R. v. Avila, 2011 CM 2003

COURT MARTIAL Citation: R. v. Avila, 2011 CM 2003 Date: 20110222 Docket: 201103 Standing Court Martial Canadian Forces Base Gagetown Oromocto, New Brunswick, Canada Between: Her Majesty the Queen - and - Second-Lieutenant R.S. Avila, Offender Before: Commander P.J. Lamont, M.J. REASONS FOR SENTENCE [ 1 ] Second-Lieutenant Avila, having accepted and recorded your plea of guilty to the second charge in the charge sheet, a charge of Conduct to the prejudice of good order and discipline, this court now finds you guilty of the second charge. [ 2 ] It now falls to me to determine and to pass a sentence upon you.

In so doing, I have considered the principles of sentencing that apply in the ordinary courts of criminal jurisdiction in Canada and at courts martial. I have as well considered 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. [ 3 ] The principals of sentencing guide the court in the exercise of its discretion in determining a fit and proper 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, as counsel have pointed out, out of a slavish adherence to precedent, but because it appeals to our common sense of justice, 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. [ 4 ] The goals and objectives of sentencing have been expressed in different ways in many previous cases. Generally, they relate

to the protection of society which includes, of course, the Canadian Forces, 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 so necessary 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 crafting 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 a fit sentence should reflect a wise blending of these goals tailored to the particular circumstances of the case. [ 5 ] As I told you when you tendered your plea 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 the finding of guilt and the sentence I am about to pronounce. [ 6 ] While on his Basic Officer Training Course, shortly after being commissioned in the rank of second-lieutenant, the offender falsely reported to the military police that someone had slashed his car tire in what he considered to be an attempt to kill him. The report was made on 29 April 2010. In fact, the previous day, the offender had dropped off his tire for repair because it had been damaged by a small screw.

As a result of the offender's misstatements to the MPs, some investigative steps were taken before the offender was re- interviewed by the police on 2 June 2010, and admitted misleading them with his report of damage to his tire. [ 7 ] On these facts, counsel before me jointly recommend a sentence of a reprimand and a fine in the amount $1500. As counsel have pointed out, the sentence to be pronounced is, of course, a matter for the court. But 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 , 2008 CMAC 1 , 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. [ 8 ] Considering, especially in this case, his prompt plea of guilty to this charge, his recent release from the Canadian Forces on what is considered an unfavourable release item after a relatively short period of Regular Force service and a few years of Reserve Force service, and his previous disciplinary infractions as disclosed by his conduct sheet, I cannot say that the disposition proposed jointly 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: [ 9 ] SENTENCES you to a reprimand and a fine in the amount of $1500. The fine is to be paid by 10 March 2011. Counsel: Major P. Rawal, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Lieutenant-Commander P. Desbiens and Captain S. Collins, Directorate of Defence Counsel Services Counsel for Second-Lieutenant R.S. Avila