R v Hennessey, 2013 CM 2005

COURT MARTIAL Citation: R v Hennessey , 2013 CM 2005 Date: 20130213 Docket: 201274 Standing Court Martial Royal Military College of Canada Kingston , Ontario, Canada Between: Her Majesty the Queen - and - Officer Cadet J.M. Hennessey, Offender Before: Commander P.J. Lamont, M.J. Restriction on publication: By court order made under

section 179 of the National Defence Act and

section 486.4 of the Criminal Code , information that could disclose the identity of the person described in this judgment as the complainant in charge No. 1 shall not be published in any document or broadcast or transmitted in any way.

REASONS FOR SENTENCE (Orally) [ 1 ] Officer Cadet Hennessey, having accepted and recorded your pleas of guilty to four charges: in the first charge, a charge of assault; in the second and third charges, fighting with a person subject to the Code of Service Discipline; and in the fourth charge, a charge of drunkenness, and having considered the alleged and admitted facts, the court now finds you guilty on the first charge of assault, on the second and third charges of fighting, and on the fourth charge of drunkenness. [ 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 6, 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 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 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 the crafting of 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 an appropriate blending of these goals, tailored to the particular circumstances of the case. [ 5 ] 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. [ 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 this case are set out in Exhibit 6, the statement of circumstances.

In brief, after a night of revelry that seems to have included drinking alcohol to excess and a consensual fight with an acquaintance, the offender returned to his quarters at the Royal Military College in Kingston intoxicated by alcohol. He entered the private quarters of a female fellow cadet who, on awakening, was kind enough to treat the offender for a wound he had suffered in the fight. For her pains she was rewarded with persistent attempted groping by the offender and lewd suggestions.

Other cadets apparently came to the scene and assisted in trying to get the offender out of the quarters of the female cadet. The offender punched one of them and he also punched the female cadet. In fact, throughout this encounter, he seems to have been acting very aggressively. Acting Sub-Lieutenant Day intervened, and properly intervened. He was also rewarded by being punched by the offender. The military police were called.

I am told that the offender was arrested and was eventually released from custody after several hours. [ 8 ] On these facts counsel before me jointly recommend a sentence of a severe reprimand and a fine in the amount of $5,000. [ 9 ] The sentence to be pronounced, of course, is 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 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. [ 10 ] The circumstances of these offences display reprehensible conduct; most reprehensible from anyone and especially reprehensible coming from a cadet with prospects before him of a long and successful career in the Canadian Forces.

I am mindful of the fact that in this case there are several victims and that the reprehensible conduct I have referred to continued over more than a minimal period of time. One of those victims was indeed an acting sub-lieutenant and therefore a superior of the offender at the time of these offences. It is not charged, but I can tell you, Officer Cadet, that striking a superior officer is one of the most serious offences known to Canadian military law. [ 11 ] I am mindful of the role of alcohol in these offences.

I have not been provided with much in the way of particulars, but I infer from the fact that you consumed alcohol to the extent that you engaged in this conduct and the fact that you apparently have no recollection of any of this conduct, that alcohol may be a serious problem for you.

I have read the letter of Major Parent that was submitted in evidence and I infer from it that you have behaved especially well during the period of time that you have been consigned to the holding platoon and I am encouraged to read in Major Parent's letter that during that period of time you have abstained from the consumption of alcohol. [ 12 ] I am mindful of several mitigating factor in this case. First of all, the guilty pleas that have been offered and accepted.

Together with the apologies that I understand you have tendered to all the individuals affected by your conduct on that night, I infer that you are truly remorseful for your behaviour. I infer, also, that this conduct is out of character and is most unlikely to be repeated. One can have more assurance of that fact if you are able to maintain your sobriety. I am also mindful that some administrative measures have been taken with respect to you since these offences. You have no record of previous disciplinary infractions although you are, I infer now, a fourth-year cadet, having enrolled in 2009.

[ 13 ] The reference letters that have been provided to the court speaking glowingly of your character. These people know you better than I do. To some extent, I accept their judgements of your character. [ 14 ] On all the circumstances of the case, considering both the circumstances of the offences and 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: [ 15 ] FINDS you guilty of the first charge, for an offence under

section 266 of the Criminal Code ; guilty of the second and third charges, for offences under

section 86(

a) of the National Defence Act; and, guilty of the fourth charge, for an offence under

section 97 of the National Defence Act . [ 16 ] SENTENCES you to a severe reprimand and a fine in the amount of $5,000. The fine is to be paid in monthly instalment of $500 each commencing 15 March 2013 and continuing for the following nine months. In the event you are discharged or released from the Canadian Forces for any reason before the fine is discharged in its entirety, the then outstanding unpaid balance is to due the day prior to your release. Counsel: Major E. Carrier, Canadian Military Prosecutions Service Counsel for Her Majesty the Queen Mr. M. Hodgson, Hodgson Sinnett Criminal Lawyers, 109-303 Bagot Street , Kingston, Ontario Counsel for Officer Cadet Hennessey