R v Dolcetti, 2011 CM 2014

COURT MARTIAL Citation: R v Dolcetti, 2011 CM 2014 Date: 20110606 Docket: 201066 Standing Court Martial Canadian Forces Base Gagetown Oromocto, New Brunswick, Canada Between: Her Majesty the Queen - and - Ex-Private J.A.E. Dolcetti, Offender Before: Commander P.J. Lamont, M.J.

REASONS FOR SENTENCE [ 1 ] Mr Dolcetti, having accepted and recorded your pleas of guilty to four charges in the charge sheet, this court now finds you guilty on charge No. 1, charge No. 5, charge No. 9 and charge No. 11. [ 2 ] Charge No. 1 involves an offence of using provoking speeches towards a person subject to the Code of Service Discipline and charge No. 5 involves a charge of fighting with a person so subject.

The two remaining charges are offences of conduct to the prejudice of good order and discipline, involving the violation of the instrument entitled, "Military Indoctrination Programme (MILIP)" by leaving the base, CFB Gagetown, at a time when you were, with the rest of your class, under orders not to leave, and also by consuming alcohol when you were under orders not to do so. [ 3 ] 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 have, as well, to consider the facts of the case as described in the statement of circumstances, Exhibit 7, and the other materials submitted during the course of this hearing, as well as the submissions of counsel both for the prosecution and for the defence. [ 4 ] The principals of sentencing guide the court in the exercise of its discretion in determining a fit 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 we all share 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. [ 5 ] 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, that habit of obedience which is absolutely indispensible 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 arriving at 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 the sentence should reflect a wise blending of these goals tailored to the circumstances of the case. [ 6 ] As I told you when you tendered your pleas of guilty,

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.

In arriving at the sentence in this case, I have considered the direct and indirect consequences for the offender of both the findings of guilt and the sentence I am about to pronounce. [ 7 ] The facts of these offences are not complicated and are set out in Exhibit 7, the statement of circumstances. While enrolled in a course at Canadian Forces Base Gagetown and subject to the instrument entitled, "Military Indoctrination Programme (MILIP)," the offender absented himself from the base and consumed alcohol contrary to the clear and well-understood terms of this instrument. [ 8 ] The two charges under

section 86 involve two different individuals.

When taxed by other members of the Canadian Forces in the bar where he was consuming alcohol contrary to orders, the offender misrepresented the truth to the individuals present, and when they appeared to be testing the accuracy of his statements, the accused made a statement to one Private Woolnough in terms of the offence charged, by which I have no doubt his comment, subjectively, had the effect of provoking a quarrel or disturbance with Private Woolnough, who was subject at the time to the Code of Service Discipline. [ 9 ] The second incident seems to have been some hours later, in the early morning of 3 October 2010, when, for reasons that have not been explained to me, Private Dolcetti apparently took offence when Private Bambush came into his room and they had a discussion, and as a result, Private Dolcetti pushed Private Bambush twice in the chest area.

Private Bambush fell over a bed in the room as a result of the push. [ 10 ] On the basis of the facts alleged and admitted, I have no hesitation in finding the offender guilty on all four of the charges to which he has pleaded guilty. [ 11 ] On these facts, counsel before me jointly recommend a sentence of 30 days' imprisonment, to be suspended, and a fine in the amount $2700.

As counsel have pointed out in the course of their submissions, while the sentence to be pronounced is, of course, a matter for the court, 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 in the case of Private Chadwick Taylor , noted by the prosecutor in the course of his address and by defence counsel, 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. [ 12 ] I have considered the aggravating and mitigating circumstances before me in this case. I note that all of the offences were committed over a relatively short period of time.

They apparently involve the wilful disobedience of written orders which the offender would have been well-aware of as a result of his briefing at the beginning of the course, as well as apparently an unprovoked and unmerited and unexplained violence or threats of violence to two different members of the Canadian Forces. [ 13 ] Amongst the mitigating elements, I note, of course, a guilty plea tendered by the offender to each of the four charges before me.

A guilty plea is often an indication of remorse; a tangible basis upon which the court can conclude that the offender realizes the error of his ways and is taking steps to reform himself. In this case, I accept that the guilty pleas offered by the offender are indeed a

genuine demonstration of remorse on his part, and one can reasonably conclude that he is well on his way to his own self-rehabilitation. I don't believe that process has been entirely completed yet. I note also that the offender was released from the Canadian Forces, I infer, principally as a result of the behaviours which have resulted in the charges before me, and, indeed, released on what is usually referred to as an unsatisfactory release item.

I as well note that the offender is apparently taking steps to improve his career prospects by pursuing a course in the United States, on the road to a qualification in fire fighting. [ 14 ] On all the circumstances of this case; that is, the circumstances relating to the offences and to the offender, I cannot say that the disposition jointly recommended 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: [ 15 ] SENTENCES you to imprisonment for a period of 30 days and to a fine in the amount of $2700. The fine is to be paid forthwith. Under

section 215 of the National Defence Act , as a suspending authority, I suspend the carrying into effect of the sentence of imprisonment. Counsel: Lieutenant-Commander D.T. Reeves, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Lieutenant-Colonel T. Sweet, Directorate of Defence Counsel Services Counsel for Ex-Private J.A.E. Dolcetti