sections 718.1 and 718.2 of the Criminal Code .

The fundamental purpose of sentencing at court martial is to contribute to the respect of the law and the maintenance of military discipline by imposing punishments that meet one or more of the following objectives: a. protection of the public, including the Canadian Forces; b. the denunciation of the unlawful conduct;

c. the deterrent effect of the punishment, not only on the offender, but also upon others who might be tempted to commit such offences; and d. finally, the reformation and rehabilitation of the offender. [ 11 ] The sentence must also take into consideration the following principles: it must be commensurate with the gravity of the offence, the previous character of the offender and his or her degree of responsibility; the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; a court must also respect the principle that an offender should not be deprived of liberty if less restrictive punishments may be appropriate in the circumstances; finally, the sentence should or will be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

However, the court must act with restraint in determining a sentence by imposing such punishment or punishments that constitute the minimum necessary intervention to maintain discipline. [ 12 ] The aggravating factors in this case are the following: a. the subjective seriousness of the offences as described in the Statement of Circumstances and the other admitted similar offences; b.

Corporal Crosman may have serious addiction problems; c. he has demonstrated a pattern of conduct that can be characterized as disrespectful and a blatant disregard for military authority and self-discipline, but also to the legal process; and d. the conduct sheet of Corporal Crosman, that shows recent previous convictions for similar offences and one offence for alcohol abuse. [ 13 ] There are, however, mitigating circumstances in this case: a. firstly, Corporal Crosman has accepted full responsibility for his conduct by pleading guilty before this court martial, but also in making a request under

section 194 of the Act for similar offences.

In doing so, Corporal Crosman has abandoned his rights to have another trial for these offences and this would save the important financial and personnel expenses required to conduct other judicial proceedings. b. secondly, although Corporal Crosman's recent professional conduct and performance has been disastrous, at the very least, he was recognized as a valuable and good performer prior to 2011. c. thirdly, Corporal Crosman has been in custody since the 8th of May, 2013, and he remained in custody throughout the proceedings of this court martial. [ 14 ] The court agrees with counsel that the proposed sentence is the minimal sentence in the circumstances and it is not so off the mark that its adoption by this court martial would be contrary to the public interest or bring the administration of military justice into disrepute.

This proposed sentence is adequate to meet the objectives sought, namely, denunciation, specific deterrence and rehabilitation. It is also sufficient to meet general deterrence, but, as I said, it does not mean that this court, this judge, would have imposed such a sentence; and I could say it would have been a much more severe sentence if it had not been for that joint submission, and treating it according to law, I will accept it. [ 15 ] There is no doubt that Corporal Crosman is at a crossroads, not so much with regard to his career in the Canadian Forces, but in his own life.

It is for him to decide what he wants to do. I hope he will decide to move on and sincerely commit to becoming a

valuable member of society while he puts every possible human effort to overcome his addictions. This will be a long process and he will certainly have the opportunity to embark on a sincere reflection while he serves his sentence of detention. FOR THESE REASONS, THE COURT: [ 16 ] FINDS the offender, Corporal Crosman, guilty of the first charge under

section 90 of the National Defence Act ; and guilty of the second charge under

section 101.1 of the National Defence Act . [ 17 ] TAKES into consideration for the purposes of the sentence, further to the request made by the offender under section 194(1) of the National Defence Act , the following service offences similar in character to those for which this court found him guilt, namely, two offences under

section 90 of the National Defence Act ; and one offence under

section 101.1 of the National Defence Act . [ 18 ] SENTENCES the offender, Corporal Crosman, to detention for a period of 25 days. Counsel: Lieutenant-Commander S. Torani, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Major A.M.W. Reed, Directorate of Defence Counsel Services Counsel for Corporal J.J. Crosman