R v Miller, 2011 CM 2016

COURT MARTIAL Citation: R v Miller , 2011 CM 2016 Date: 20110811 Docket: 201137 Standing Court Martial Canadian Forces Base Petawawa Petawawa, Ontario, Canada Between: Her Majesty the Queen - and - Private C.M.J. Miller, Offender Before: Commander P.J. Lamont, M.J.

REASONS FOR SENTENCE (Orally) [ 1 ] Private Miller, having accepted and recorded your pleas of guilty to the two charges in the charge sheet: in the first charge, a charge of using insulting language to a superior officer and in the second charge, absenting yourself without leave, this court now finds you guilty of the first charge and 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 principles 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 out of a slavish adherence to precedent, but because it appeals to our common sense of justice that similar cases should be treated in similar ways. But 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. [ 5 ] 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. [ 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. [ 7 ] 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. [ 8 ] The facts of these offences are not complicated and are set out in Exhibit 7, the Statement of Circumstances. On November 11th of 2010, the offender was absent from his place of duty.

Enquiries were made to locate him and in a telephone conversation with Sergeant Simms he made the statement to Sergeant Simms in the words quoted in the particulars of the first charge, "You are becoming a problem." [ 9 ] In the context of all the surrounding circumstances I don't have any hesitation in concluding that this comment made in these circumstances is insulting behaviour as contemplated by

section 85 of the National Defence Act . [ 10 ] Rather than returning to his place of duty as required of him, the offender continued his absence until the 2nd of December, 2010 when he was located at an address in Ottawa and arrested by the military police on a warrant issued sometime earlier by his unit. That event terminated this particular absence without leave. [ 11 ] At the time he failed to appear for duty on 11 November 2010, Private Miller had previously appeared for a

summary disposition on a charge of absence without leave and had received a sentence of 21 days detention. That disposition was under review at the time Private Miller failed to appear for duty on 11 November; and the result of the review was to vary the disposition to one of 20 days detention, which was pronounced and awarded on 3 December 2010.

Therefore, the sentence for the earlier offence of absence without leave was actually served after the offences referred to in the charges before the court. [ 12 ] On these facts, counsel before me jointly recommend a sentence of imprisonment for a period of 14 days and a fine in the amount of $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. [ 13 ] In this case I have considered the aggravating and mitigating circumstances referred to by both counsel in their addresses. This was an extended period of absence without leave.

It terminated only with the intervention of military authorities, although it appears that arrangements were made for the voluntary surrender of the offender immediately before he was arrested or shortly before he was arrested. I am also mindful of the difference in rank between the offender and Sergeant Simms to whom the insulting remark was offered.

[ 14 ] Dealing with some of the mitigating circumstances, the offender of course has pleaded guilty at the first opportunity available to him to both of the charges in the charge sheet. In all the circumstances of which I am aware, I take the pleas of guilty to be a sincere indication of remorse on the part of the offender for the conduct that brings him before this court.

He is a young man of 26 years of age without dependents and has served since his enrolment in the Canadian Forces on 1 September 2006 in the rank of private as an infantryman. [ 15 ] I am also mindful of the fact that the offender has been diagnosed with a major mental illness that he was apparently suffering from at the time of the offences that are before me.

I am provided with very little detail as to the nature of the illness, the symptoms of the illness, the prognosis for recovery from the illness, and most importantly the effects or cause and effect relationship that may exist between the symptoms of the illness and the behaviour that underlies the offences before the court.

Nevertheless I accept the opinion expressed by the psychiatrist in the letter before me, Exhibit 8, to the effect that were the offender to undergo a sentence of imprisonment, it would adversely affect his current mental health and prospects for recovery. [ 16 ] I am asked by both counsel, as part of the joint submission on sentencing, to impose as part of the sentence a period of imprisonment, but to suspend that part of the sentence.

Section 215 of the National Defence Act provides: Where an offender has been sentenced to imprisonment or detention, the carrying into effect of the punishment may be suspended by the service tribunal that imposed the punishment. The statute, the National Defence Act, does not contain much, if any, direction to sentencing courts as to the circumstances in which the suspension of a custodial sentence would be appropriate. [ 17 ] I have had the benefit of submissions from both counsel as to whether the suspension of sentence in this particular case would be appropriate.

In my view, and with respect for those whose opinions on this point may differ from mine, the existence of exceptional circumstances is not necessary before the court can properly exercise the power to suspend the execution of a custodial sentence, rather the court should look at all the surrounding circumstances of the case and apply the proper principles to which I have already referred to determine whether in an individual case a suspension of the custodial portion of a sentence is appropriate. [ 18 ] In all the circumstances of the present case considering both the circumstances of the offences and the circumstances of the offender, 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: [ 19 ] SENTENCES you to imprisonment for a period of 14 days and to a fine in the amount of $1500. The fine is to be paid in monthly instalments of $300 each commencing 15 September 2011 and continuing for the following four months. In the event you are released from the Canadian Forces for any reason before the fine is paid in full, the then outstanding unpaid balance is due and payable the day prior to your release. [ 20 ] SUSPENDS the carrying into effect of the punishment of imprisonment pursuant to

section 215 of the National Defence Act . Counsel: Captain R.D. Kerr, Canadian Military Prosecution Service Counsel for Her Majesty the Queen

Major S.L. Collins, Directorate of Defence Counsel Services Counsel for Private C.M.J. Miller