R v Benedetti, 2013 CM 2009

COURT MARTIAL Citation: R v Benedetti , 2013 CM 2009 Date: 20130404 Docket: 201224 Standing Court Martial Canadian Forces Base Gagetown Oromocto , New Brunswick, Canada Between: Her Majesty the Queen - and - Corporal K.C. Benedetti, Offender Before: Commander P.J. Lamont, M.J.

REASONS FOR SENTENCE (Orally) [ 1 ] Corporal Benedetti, having accepted and recorded your pleas of guilty to two charges on the charge sheet, in the second charge, an offence of possession of Cannabis marihuana; and in the third charge, an offence of using Cannabis marihuana, and having considered the alleged and admitted facts in this case, this court now finds you guilty on charges No. 2 and No. 3. [ 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 disclosed in the evidence and materials submitted during the course of the sentencing hearing as well as the submissions of counsel, both for the prosecution and for the defence. [ 3 ] The principles of sentencing guide the court in the exercise of its discretion in determining a fit and proper sentence in each 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 the prosecutor has pointed out, from a slavish adherence to precedent, but because it appeals to our common sense of justice that like cases should be treated in similar ways.

Nevertheless, in imposing sentence, the court takes account of the many factors that distinguish the particular case that 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, 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 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 and just 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 and just sentence should reflect an appropriate blending of these goals, tailored to the circumstances of the case. [ 5 ] As I told you when you tendered your guilty pleas,

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. [ 6 ] In arriving at the sentence in this case, I have considered the direct and indirect consequences for the offender of the findings of guilt and the sentence I am about to pronounce. [ 7 ] The facts of these offences are set out in the statement of circumstances, Exhibit 8.

In brief, on the authority of a search warrant, the military police at CFB Gagetown searched the bed space area of the offender in the barracks on the base and found two buds of marihuana weighing a total of .010 grams in a book bag. In the course of an interview by the military police a week later, the offender admitted to using marihuana during the weekend of 18 to 20 November and admitted that the material in the book bag belonged to him. [ 8 ] The prosecution submits that a fit disposition in this case is a reprimand and a fine of $600.

At the time of his address the prosecutor understood that defence counsel would join him in this submission, but as it turns out there was a misunderstanding between counsel and there was in fact a difference in their respective positions on sentence.

When the misunderstanding came to light, the prosecutor was given leave to reopen the case to lead further evidence and the court heard the testimony of Lieutenant-Colonel Malejczuk, the offender's commanding officer, as the commanding officer of the Armour School at CFB Gagetown both currently and at the time of the offences. [ 9 ] The prosecution takes the position that as the recommended sentence is not a joint submission, the court is free to impose a more severe sentence based particularly upon the further evidence the court heard today.

Defence counsel, on behalf of Corporal Benedetti, concedes that the position of the prosecution on sentence is within the range but submits that in all circumstances a reprimand and a fine lower than $600 is fit. [ 10 ] I am mindful of the importance of maintaining in the Canadian Forces an environment that is entirely free of the use of intoxicating illegal drugs.

Military courts, including the Court Martial Appeal Court, have reiterated time and time again that the use of illegal drugs cannot be tolerated in the Canadian Forces, and as a result I consider that the violation of the drug laws will almost always be punished more severely than the same offences committed by civilians in a civilian context. [ 11 ] I accept the evidence of Lieutenant-Colonel Malejczuk as to the corrosive influence of drug use on the maintenance of military discipline, both generally and in this particular case.

Those opinions are amply supported by the case law on sentencing for drug offences in military courts. [ 12 ] I am also mindful of the circumstances of the offender. These offences represent his first involvement in the use of illegal drugs and I accept his evidence that he resorted to their use in order to alleviate the symptoms of a mental disorder with which he has since been diagnosed.

As a consequence of the life-long medication regime he must follow to deal with the disorder he will be released from the CF on medical grounds after serving in the Reserve Force since February of 2008 without any previous disciplinary or criminal convictions. I infer from the fact of his guilty pleas and his admissions to the investigating police that he is remorseful for what his counsel correctly characterized as his poor judgement. He is 22 years of age, single, and resides with his parents.

He has employment on a part-time basis. [ 13 ] In all the circumstances of this case, both those relating to the offences and those relating to the offender, I am satisfied that a disposition by way of a reprimand and a fine is appropriate. FOR THESE REASONS, THE COURT: [ 14 ] FINDS you guilty of the second charge, for an offence under

section 130 of the National Defence Act , contrary to section 4(1) of the Controlled Drugs and Substances Act , and the third charge, for an offence under

section 129 of the National Defence Act.

[ 15 ] SENTENCES you to a reprimand and a fine in the amount of $400. The fine is to be paid forthwith. Counsel: Major P. Rawal, Canadian Military Prosecutions Service Counsel for Her Majesty the Queen Major D. Berntsen, Directorate of Defence Counsel Services Counsel for Corporal K.C. Benedetti