R. v. D’Amico, 2020 CM 2004

COURT MARTIAL Citation: R. v. D’Amico , 2020 CM 2004 Date: 20200312 Docket : 201912 Standing Court Martial 4th Canadian Division Training Centre Meaford Meaford, Ontario, Canada Between: Her Majesty the Queen - and - Corporal D.P. D’Amico, Offender Before: Commander S.M. Sukstorf, M.J. REASONS FOR SENTENCE (Orally) Introduction [ 1 ] On 9 March 2020, Corporal D’Amico was found guilty at a General Court Martial (GCM) for one charge contrary to

section 129 of the National Defence Act ( NDA ) for neglect to the prejudice of good order and discipline. As the military judge presiding at this GCM, it is now my duty to determine the sentence on the charge which reads as follows:

“First Charge

Section 129 NDA NEGLECT TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE Particular s: In that he, on or about 12 September 2018, at or near Canadian Forces Base Meaford, Ontario, fell asleep while acting as a sentry for a live fire range.” Evidence [ 2 ] In this case, the prosecutor provided the documents required under Queen’s Regulations and Orders for the Canadian Forces (QR&

O) article 112.51 that were supplied by the chain of command. [ 3 ] The following additional evidence was adduced at the sentencing hearing in the court martial: (

a) on consent, several personnel development review (PDR) reports with respect to the offender; (

b) testimonies of the following prosecution witnesses, in order of appearance: i. Sergeant S.D. Calhoun, and ii. Chief Warrant Officer M.W. Kennedy; (

c) summary of the offender’s financial circumstances; (

d) military Police Professional Code of Conduct; (

e) memorandum dated 12 June 2018, regarding the offender’s request for voluntary release; and (

f) testimonies of the following defence witnesses, in order of appearance: i. Captain R.T. Andrushko, and ii. Sergeant S.A. Jolliffe. [ 4 ] Furthermore, the Court benefitted from counsel’s submissions to support their respective positions on sentence where they highlighted the facts and considerations relevant to Corporal D’Amico. [ 5 ] Counsel’s submissions and the evidence before the Court have enabled me to be sufficiently informed of Corporal D’Amico’s personal circumstances so I may adapt and impose a sentence specifically for him, taking into account the rehabilitation and progress he has made to date.

Circumstances of the offender [ 6 ] Corporal D’Amico is thirty-seven years old. He enrolled in the Canadian Armed Forces (CAF) on 3 September 2014, having served his country for almost six years. Following basic and occupational training as a military police (MP), he was posted to 2 MP Regiment in Meaford, Ontario, where he has remained as an MP patrolman. It has been his only posting as an MP. [ 7 ] The evidence suggests that the charge before the Court arose during a difficult and tenuous time in Corporal D’Amico’s private life.

Without going into great detail, he was working to resolve acrimonious issues related to access to his daughter, a minor. Although he was eventually afforded access, the dates and times upon which access could be exercised were rigid and needed to be in the Niagara region, an approximate three to four-hour drive from Meaford in each direction.

The evidence also suggested that Corporal D’Amico was unable to change his access times and dates and his failure to attend these scheduled sessions would have had dire consequences for his access longer term. [ 8 ] Sergeant Calhoun was Corporal D’Amico’s detachment commander in Meaford during the time period set out in the charge. She testified during the proceedings that she was aware of Corporal D’Amico’s personal situation and she did her best to accommodate him.

However, she explained that during the week of 10 September 2018, the unit was conducting its annual qualifications training and she provided advance notice that leave would not be authorized. She did testify that due to Corporal D’Amico’s particular situation, she authorized him to depart in the afternoon of 11 September 2018, but he was expected to be back the next morning, 12 September 2018, to participate in the annual weapons qualification serials. The evidence suggests that members of the unit met for the first serial around 0800 hours on the morning of 12 September 2018.

Corporal D’Amico was placed on the first serial and then was assigned as sentry for the next serial which began at roughly 1100 hours.

He also was on duty as a patrolman during that time. [ 9 ] The offence before the Court occurred on 12 September 2018, after Corporal D’Amico returned from an eight-hour commute driving himself from Meaford to the Niagara region and back for a scheduled visitation with his daughter. [ 10 ] On 12 June 2018, exactly three months before the date of the offence before the Court, and one day after having completed his Basic Military Qualification Land (BMQ Land) Course in Petawawa, Corporal D’Amico submitted a request for voluntary release entered as Exhibit 33 in these proceedings.

In it, he wrote the following reasons at paragraph 2: “a. I have received an offer of employment with Bruce Power, conditional on completion of a medical exam, psychological test, and security level 2 clearance. The training course to gain employment is to start on 30 Jul 18.

This position will allow me to continue to work in a geographical area that allows easier access to my child, while I continue to work through personal legal issues and reduce stress; b. due to my current role in the CAF, and personal matters, I have been under a lot of stress that has been having adverse effects on my physical, mental and emotional wellbeing. I feel that if I don’t take a step back at this time, it will permanently affect my ability to work within the CAF.

Taking a step back from my current responsibilities, reducing my commitment and focusing on family matters and my wellbeing, will permit me to continue to work within the CAF”. [ 11 ] Although the Court is not privy to what happened to his request for voluntary release, the fact that he appeared before this Court as a regular force member with a pending posting to Ottawa this summer is evidence that he did not release. [ 12 ] The Court was provided with PDR feedback and testimony with respect to his performance and shortcomings, but it was noteworthy that almost the entirety of the negative comments were tied in some respect to Corporal D’Amico’s ongoing struggle to resolve the acrimonious access arrangements for his daughter. [ 13 ] Sergeant Calhoun testified that during her tenure as detachment commander, Corporal D’Amico met the minimum standard as a patrolman, but she felt that he was capable of more.

She recognized that he was distracted with the ongoing personal challenges related to the access to his daughter and she felt that these issues held him back. [ 14 ] Sergeant Jolliffe, who became the new detachment commander during the posting season 2019, testified that in his observations, Corporal D’Amico has been performing at the level expected for his rank and experience. He also confirmed for the Court that Corporal D’Amico has resolved the personal challenges that were holding him back. Sergeant Jolliffe views Corporal D’Amico as a

hard-working individual who has accomplished a great deal in the time he has been in the branch. Sergeant Jolliffe admitted that Corporal D’Amico still has room to professionally develop, given that he spent the entirety of his MP career in Meaford. However, Sergeant Jolliffe stated that Corporal D’Amico’s upcoming posting to the Close Protection Unit (CPU) in Ottawa will provide him with an excellent growth opportunity.

He acknowledged that Corporal D’Amico was successful on the Close Protection Course which he rated to be one of the toughest courses in the CAF which Corporal D’Amico completed shortly after finishing his Qualification Level 3 course. [ 15 ] Chief Warrant Officer Kennedy, the 2 MP Regiment Regimental Sergeant Major (RSM), told the Court that he was familiar with the challenges that Corporal D’Amico faced that arose from his personal circumstances. He recognized that up until recently Corporal D’Amico had been an average patrolman, maintaining the status quo.

He testified that due to Corporal D’Amico’s success on his Close Protection Course, the CPU in Ottawa requested that Corporal D’Amico become part of their team and to be posted to their unit. He also told the court that he recently presented Corporal D’Amico with the Platinum Award for physical fitness.

The Platinum Award for fitness reflects that Corporal D’Amico would have achieved a result better than or equal to 99% of the CAF population in his respective age and sex group. [ 16 ] Captain Andrushko testified that he has had personal dealings with Corporal D’Amico both in Meaford where they both regularly serve, as well as in Petawawa when Captain Andrushko was the course officer during Corporal D’Amico’s BMQ Land in Petawawa in May and early June 2018. Captain Andrushko told the Court that Corporal D’Amico was very successful on the BMQ Land course and would have finished in the top third.

He testified that in all of his dealings with Corporal D’Amico, both in Meaford and in Petawawa, he found him to be extremely professional. Sentencing Position of the parties Prosecution [ 17 ] The prosecution submits that the Court should impose a sentence of a severe reprimand and a fine in the amount of $1,500.

The prosecution argued that, although this is a simple case, it is a case that stresses the importance of self-discipline and highlights how the actions of one individual can affect the actions of the whole. [ 18 ] The prosecution argues that this is the minimum sentence to be imposed to deter others from not taking their sentry duties seriously. Defence [ 19 ] The defence submits that a sentence of an absolute discharge is most appropriate based on the facts of this case.

He argued that the facts of this case are somewhat unique and are easily distinguished from the case law upon which the prosecution seeks to rely. Purposes, objectives and principles of sentencing to be emphasized in this case [ 20 ] The fundamental purposes of sentencing in a court martial are to promote the operational effectiveness of the CAF by contributing to the maintenance of discipline, efficiency and morale and to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

In order to accomplish this, it is imperative that members be provided the best opportunities for success in reforming their conduct and shortcomings. [ 21 ] The fundamental purposes of sentencing are achieved by imposing sanctions that have one or more of the objectives set out within the NDA . The prosecution has emphasized that they feel that objectives of sentencing that the Court must consider are denunciation, deterrence as well as rehabilitation. Defence counsel did not oppose these objectives nor did he take a different position.

[ 22 ] Despite relatively straightforward facts, there is a variance in the recommendations on sentence by counsel. [ 23 ] It is a fundamental principle that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender. In order for a sentence to be proportionate, individualization and parity of sentences must be reconciled.

Parity [ 24 ] The NDA has established a structured and military-centric approach to sentencing with well-defined objectives and principles and requires that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 25 ] The prosecution provided the Court with the following precedents: (

a) R. v LeBlanc, 2010 CM 4006 . The offender was found guilty after trial for one charge for negligently performing a military duty for not being alert and vigilant at all times when guarding seven to ten CF-18s on the tarmac at Canadian Forces Base (CFB) Bagotville. While performing this duty, he was armed with a C-7 rifle equipped with a thirty-round magazine. In imposing a fine of $500, the court acknowledged a delay of seven months by the chain of command in charging the member. (

b) R. v. Corporal C.L.W. McDougall , 2009 CM 2017 . The offender entered a plea of guilty on one charge. He had been tasked as a sentry at an open portion of a fence surrounding a high security zone at CFB Cold Lake starting at 0600 hours on the date alleged in the charge. He had been specifically trained for the duty. An hour later, he was discovered by the Alert Force Commander to be by himself in a truck near the fence, apparently asleep. The Court imposed a fine in the amount of $300. (

c) R. v. Corporal M.J.M.G. Carreau-Lapointe , 2008 CM 3023 . The offender pleaded guilty to three charges related to offences of negligence contrary to

section 124 of the NDA . The offender was equipped with a weapon, loaded with live ammunition to ensure security and control access to an alert zone located at the base permitting only authorized access. He committed the same offence on three occasions, reflecting the repetitive nature of the offence which the Court found particularly aggravating. The Court imposed a severe reprimand and a fine in the amount of $1,000. (

d) R. v. Leading Seaman J.R. Lueke , 2008 CM 3007 . The Court accepted and recorded a plea of guilty with respect to six different charges. Only one of the charges related to the offender negligently performing a duty as the access point sentry on Her Majesty’s Canadian Ship (HMCS) Whitehorse which was docked alongside for a period of four hours. The offender’s conduct potentially risked the security of the ship and placed an additional burden on his shipmates by requiring them to check on him repeatedly.

One of the other offences related to being absent without leave, and was exacerbated by the existence of a conduct sheet for similar offences. Court imposed a severe reprimand and a fine in the amount of $2,000. [ 26 ] The cases of LeBlanc and McDougall are the most similar to the case at bar, involving similar breaches of active or live security areas that required safeguarding. In those cases, the Court notes that the courts imposed minor fines in the amounts of $300 and $500.

The cases of Lueke and Carreau-Lapointe can easily be distinguished as they involved multiple offences and more significant aggravating factors than the case at bar. Nonetheless, in those cases, the courts imposed severe reprimands and fines in the amount of $1,000 to $2,000. Based on the nature of the offences and the sentences proposed by LeBlanc and McDougall , it is highly likely that similar cases to the one at bar are more generally disposed of at

summary trial where similar minor punishments or lower-level fines are imposed. [ 27 ] In relation to the principle of parity, I conclude that the range of sentences imposed in the past on similar offenders for similar offences varies from $300 to $500. At the highest end, where offenders were tried for a similar offence within a multitude of other offences with more aggravating factors, the highest punishment was that of a severe reprimand and fine in the amount of $2,000. Accounting for relevant aggravating or mitigating circumstances [ 28 ] In the military justice system, under

section 203.3 of the NDA , in imposing a sentence the court shall take into consideration a

number of principles relevant to the case. Firstly, under paragraph 203.3(

a) of the NDA , the Court shall increase or reduce its sentence to account for any relevant aggravating or mitigating factors relevant to the offence or the offender. Aggravating circumstances include, but are not restricted to, evidence establishing any of the statutory factors set out in subparagraph 203.3(a). Aggravating factors [ 29 ] After hearing the submissions of counsel, the Court highlights the following aggravating factors for the record: (

a) Live Firing Range. The offender fell asleep at the entrance to a live firing range when he was expected to be vigilant and act as an important security link to the Range Safety Officer (RSO); (

b) Status as an MP. At the time, the offender was in full uniform, in his police car and may have been unresponsive to any duty call; and (

c) Fundamental breach of personal discipline. Although it was recognized that the member did take some steps to mitigate his situation by walking around his car, he should have used his radio and sought a replacement. Mitigating factors [ 30 ] After hearing the submissions of counsel, the Court highlights the following mitigating factors for the record: (

a) Acceptable post-conduct behaviour; (

b) The fact that the personal considerations that underlay the incident have stabilized; and (

c) Evidence of rehabilitation and future prospects. Any indirect consequences of the finding of guilty or the sentence should be taken into consideration. [ 31 ] Defence counsel made its recommendation for sentence based particularly on the indirect consequences of the finding of guilty and its accompanying record of conviction. Absolute discharge [ 32 ] One of the new powers set out in the NDA is the power of a military judge to direct that a member, who either pleaded guilty or is found guilty of an offence to be discharged absolutely.

Defence argued that the absolute discharge is appropriate for the facts of this case. The direction of an absolute discharge was not a sentencing option available to military judges when the cases of LeBlanc and McDougall were decided. [ 33 ]

Section 203.8 of the NDA provides: Absolute discharge

203.8(1) If an accused person pleads guilty to or is found guilty of an offence — other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for 14 years or for life — the service tribunal before which the accused appears may, if it considers it to be in the accused person’s best interests and not contrary to the public interest, instead of convicting the accused person, direct that they be discharged absolutely. Effect of discharge

(2) If a service tribunal directs that an offender be discharged absolutely of an offence, the offender is deemed not to have been convicted of the offence, except that (

a) they may appeal from the determination of guilt as if it were a conviction in respect of the offence; (

b) in the case of a direction to discharge made by a court martial, the Minister may appeal from the decision not to convict the offender of the offence as if that decision were a finding of not guilty in respect of the offence; and (

c) the offender may plead autrefois convict in respect of any subsequent charge relating to the offence. References to

section 730 of Criminal Code

(3) A reference in any Act of Parliament to a discharge under

section 730 of the Criminal Code is deemed to include an absolute discharge under subsection (1). [My emphasis] [ 34 ] As the direction of an absolute discharge is relatively new in the military justice system, there is little jurisprudence available to provide direction to judges in considering the appropriateness of such a direction in the circumstances of a particular case. However, absolute discharges have existed for a very long time in the civilian criminal system and this Court can rely upon judicial precedents in the application of

section 730 of the Criminal Code to inform its approach. [ 35 ]

Section 730 of the Criminal Code reads in part as follows: Conditional and absolute discharge 730

(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2). . . . Effect of discharge

(3) Where a court directs under subsection (1) that an offender be discharged of an offence, the offender shall be deemed not to have been convicted of the offence except that

. . . Where person bound by probation order convicted of offence

(4) Where an offender who is bound by the conditions of a probation order made at a time when the offender was directed to bedischarged under this

section is convicted of an offence, including an offence under

section 733.1, the court that made the probationorder may, in addition to or in lieu of exercising its authority under subsection 732.2(5), at any time when it may take action under thatsubsection, revoke the discharge, convict the offender of the offence to which the discharge relates and impose any sentence that couldhave been imposed if the offender had been convicted at the time of discharge, and no appeal lies from a conviction under this subsectionwhere an appeal was taken from the order directing that the offender be discharged. [36] There is a judicial test set out by the British Columbia Court of Appeal in R. v.

Fallofield (1973), (BC CA),13 C.C.C. (2d) 450 to guide judges in considering whether the imposition of an absolute discharge is appropriate. It sets out a number offactors that should be considered. [37] The British Columbia Court of Appeal in Fallofield came to a number of conclusions about this

section of the Criminal Codewhich have subsequently been adopted by the Saskatchewan Court of Appeal in R. v. Anderson, [1982] S.J. No. 577 and R. v. Sorenson, (SK CA), [1994] S.J. No. 24. In R. v. Cadieux, 2019 CM 2019, this court adopted this same Fallofield test whenconsidering whether a conviction should be discharged absolutely. [38] In Fallofield, the Court set out the guidelines for determining when a discharge is appropriate as follows at paragraph 21:

(1) The

section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by lawor the offence is punishable by imprisonment for 14 years or for life or by death.

(2) The

section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivialviolation.

(3) Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the bestinterests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused,that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the nextconsideration into operation.

(4) The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest.

(5) Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction,that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that theentry of a conviction against him may have significant adverse repercussions.

(6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, doesnot preclude the judicious use of the discharge provisions.

(7) The powers given by s. 662.1[now section 730(1)] should not be exercised as an alternative to probation or suspended sentence.

(8) Section 662.1 [now section 730(1)] should not be applied routinely to any particular offence. This may result in an apparentlack of uniformity in the application of the discharge provisions. This lack will be more apparent than real and will stem from thedifferences in the circumstances of cases.

[Emphasis in original] Is a discharge available based on the offence charged? [ 39 ] The maximum punishment for an offence contrary to

section 129 of the NDA is dismissal with disgrace from Her Majesty’s service or to less punishment. Section 139(1) of the NDA situates dismissal with disgrace just below imprisonment for two years or more, making the offence itself eligible to be considered for an absolute discharge. Consequently, the Court concluded that based on the charge before the court, the offender’s case is eligible for consideration.

Is it in the best interest of the offender? [ 40 ] The next step in considering whether this is an appropriate case to be considered, the court must ensure itself that the offender is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions. [ 41 ] Corporal D’Amico does not have a conduct sheet.

The evidence supports the fact that the offender’s personal circumstances have changed and the prospects for his future with a forecasted posting to Ottawa to the CPU are evidence that the Court does not need to ensure that the conviction stands in order to deter Corporal D’Amico from engaging in future offences or to rehabilitate him. [ 42 ] The Court must then consider whether the entry of a conviction against the offender might have significant adverse repercussions.

During the sentencing hearing, the Court specifically asked both Chief Warrant Officer Kennedy, as well as Corporal D’Amico’s current supervisor, Sergeant Jolliffe, how the finding of guilt should affect Corporal D’Amico’s pending posting to the CPU in Ottawa. Both were unanimous in stating that based on the nature of the offence, his posting should not be affected.

Although Sergeant Jolliffe was not in a position to elaborate, Chief Warrant Officer Kennedy, who occupies a more senior position as the RSM in 2 MP Regiment and who helped facilitate Corporal D’Amico’s pending posting, testified that he had personally discussed Corporal D’Amico’s situation with his new unit and he saw no reason that the finding of guilt would affect his pending posting. [ 43 ] However, the prosecution entered into evidence the Military Police Professional Code of Conduct where

section 5 sets out a presumption that an MP is presumed to discredit the military police in the following situations: Presumed Discredit 5 A member of the military police is presumed to discredit the military police if the member is convicted of (

a) an offence under the Act, other than an offence tried at a

summary trial for which a minor punishment or a fine of not more than 25% of basic monthly pay has been imposed; or (

b) an indictable offence, or an offence punishable on

summary conviction, under any other Act of Parliament or the legislature of a province. [ 44 ]

Section 5 states that a MP is presumed to discredit the military police where the offender is convicted of an offence under the NDA , other than an offence tried at a

summary trial where a minor punishment or fine imposed is not more than 25 per cent of the member’s basic monthly pay. Based on Corporal D’Amico’s basic monthly pay, if his case had been tried by

summary trial, an acceptable fine would be approximately $1,500, which is in line with what the prosecution is recommending. The parity of the court martial case law suggests that a lower-end fine is appropriate for the facts of this case and is similar to the fines regularly awarded at

summary trial. Hence, the Court was particularly troubled that the above exemption in

Section 5 applies exclusively to offences where a member was convicted at

summary trial, thereby inferring an adverse presumption of discredit if the member is convicted by court martial for the same offence that he could have been tried for at

summary trial. [ 45 ] When applied to Corporal D’Amico’s case, the inequity in

Section 5 exposes him to negative consequences simply for having elected to have his case heard by court martial, a right he is fully entitled to. Without understanding the actual consequences that might flow from the presumed discredit, the Court has no trouble concluding that an entry of a conviction against him would have significant adverse repercussions. As such, the entirety of the first condition is met.

Not contrary to the public interest [ 46 ] The second condition precedent requires the Court to ensure that the granting of an absolute discharge is not contrary to the public interest. “Not contrary to the public interest” is a concept which includes a consideration of the need for the deterrence of others. [ 47 ] The mere fact that the offender was charged, held to account and was found guilty by a GCM for this offence not only denounces the conduct, but it sends a strong message of general deterrence. [ 48 ] The Court noted that other than witnesses there were few, if any, attendees from 2 MP Regiment during this trial.

Further, there was no evidence presented on a particular need for the court to send a greater message of general deterrence. The Court can only infer that the unit’s requirement to send a message of general deterrence is not as high in this case as it might be in others. This leaves the Court with greater flexibility to focus on the member’s specific deterrence and also provides it greater scope in crafting a very individualized sentence for this offender. [ 49 ] The prosecution also argued that they considered the objective of rehabilitation.

This objective is important especially in cases where there is evidence of the offender’s satisfactory post-offence conduct, as well as evidence that the factors that were the underlying cause of the conduct before the Court have been resolved or stabilized. [ 50 ] The Court is also influenced by the fact that the offender reached out in June 2018, three months before this offence occurred, signaling directly to his chain of command that he was struggling with balancing his personal circumstances. The incident before the Court arose out of this described struggle.

Although the court acknowledges that it was necessary for the chain of command to take action to enforce discipline, the Court is also mindful of the fact that members should not be unduly penalized in a situation such as this when they have reached out for help. If they are, what message does this send?

As such, the court has considered Corporal D’Amico’s personal circumstances as having a very significant mitigating affect in the consideration of the public interest. [ 51 ] It is also apparent on the evidence, that Corporal D’Amico is welcoming his upcoming posting to Ottawa to the CPU and the evidence suggests that the underlying catalyst to this offence and his other administrative shortcomings have been resolved. In short, the member is presented with a promising posting where his strengths will permit him to focus positively and make a meaningful contribution to the CAF.

If the Court imposes a sanction that could be counterproductive to his rehabilitation and could jeopardize his pending posting, then it would be to the detriment of the CAF at large. This must be weighed into the Court’s analysis of the public interest. [ 52 ] The objectives of rehabilitation and reintegration into military service are key components of military sentencing, and if the Court imposes even a minor punishment or a low fine for which this offence deserves, it cannot be sure that the presumed discredit to the military police will not impact the offender’s status as an MP or his upcoming posting.

It is clear that this unintended consequence was not considered nor desired by the chain of command. They all testified to having his best interests at heart and were unanimous in their expectation that his upcoming posting should not be affected by his finding of guilt. As such, this Court has no problem concluding that the imposition of an absolute discharge is not contrary to the public interest. Final comments [ 53 ] Corporal D’Amico, you were rightfully found guilty by a GCM composed of a panel of experienced military officers and senior non-commissioned members.

Although the prosecution chose to pursue the charge under

section 129 of the NDA , the offence of falling asleep on sentry exists as a separate offence under

section 75 of the NDA . Fortunately for you, they did not pursue the charge under

section 75 because if they had, given its maximum punishment available, you would not have been entitled to request an absolute discharge and your lapse in judgement could have had more negative consequences on your career and that cannot be ignored. [ 54 ] I sense that you and perhaps others may have believed that the pursuit of this charge against you was frivolous and unmerited. However, self-discipline is important and that is what you need to take away from this.

I am confident that your senior management team, including Sergeant Calhoun and Sergeant Jolliffe only want the best for you so you can excel as an MP. It was clear that they did not intend or expect this charge to hold you back, and as such, this Court will ensure it does not.

[ 55 ] Based on your recognition with the Platinum award for fitness, it is evident that you are a very talented athlete, but you also know very well that such a high level of fitness does not just happen. It is only possible because of the hours of training you invest when others are not looking. It demands hard work, sacrifice, and discipline. These same qualities you demonstrated in achieving a Platinum level of fitness also define us in our respective careers.

Ultimately, it is that same hard work, drive and dedication that separates top performers from the average. [ 56 ] You also know that in sport, we often recognize talent in an individual athlete and it can be extremely frustrating when that talented athlete chooses to do nothing with their gift. That is no different from your work as a MP. That is the message that your chain of command sent you. You have talent; you have the ability; you can project power; you can project professionalism.

But you disappointed them to some extent because your conduct fell short on this one occasion, but also during a period of time, you were not perceived as trying to be the best you could be as a military police officer as you were clearly distracted. [ 57 ] Now, as you move forward into your next position, you have a fresh new opportunity ahead and with this perspective, I really encourage you to hoist in the lessons that flow from all of this. [ 58 ] Here are a few things I encourage you to take away and remember: (

a) Complacency is unacceptable and will lead to error. In your upcoming position, you need to be able to manage boredom and be pre-emptive; (

b) Your dedication to your daughter. You paid a short-term price, but your family and the bond you have re-established with your daughter will serve you well as you move forward in life. We need our families and you should never regret the effort you invested in this regard; (

c) Your potential. Now that your personal situation has stabilized, you now have the opportunity to invest the same amount of energy into your profession that you do in your physical fitness. You are fortunate to be moving into a position where you can capitalize on both. FOR THESE REASONS, THE COURT: [ 59 ] DIRECTS that Corporal D’Amico be discharged absolutely on the charge before the Court. Counsel: The Director of Military Prosecutions as represented by Major J.G. Moorehead and Major A. Dhillon Major A.H. Bolik and Captain D.P. Sommers, Defence Counsel Services, Counsel for Corporal D.P. D’Amico