R v Hull, 2014 CM 1001

COURT MARTIAL Citation: R v Hull, 2014 CM 1001 Date: 20140120 Docket: 201343 General Court Martial Canadian Forces Base Esquimalt Esquimalt, British Columbia, Canada Between: Her Majesty the Queen - and - Able Seaman W.F.R. Hull, Offender Before: Colonel M. Dutil, C.M.J. REASONS FOR SENTENCE (Orally) [ 1 ] Able Seaman Hull pleaded guilty to an offence under s. 117(

f) of the National Defence Act for

an act of a fraudulent nature with regard to a claim for reimbursement of public funds for the travel of his dependant children from Newfoundland to British Columbia, where his children had not travelled. The circumstances surrounding the commission of the offence reveal that he enrolled in the Canadian Forces in October 2010 and that at that time, his household goods and effects were placed into long term storage at a commercial facility in Mount Pearl at the Crown's expense. Able Seaman Hull then proceeded to basic training in Saint-Jean, Québec.

As of 28 October 2010, his service records have shown his marital status as separated, with two dependant children who did not reside with him in Saint-Jean. He had a verbal agreement with his former spouse to share custody with a plan that the children would reside primarily with him once he was posted. [ 2 ] Following his training in Saint-Jean, Able Seaman Hull was posted in March 2011 to Canadian Forces Fleet School Esquimalt to begin his basic occupation training.

While undergoing that training, he was required to live in single quarters pursuant to Canadian Forces Base Esquimalt Orders, but he was granted permission to live ashore on 13 July 2011. [ 3 ] Between 8 and 10 August 2011, Able Seaman Hull was briefed on his move entitlements by the Base Orderly Room staff and as he intended to move his dependant children from Mount Pearl, Newfoundland and Labrador, to live with him in Victoria, British

Columbia, he was entitled to return to Newfoundland to pick up his children and to accompany them to Victoria at Crown's expense. Able Seaman Hull was authorized by the authorities to make a temporary duty trip to Newfoundland and return solely on the basis that he was to pick up his dependant children and return with them to Victoria, British Columbia. [ 4 ] Travel arrangements were made by the Base Orderly Room staff for him to fly by commercial air carrier to St. John's, Newfoundland, and to return with his children by Privately Owned Motor Vehicle.

A travel authorization and claim was initiated by the staff, authorizing him to travel to Newfoundland and for his two dependant travel from Mount Pearl to Victoria in his company. On 10 August 2011, Able Seaman Hull took an advance payment to it on his claim of $6,575. On 13 September 2011, he took an additional advance on this claim in the amount of $3,520.44. [ 5 ] On 11 August 2011, Able Seaman Hull was flown from Victoria to St. John's at the expense to the Crown of $562.53. Between 29 August and 11 September 2011, Able Seaman Hull drove from Newfoundland back to Victoria.

He was accompanied on his return trip by his fiancée who was living in Newfoundland prior to accompanying him to Victoria. As she was not a dependant, there was no entitlement for her to travel to Victoria at public expense.

Able Seaman Hull's children did not travel with him from Mount Pearl to Victoria during this return trip, and have not subsequently joined him at his place of duty. [ 6 ] On 18 October 2011, Able Seaman Hull signed and submitted his travel claim to the Base Orderly Room at CFB Esquimalt, seeking reimbursement from public funds for expenses related to his travel and relocation of his dependants. The claim indicated that three persons had travelled from Mount Pearl to Victoria, departing on 29 August 2011, and arriving on 11 September 2011.

Able Seaman Hull claimed for travel expenses for his two dependant children on this trip, despite knowing that his children had not travelled with him. [ 7 ] He also submitted a request for a reimbursement for interim lodgings, meals and incidentals, on arrival in Victoria, for three people between 11 and 23 September 2011. This portion of the claim sought reimbursement of hotel, meal, and incidental expenses for him as well as for his two children. [ 8 ] The total value of the claim submitted by Able Seaman Hull was $11,874.70.

Had he not sought reimbursement for expenses for his children's travel, the value of the claim to drive from Mount Pearl to Victoria, unaccompanied, would have been $9,740.59. The total cost of airfare and the full claim was $12,437.23. [ 9 ] When Able Seaman Hull submitted his claim and supporting receipts, the clerk noticed some discrepancies, including the hotel receipts did not indicate occupancy for the expected number of people, and the BC Ferries receipt submitted by the offender for travel from Tsawwassen, BC to Vancouver Island showed that only two adults had boarded in his vehicle as passengers.

Able Seaman Hull advised that his ferry receipt only showed two adults travelling because the ferry attendant had given him a deal and not charged him for his children. [ 10 ] Able Seaman Hull's claim was audited by a Base Orderly Room supervisor, who detected several irregularities, including those noted by the clerk, as well as the fact that Able Seaman Hull, travelling with his children was entitled to two hotel rooms at each of his nightly stops, but only provided receipts for one.

The claim was sent back to the clerk for clarification. [ 11 ] Asked to clarify his version of events, Able Seaman Hull made up a story that his children had travelled with their mother and stayed with her in different hotel rooms; and had travelled with her on the ferry. The clerk asked for any receipts or other documents to substantiate this information, and to show that his children were in Victoria at the time.

Able Seaman Hull informed the clerk that his children were actually enrolled in school in Newfoundland due to a family emergency, and that he had sent his mother back to Newfoundland with the children as well. On 31 October 2011, Able Seaman Hull advised that he was not able to gather any of the requested receipts or documents, particularly as his mother was busy dealing with a death in the family, and he requested that the claim for his children's meal and incidental expenses be removed from his claim, and that the claim be closed.

Able Seaman Hull later admitted that the information that he had provided to the clerk was untrue. [ 12 ] As part of a unit disciplinary investigation and a subsequent Military Police investigation Able Seaman Hull provided voluntary statements including that his original plan was for himself, his fiancée and his two children to travel from Newfoundland to Victoria, but that after arriving in Newfoundland and prior to departing for Victoria, he and his ex-wife decided to leave his children in Newfoundland to finish their school year. Able Seaman Hull did not advise his chain of command of his change in plan.

He also admitted that he had provided false information regarding his claim, and stated that he had done so because he was afraid that he would otherwise have to repay the entire cost of his move.

[ 13 ] Able Seaman Hull is 47 years old but only joined the Canadian Forces in 2010. He is a very good performer and enjoys the reputation of being reliable and helpful. Since the commission of the offence, his performance and conduct has been very solid and reliable. [ 14 ] Now counsel for the prosecution and defence have made a joint submission on sentence. They recommend that Able Seaman Hull be sentenced to a reprimand and a fine in the amount of $2,000 payable in 10 equal payments of $200 per month beginning on 15 February 2014.

This submission is within the range for offences of a similar nature and relatively similar circumstances. It is not contrary to public interest and the court has no indication that it would bring the administration of military justice into disrepute. [ 15 ] Counsel for the prosecution, and it has been agreed by the defence, emphasize that the principles and objectives that are applicable in this case are general deterrence, specific deterrence and denunciation, of course, leaving some room for rehabilitation. The court also agrees with that statement.

I will move quickly to the aggravating and mitigating factors. [ 16 ] The aggravating factors in this case are: (

a) The objective seriousness of the offence: a person convicted of an offence under s. 117(

f) is liable to imprisonment for less than two years, which is almost similar to a person found guilty of an offence of fraud under s. 380 of the Criminal Code when the fraud is prosecuted by way of indictment and the offender then is liable to imprisonment for a term not exceeding two years where the value of the subject-matter of the offence does not exceed five thousand dollars. (

b) The subjective seriousness of the offence: It has been constantly recognized since the decision of the Court Martial Appeal Court in St. Jean v. R. , CMAC 2000, No. 2, that offences involving a breach of faith by way of fraud undermine public respect for the public institution and result in losses of public funds. Sentencing offenders for such offences must emphasize the need for general deterrence as well as the denunciation of the behaviour and the abuse of confidence vested in the offenders by their employer as well as the taxpayers. (

c) The degree of planning and premeditation involved: the circumstances surrounding the commission of the offence reveal that Able Seaman Hull continued, over a broad period, to use deceit and falsehood concerning the fact that his children had never travelled with him. He may have feared that the authorities would have recovered the full amount of the claim as opposed to the sum involved in the fraudulent act which is $2,104.11, however, it is only during the formal unit and police investigation that he admitted his wrongdoing. [ 17 ] But there's also significant mitigating factors in this case: (

a) The plea of guilty that was entered at the earliest opportunity. I consider this plea in the context of a General Court Martial, of course, as being a full acceptance of responsibility for his actions and I think he is remorseful in the context of this case considering his age and experience in life. (

b) Also mitigating is the evidence before the court that Able Seaman Hull has no previous disciplinary or prior criminal record for fraudulent offences. (

c) On the family and financial situation of the offender, the court notes that he is now living with his fiancée and it is planned that his children will later join them in Victoria. In the interim, of course, he pays approximately $500 per month in support for his children, and he pays that to his ex-wife, and concerning his broad financial situation, the court notes that it appears to be under control but that it requires certainly vigilance. (

d) And finally, the court has received evidence that Able Seaman Hull, since certainly the commission of the offence, that he has showed that he is a very good and trustworthy performer. That he has been elevated to his current naval rank and continued to demonstrate that the facts that led to the commission of the offence were the result of certainly lack of a judgement that he unfortunately tried to cover up in making more false statements by fear of having to reimburse the total amount of the trip after he had agreed with his ex-wife, once in Newfoundland, that it was in the best interest of the children to stay in Newfoundland until the end of the school year.

At his age and experience in life, he should have known better. [ 18 ] The court agrees with counsel that this case certainly fits within the range of sentences imposed in similar matters and is not so off the mark that its adoption by this court martial would be contrary to the public interest or bring the administration of justice into disrepute. Therefore, the court considers that the proposed sentence is certainly sufficient to meet the objectives sought by the prosecution and recognized by the defence, and they are: the denunciation, general and specific deterrence, as well as the rehabilitation. FOR THESE REASONS, THE COURT: [ 19 ] FINDS you guilty of

an act of a fraudulent nature under s. 117(

f) of the National Defence Act . [ 20 ] SENTENCES you to a reprimand and a fine in the amount of $2,000 payable in 10 monthly equal instalments of $200 commencing on 15 February 2014, however, the fine will be payable in full immediately at the date of your release should you be, of course, released by the Canadian Forces prior to the full payment of that fine. Counsel: Lieutenant-Colonel S.D. Richards and Major J.G. Simpson, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Lieutenant-Colonel D. Berntsen, Directorate of Defence Counsel Services Counsel for Able Seaman W.F.R. Hull