R v Nguyen, 2011 CM 4020

COURT MARTIAL Citation: R v Nguyen , 2011 CM 4020 Date: 20110819 Docket: 201106 Standing Court Martial Canadian Forces Base Esquimalt Victoria, British Columbia, Canada Between: Her Majesty the Queen - and - Lieutenant(

N) H. Nguyen, Offender Before: Lieutenant-Colonel J-G Perron, M.J. REASONS FOR SENTENCE (Orally) [ 1 ] Lieutenant (

N) Nguyen, having accepted and recorded your plea of guilty to charge No. 2, the court now finds you guilty of this charge. You have pled guilty to assault contrary to

section 266 of the Criminal Code of Canada . [1] I must now impose a fit and just sentence. [ 2 ] The prosecution submits that a sentence of a reduction in rank to sub-lieutenant and a severe reprimand is appropriate in this case. The prosecutor has not requested the court make a weapons prohibition order under

section 147.1 of the NDA or an order for the taking of DNA samples of the offender in the present case. [ 3 ] Your defence counsel suggests a sentence of a fine in the amount of $3,500 would be sufficient in the circumstances of this case. He also suggests the court could impose a reprimand if the court concludes a fine is not the appropriate sentence. [ 4 ] As indicated by the Court Martial Appeal Court (CMAC), sentencing is a fundamentally subjective and individualized process where the trial judge has the advantage of having seen and heard all of the witnesses, and it is one of the most difficult tasks confronting a trial judge. [2]

[ 5 ] The CMAC also clearly stated in Tupper [3] that the fundamental purposes and goals of sentencing as found in the Criminal Code of Canada apply in the context of the military justice system, and a military judge must consider these purposes and goals when determining a sentence.

Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society 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 acknowledgment of the harm done to victims and to the community. [ 6 ] The sentencing provisions of the Criminal Code at 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. [4] A sentence must also be similar to other sentences imposed in similar circumstances. [5] The principle of proportionality is at the heart of any sentencing. [6] The Supreme Court of Canada tells us at paragraph 42 of Nasogaluak that 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, but a sentence is also a form of judicial and social censure.

A proportionate sentence may express, to some extent, society's shared values and concerns. [ 7 ] A judge must weigh the objectives of sentencing that reflect the specific circumstances of the case. It is up to the sentencing judge to decide which objective or objectives deserve the greatest weight. The importance given to mitigating or aggravating factors will move the sentence along the scale of appropriate sentences for similar offences.

The wide discretion given to sentencing judges may be constrained by general ranges of sentences for particular offences to encourage consistency in sentencing. [7] [ 8 ] The Court Martial Appeal Court also indicated that the particular context of military justice may, in appropriate circumstances, justify and, at times, require a sentence which will promote military objectives. [8] But one must remember that the ultimate aim of sentencing in the military context is the restoration of discipline in the offender and in the military society.

The court must impose a sentence that should be the minimum necessary sentence to maintain discipline. [ 9 ] The prosecution suggests that the following principles of sentencing apply in this case: general and specific deterrence and denunciation. The prosecution has provided this court with seven cases in support of its submission that the appropriate sentence is a reduction in rank and a severe reprimand. [ 10 ] The court is also guided be the provision of sections 130 and 139 of the National Defence Act , and

section 266 of the Criminal Code of Canada in determining the lawfully permissible sentence in this case. A sentence may be composed of more than one punishment. [ 11 ] I will now review the key facts of this case. On 29 September 2010, HMCS PROTECTEUR was alongside in Puerto Quetzal, Guatemala. That evening, a number of junior officers were in the wardroom drinking, listening to music and socializing.

There were approximately12 to15 people in the wardroom at the time of the offence. [ 12 ] Sub-Lieutenant Childerhose had a sponge ball in his hand and motioned at Sub-Lieutenant Newman that he was going to throw the ball to him. Sub-Lieutenant Childerhose threw the ball to Sub-Lieutenant Newman as hard as he could. Sub-Lieutenant Newman did not catch the ball and it flew past Sub-Lieutenant Nguyen’s head, whose back was to Sub-Lieutenant Childerhose.

The sponge ball did not come into contact with Sub-Lieutenant Nguyen. [ 13 ] Sub-Lieutenant Nguyen believed that Sub-Lieutenant Childerhose threw the ball at him and told Sub-Lieutenant Childerhose to stop throwing things at him. Sub-Lieutenant Childerhose would have told Sub-Lieutenant Nguyen to, “Shut up. Relax.” Sub- Lieutenant Nguyen believed that Sub-Lieutenant Childerhose had told him to, “Fuck right off”. [ 14 ] Immediately after that exchange, Sub-Lieutenant Nguyen jumped over the back of his seat and ran toward Sub-Lieutenant Childerhose.

Sub-Lieutenant Nguyen began punching and striking Sub-Lieutenant Childerhose with his knees in Sub-Lieutenant Childerhose’s head and face area. Sub-Lieutenant Childerhose had covered his face in anticipation of being struck. The number of blows inflicted is unclear, however they were numerous. [ 15 ] Two senior officers intervened and Sub-Lieutenant Nguyen was removed from the wardroom. He returned to the wardroom a few minutes later and publicly apologized for his actions. Sub-Lieutenant Childerhose and Sub-Lieutenant Nguyen remained in the

wardroom afterward without incident. Sub-Lieutenant Childerhose did not suffer any injury as a result of the assault. [ 16 ] Commander Tremblay and Lieutenant(

N) Whiteside were called by the prosecution. It is clear from the evidence that Lieutenant(

N) Nguyen did not know how to control his temper at the time of the offence. While his Commanding Officer, Commander Tremblay, testified that Lieutenant(

N) Nguyen was a keen junior officer that embraces his duties and responsibilities and showed good promise as a naval officer, he did comment on his inability to control his temper and he did not consider him a people person. [ 17 ] Sub-Lieutenant Nguyen was given a recorded warning and placed on remedial measures for six months, from 8 September 2010 to 8 March 2011. [9] On 5 September, Sub-Lieutenant Nguyen had demonstrated insubordinate behaviour towards the ship's logistics officer, a lieutenant-commander, and had then sent an email to four sub-lieutenants in which he used unacceptable language towards that officer.

Sub-Lieutenant Childerhose and Sub-Lieutenant Cope went to see the lieutenant-commander and told her about the email from Sub-Lieutenant Nguyen. The lieutenant-commander asked to see the email and she was given a copy by Sub-Lieutenant Cope. [10] [ 18 ] Lieutenant(

N) Whiteside was Lieutenant(

N) Nguyen's immediate supervisor at the time of the offence. He drafted the recorded warning. He was also one of the persons that separated Sub-Lieutenant(

N) Nguyen and Sub-Lieutenant Childerhose on 29 September 2010 and he testified it had been easy to separate them since they had both recognized him as a senior officer. He described Lieutenant(

N) Nguyen as a keen sailor who was always willing to assist him and did very well as a sub-lieutenant. He agreed that this assault did not show officer-like qualities. He testified there were some uncomfortable feelings in the wardroom after the assault, but those were short-lived and the assault did not have any effect on Lieutenant(

N) Nguyen's work. He testified that Lieutenant(

N) Nguyen did follow anger management treatment, that he has improved, that he has now a calmer demeanour and is a joy to work with. [ 19 ] I will now examine the mitigating factors in this case. You do not have a conduct sheet; therefore, you are a first-time offender. You were 25 years old and had been a member of the Regular Force for five years and had been commissioned for approximately three years at the time of the offence. Although you are considered a first-time offender, I do not consider you to be a youthful offender.

You were old enough at the time of the offence and you had enough experience to know that your actions were wrong. Therefore, your age is not considered a mitigating factor. [ 20 ] You have pled guilty. Canadian jurisprudence generally considers an early plea of guilty as a tangible sign the offender feels remorse for his or her actions and that he or she takes responsibility for the illegal actions and the harm done as a consequence of these actions. Therefore, an early plea of guilty will usually be considered as a mitigating factor.

Although the doctrine might be divided on this topic, this approach is generally not seen as a contradiction of the right to silence and of the right to have the Crown 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 associated with the judicial proceeding. [ 21 ] The assault was not premeditated. There were no injuries as a result of the assault.

You returned to the wardroom and apologized publicly a few minutes after that assault and you rejoined your peers in the wardroom without any further incidents. There also does not appear to have been any detrimental effect to the cohesion of the wardroom. [ 22 ] You have benefitted from anger management treatment and have improved your behaviour. Your immediate supervisor spoke very well of your performance and of your attitude since the offence. Your CO thinks that you have the potential to become a good naval officer.

A review of Exhibit 9: a Personnel Development Review for the period of 02/05/11 to 10/06/11; a Personnel Development Review for the period of 01/04/10 to 19/09/10; a letter of performance from the CO of HMCS VANCOUVER; and a letter of assessment from the CO of HMCS ALGONQUIN, also indicates you have performed your duties well and that you possess the qualities to become a competent naval officer. [ 23 ] I note the following aggravating factors. While the assault was not planned, it was also not provoked by Sub-Lieutenant Childerhose.

He did not intentionally throw the ball at you and he did not hit you with the ball. While there may have been some confusion concerning what Sub-Lieutenant Childerhose did say to you, this situation does not amount to a provocation. You assaulted Sub-Lieutenant Childerhose because you could not control your temper. [ 24 ] It also appears that alcohol might have a part to play in this incident since all involved were in the wardroom drinking alcoholic beverages.

It surely is not the first time and an altercation between subalterns has occurred in a wardroom onboard a ship of the Royal Canadian Navy and it surely will not be the last. Having said this, the court does not condone this specific assault; it merely states that obvious. While such behaviour is not deemed acceptable and must be dealt with accordingly, it has and will occur, since it is part of human nature and is to be expected when certain conditions are present, such as alcohol and underlying factors such as possible animosity between individuals and other personal characteristics.

Each incident must be analyzed and dealt with in a manner that will enhance discipline. [ 25 ] The offence of assault may be seen as objectively serious since the maximum sentence is five years' imprisonment. This offence may be tried by a jury in a civilian criminal court because of this maximum sentence. But one must also consider that this offence is a hybrid offence, which means that, in a civilian context, the prosecutor may choose to proceed by indictment or summarily. The maximum sentence in the case of a

summary conviction is either imprisonment not exceeding six months or a fine not exceeding $5,000. Again, in the civilian context, a prosecutor would examine the exact facts of the case to determine whether he or she would proceed by indictment or summarily. There is no such option in the military justice system. [ 26 ] One must look at the specific facts of the case to determine the subjective severity of an assault.

While it appears that Lieutenant Nguyen did strike Sub-Lieutenant Childerhose's head and face area with his fists and knees numerous times, Sub-Lieutenant Childerhose was protecting himself and he did not suffer any injuries from these blows. They were also separated soon after the assault commenced. Therefore, the court does not consider this assault to be one of the more serious assaults. [ 27 ] This is not the conduct we expect of officers. It would appear that you have benefitted from the anger management treatment and have a much calmer temperament.

Controlling your emotions will make you a better leader and officer.

[ 28 ] I have reviewed the case law provided by the prosecutor. None involve an officer assaulting another officer on a defence establishment. Every case is quite different on its facts from the present case.

These cases do offer the court some assistance, but they do confirm that each case must be assessed on its facts to determine the appropriate sentence. [ 29 ] In determining the appropriate sentence, the court has considered the circumstances surrounding the commission of this offence, the evidence presented during the sentencing phase, the mitigating factors and the aggravating circumstances of this case and the representations by the prosecutor and by your defence counsel and also the applicable principles of sentencing. [ 30 ] The court has not been convinced that the principles of general and specific deterrence are as critical as argued by the prosecutor.

The court has not been provided evidence or the jurisprudence that would suggest that general deterrence is required, and Lieutenant Nguyen's conduct since the offence does not support a strong need for specific deterrence. The denunciation of the conduct is an important sentencing principle in this case since this type of behaviour is totally unacceptable. The sentence must thus be severe enough to convey that message. [ 31 ] The rehabilitation of the offender must also be considered when determining the appropriate sentence.

You have taken steps to control your temper and you have provided excellent service to your unit and the Royal Canadian Navy since the offence; thus the sentence must also reflect this sentencing principle. [ 32 ] Lieutenant Nguyen, the court considers that the minimum necessary sentence in the present case is a fine in the amount of $3,500. The fine shall be paid in monthly instalments of $500 commencing on the 15th day of September, 2011. Counsel: Captain P. Craig, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Major D.

Bernsten, Directorate of Defence Counsel Services Counsel for Lieutenant(

N) H. Nguyen