R. v. Darling, 2015 CM 1003

COURT MARTIAL Citation: R. v. Darling , 2015 CM 1003 Date: 20150302 Docket: 2014-22 Standing Court Martial Esquimalt Courtroom Victoria, British Columbia, Canada Between: Her Majesty the Queen - and - Petty Officer 2nd Class P. Darling, Offender Before: Colonel M. Dutil, C.M.J. REASONS FOR SENTENCE (Orally) [ 1 ] Petty Officer 2nd Class Darling has pleaded guilty to the offence of having wilfully made a false statement in a document signed by him that was required for official purposes under

section 125 of the National Defence Act .

The particulars of that charge reads as follows: In that he, on or about 6 June 2013, at or near Canadian Forces Base Esquimalt, British Columbia, in a statutory declaration form signed by him, stated that during his leave period from 11 August 2012 to 3 September 2012 he drove his personal truck from Victoria to Peterborough, Ontario and back, knowing such statement to be false. [ 2 ] The circumstances surrounding the commission of the offence states the following: At all material times, Petty Officer 2nd Class Darling was a Canadian Forces Regular Force musician posted to the Maritime Forces Pacific Band at Canadian Forces Base Esquimalt, British Columbia.

Petty Officer 2nd Class Darling was on approved leave from 10 August 2012 to 4 September 2012, inclusive. During this period, he had intended to drive from Victoria, British Columbia to Burleigh

Falls, Ontario, and return. He was entitled to Leave Travel Assistance for this trip. Immediately prior to his scheduled departure, Petty Officer 2nd Class Darling was in a motorcycle accident and injured his leg, leaving him unable to drive his truck. Rather than driving, Petty Officer 2nd Class Darling flew via commercial airline flights to Burleigh Falls and subsequently returned to Victoria. Prior to his departure on leave, Petty Officer 2nd Class Darling’s entitlements had been calculated on the basis of him driving to Burleigh Falls and return, as opposed to flying.

On 10 August 2012, Petty Officer 2nd Class Darling was given an advance of $1,200. Upon his return, on 5 September 2012, Petty Officer 2nd Class Darling signed and submitted his leave travel assistance claim, still based on having driven to Burleigh Falls and return. In doing so, he knew that he had flown and not driven. Petty Officer 2nd Class Darling provided his personal banking records to Base Orderly Room staff for the purpose of proving he had travelled to Burleigh Falls.

In the course of processing his claim, Base Orderly Room staff noted information in the banking records that suggested Petty Officer 2nd Class Darling did not drive to Burleigh Falls and back. In order to resolve the processing of his travel claim, an official purpose, Petty Officer 2nd Class Darling made and signed a statutory declaration on 6 June 2013 at Canadian Forces Base Esquimalt.

In it, he solemnly declared “during the leave period from 11 Aug 2012 to 03 sep 2012 I drove my personal truck from Victoria to Peterborough Ontario and back” and “I make this solemn declaration conscientiously believing it to be true, and knowing that it is of the same force and effect as if made under oath, and by virtue of the Canada Evidence Act .” In doing so, he knew that he had not driven his truck from Victoria to Peterborough and back. The $1,200 advance was recovered from Petty Officer 2nd Class Darling. [ 3 ] I must now determine what is an appropriate, fair and just sentence.

In addition, it has to be the minimal sentence applicable to the circumstances of this case. We all know that in the context of sentencing an offender under the Code of Service Discipline, the Court Martial Appeal Court has expressly stated that 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 objectives set out in the previously mentioned sections. [ 4 ] This morning, counsel for the prosecution and defence have jointly recommended that the court impose a sentence composed of two punishments: a reprimand and a fine in the amount of $600 payable in three instalments of $200 each.

I do accept that submission because it falls within the acceptable range of sentences for similar offences and also it would not bring the administration of justice into disrepute. [ 5 ] Counsel have put forward that the sentencing principles or objectives in this case are specific deterrence and parity.

I have no reason to differ from their opinions. [ 6 ] Counsel have suggested that the aggravating factors in this case are the long experience of the offender, more than twenty- four years of service in the Canadian Forces and at that rank and with that amount of experience, he should have known about the values on integrity, loyalty and honesty. [ 7 ] They also agree on what should mitigate the sentence here. And, similarly, the long experience and good service of Petty Officer 2nd Class Darling as well as the absence of any conduct sheet or criminal record.

In addition, of course, the offender’s plea of guilty this morning is true acceptance of responsibility and is a sign of remorse. I must mention that, of course, having to face the court martial with a complete audience this morning, as told by the prosecution, most people from his unit, is truly an embarrassment for Petty Officer 2nd Class Darling, and just the process itself that he had to go through this morning is part of the sentencing itself.

I could see from the bench how sad and embarrassed he must be this morning. [ 8 ] In conclusion, I have no valid reasons to reject this joint submission and I am bound by the law to accept it in these circumstances. FOR THESE REASONS, THE COURT: [ 9 ] FINDS you guilty of that third and only charge laid under

section 125 of the National Defence Act . AND [ 10 ] SENTENCES you to a reprimand and a fine in the amount $600 payable in three equal and consecutive monthly instalments of $200 each, beginning on 15 March 2015.

Counsel: Lieutenant-Commander S. Torani, Canadian Military Prosecution Service Counsel for Her Majesty the Queen Lieutenant-Commander B.G. Walden, Directorate Defence Counsel Services Counsel for Petty Officer 2nd Class P. Darling