R v Katcharov, 2012 CM 4015

COURT MARTIAL Citation: R v Katcharov, 2012 CM 4015 Date: 20120720 Docket: 201238 Standing Court Martial Asticou Courtroom Gatineau, Quebec, Canada Between: Her Majesty the Queen - and - Corporal P. Katcharov, Offender Before: Lieutenant-Colonel J-G. Perron, MJ REASONS FOR SENTENCE (Orally) [ 1 ] Corporal Katcharov, having accepted and recorded your plea of guilty to charge number one, the court now finds you guilty of that charge. This charge was laid under

section 129 of the National Defence Act and you have pled guilty to having consumed an alcoholic beverage while carrying a firearm. The court must now determine a just and appropriate sentence in this case. [ 2 ] The statement of circumstances, to which you formally admitted facts as conclusive evidence of your guilt, provides this court with the circumstances surrounding the commission of this offence. At the time of the offence you were employed as a military police member at the military police unit Ottawa. You were in charge of "A" shift during the evening of the 18th and the morning of 19 November 2011.

You were replacing your supervisor, a master seaman, and you were responsible for three military police personnel and four commissionaires. [ 3 ] Upon your arrival, you went to get your weapon, but omitted to sign the weapon's register. During the evening a commissionaire noted that you were making frequent trips to the unit kitchen. The commissionaire also noticed that you smelled of alcohol, and as the shift progressed began to slur your words and were unsteady on your feet. This was also noticed by two of the other commissionaires.

[ 4 ] At one point in the evening the commissionaire went in the kitchen and observed you put a green can in the cupboard. When you left the commissionaire looked and found a large open can of beer with a bit of alcohol still in it. The commissionaire then confronted you about drinking beer while on shift. You told him you had been drinking a beer in the kitchen, showed him the beer, and then you poured what was left of it down the drain. [ 5 ] The commissionaire then contacted the shift 2 i/c, a corporal, to report that you had been drinking on shift.

The shift 2 i/c came to the patrol office and also noticed that you were exhibiting signs of impairment. He asked you for your service weapon, but you refused and said "don't worry, it's okay" or words to that effect. The shift 2 i/c then called to report the incident to the Ottawa military police duty officer. The shift 2 i/c was instructed by the military police duty officer to relieve you from duty, secure your weapon, and transport you home.

When the shift 2 i/c informed you of the orders from the military police duty officer, you became agitated, stared him down, and stated a couple of times "you could have gone a different route" or words to that effect. Your weapon and duty gear were put in the MP storage vault and you were then taken to your residence without any incident. [ 6 ] The military police unit Ottawa initiated a unit disciplinary investigation. In a cautioned interview, you indicated that on the 18th of November, you were feeling stressed and you admitted having found a beer in your bag and drinking it while on shift.

You thought that one beer would not hurt anybody. During that same interview you also admitted that "you screwed up" and that you had been abusing alcohol for a couple of months prior to this incident because your mother had died and your sister was diagnosed with a brain tumour during the summer of 2011. You indicated in the interview that you had made a stupid decision, that you regretted this decision, and that you should have done that.

You also indicated that you realized how serious the situation was and intended to seek help. [ 7 ] As indicated by the court Martial Appeal Court sentencing is a fundamentally subjective and individualized process where the trial judge has the advantage of having seen and heard all of the witnesses, when there ware witnesses, and it is one of the most difficult tasks confronting a trial judge, (See R v Tupper , 2009 CMAC 5 , para 13 ). [ 8 ] The Court Martial Appeal Court clearly stated that the fundamental purposes and goals of sentencing, as found in the Criminal Code of Canada [1] , apply in the context of the military justice system and a military judge must consider these purposes and goals when determining a sentence, (See R v Tupper , para 30 ).

The fundamental purpose of sentencing is to contribute to respect for the law and the protection of society, and this includes the Canadian Forces, by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community. The court must decide if protection of the public would best be served by deterrence, rehabilitation, denunciation, or a combination of those factors. [ 9 ] The sentencing provisions of the Criminal Code , sections 718 to 718.2 , provide for an individualized sentencing process in which the court must take into account not only the circumstances of the offence, but also the specific circumstances of the offender, (See R v Angelillo ,

(2006) S.C.C. 55, at para 22). A sentence must also be similar to those sentence imposed in similar circumstances, (See R v L.M. ,

(2008) S.C.C. 31, at para 17). The principle of proportionality is at the very heart of any sentencing, (See R v Nasogaluak ,

(2010) S.C.C. 6, at para 41). Proportionality means a sentence must not exceed what is just and appropriate in light of the moral blameworthiness of the offender and the gravity of the offence.

[ 10 ] The court must also impose a sentence that should be the minimum necessary sentence to maintain discipline. The ultimate aim of sentencing is the restoration of discipline in the offender and in military society.

Discipline is one of the fundamental prerequisites to operational efficiency in any armed force. [ 11 ] The prosecution and your defence counsel have jointly proposed a sentence of a reprimand and a fine in the amount of $1,500. [ 12 ] The Court Martial Appeal Court has stated that a sentencing judge should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute or unless the sentence is otherwise not in the public interest. [ 13 ] I will now set out the aggravating circumstances and the mitigating circumstances that I have considered in determining the appropriate sentence in this case.

I consider the following to be aggravating: (

a) Section 129 of the National Defence Act is an objectively serious offence since one can be sentenced to dismissal with disgrace from Her Majesty's service. This is also a subjectively serious offence. You consumed alcohol while you were on duty as a supervisor of your military police patrol shift. You were wearing a weapon. You were relieved from duty and were taken home, thus your subordinates had to continue the shift without you, the shift i/c. You did fail to show the leadership qualities expected of you at that time. (

b) While you only had the benefit of three years of service as a member of the military police unit, you were 33 years old at the time of the offence and you were mature enough to know what was expected of you or anyone in your position. Special powers and authority are vested in members of the military police. The Canadian Forces and the public rightly expect that members of the military police will conduct themselves in a manner that will reflect positively on them and on the Canadian Forces. [ 14 ] As to the mitigating circumstances, I note the following: (

a) You do not have a conduct sheet, therefore, you are a first-time offender; you admitted to drinking the beer when you were initially confronted by the commissionaire and you admitted to doing so during the disciplinary investigation; you indicated at the earliest occasion that you wished to plead guilty, therefore, such cooperation with a disciplinary investigation and a plea of guilty will usually be considered as mitigating factors.

This approach is generally not seen as a contradiction of the right to silence and of the right to have the Crown prosecution prove beyond a reasonable doubt the charge laid against the accused, but is seen as a means for the courts to impose a more lenient sentence because the plea of guilty usually means that witnesses do not have to testify and that it greatly reduces the costs associate with judicial proceedings. It is also usually interpreted to mean that the accused wants to take responsibility for his or her unlawful actions and the harm done as a consequence of those actions. (

b) You have sought medical help since November 2011 to deal with your misuse of alcohol. You have abstained from alcohol since that time. Your addiction counsellor states that you take responsibility for your actions and their consequences. She also states that you are dedicated to your recovery, (See Exhibit 8). It would clearly appear that you are truly remorseful. [ 15 ] I have also reviewed Exhibits 9 and 10, two personnel evaluation reports, and Exhibits 11 and 12, two character reference letters.

They mention your sense of responsibility, your reliability and the fact that you are well on your way to your next promotion. [ 16 ] This incident was deemed a misuse of alcohol and was reported to Director Military Career Administration, DMCA, in November 2011. It is expected that DMCA will review your case once the court martial proceedings are completed. Your chain of command intends to recommend to DMCA that you be retained in the Canadian Forces and intends to put you back on patrol. [ 17 ] Your credentials were never formally suspended by the MP professional standards.

Once this court martial has been concluded, military police professional standards will initiate an investigation. A determination will be made at that time whether a military police credential review board will need to be convened. Your chain of command also intends to recommend that you keep your credentials.

[ 18 ] It would appear that this incident is truly out of character for you. Your chain of command clearly sees you as someone who can contribute positively to the success of the Canadian Forces. [ 19 ] Your mother had died and your sister was diagnosed with cancer during the summer of 2011. You experienced much stress, and unfortunately you turned to alcohol to deal with this stress.

It would appear from the evidence before this court that you have realized the errors you committed and have taken the necessary steps not to repeat those errors. [ 20 ] I have concluded that denunciation and general deterrence are the main sentencing principles that need to be applied in the present case although the rehabilitation of the offender must also be considered. Your actions since the offence clearly indicate that the principle of specific deterrence is not applicable in this case.

Having reviewed the totality of the evidence, the jurisprudence, and the representations made by the prosecutor and your defence counsel, I have thus come to the conclusion that the proposed sentence would not bring the administration of justice into disrepute and that the proposed sentence is in the public interest. Therefore, I agree with the joint submission of the prosecutor and of your defence counsel. FOR THESE REASONS, THE COURT [ 21 ] FINDS you guilty of the first charge under

section 129 of the National Defence Act for having consumed an alcoholic beverage while carrying a firearm. [ 22 ] SENTENCES you to a reprimand and a fine in the amount of $1,500. The fine shall be paid in monthly instalments of $300 starting on the 15th day of August, 2012. Counsel : Major A.C. Samson, Canadian Military Prosecution Service Counsel for Her Majesty, the Queen Major S. Collins and Major A. Reed, Directorate of Defence Counsel Services Counsel for Corporal P. Katcharov