R v Matte, 2013 CM 4019

COURT MARTIAL Citation: R v Matte , 2013 CM 4019 Date: 20130910 Docket: 201348 Standing Court Martial Canadian Forces Base Petawawa Petawawa, Ontario, Canada Between: Her Majesty the Queen - and - Sergeant S. Matte, Offender Before: Lieutenant-Colonel J-G Perron, M.J. REASONS FOR SENTENCE (Orally) INTRODUCTION [ 1 ] Sergeant Matte, having accepted and recorded your plea of guilty to charge number two, the court now finds you guilty of this charge laid under

section 124 of the National Defence Act . The court must now determine a just and appropriate sentence in this case. [ 2 ] The statement of circumstances to which you formally admitted the facts as conclusive evidence of your guilt and your testimony provide this court with the circumstances surrounding the commission of this offence. At the time of the offence, you were a member of 2 Combat Engineer Regiment. On 3 October 2012, you participated in a

Section Fire and Movement Live Fire Exercise. You were acting as a

section commander and were also tasked as an assistant range safety officer (ARSO). [ 3 ] The live fire exercise consisted of two ranges, a live fire range and an area for dry/blank practice exercises (the blank range). Each range had its own distinct ammunition point. All live ammunition was kept at the live range; all blank ammunition was

kept at the blank range. [ 4 ] On 3 October, all personnel received a complete safety briefing from the officer in charge (OIC) and the range safety officer (RSO).

All were instructed that all personnel going from one range to the other had to go through the ammunition point of the range they were at in order to give back all unexpended ammunition and get their weapons cleared. [ 5 ] At the beginning of the exercise, the range staff; being, the OIC, the RSO and eight ARSOs performed a run through the ranges as participants in order to ensure standardized training and safety before the sections were put through the training.

On the live range you received three magazines of live 5.56-milimetre ammunition since you were one of the ARSOs going through the live range for the range staff practice. [ 6 ] Following this practice you put your personal equipment and C8 rifle aside as you were then employed as an ARSO. You did not go to the live ammunition table to give back your unexpended live ammunition. You still had one magazine with 30 rounds of live 5.56-milimetre ammunition.

Some time later, after a few sections had gone through the ranges, it was your section's turn to first go through the dry and blank training. [ 7 ] You grabbed your personnel equipment, including the live ammunition, and headed over to the blank range. You did not go through the live ammunition table in order to give back all unexpended live ammunition and clear your weapon. [ 8 ] At the blank range you received a magazine of blank 5.56-milimetre ammunition. Each participant at the blank range was required to have a Blank Firing Attachment (BFA). The BFA is only to be used with blank ammunition.

If live ammunition is fired when a BFA is fixed to a weapon, it will rip off and destroy the BFA. [ 9 ] As your

section started the advance on the blank range, the

section came under enemy contact (Sapper Cyr was one of the enemies). Your

section responded and fired blank rounds at the enemy. You first fired a two round burst (double tap) at the enemy. You had loaded a magazine of live ammunition on your rifle. The first round blew the BFA off the rifle. [ 10 ] You noticed the problem and immediately removed the live ammunition magazine from the rifle. You replaced the magazine with a magazine of blank ammunition but you did not properly unload your weapon. You did not clear the chamber of the weapon and a live round remained chambered in the weapon.

You fired a third live round. [ 11 ] One of the live rounds fired struck Sapper Cyr in the left femur. You ran to Sapper Cyr and, with others, performed initial first aid. You stated, on the spot, that you had shot Sapper Cyr. A "no-duff" was quickly called by another enemy force member, the exercise was stopped and Sapper Cyr was rapidly evacuated. [ 12 ] You were forthcoming with the 2 Combat Engineer Regiment chain of command and informed among others the exercise OIC and the unit Regimental Sergeant Major that you had shot Sapper Cyr and had made a mistake.

On 16 October 2012, you attended the Petawawa Military Police Detachment and, after having been properly cautioned, provided a typed statement of the events. You also answered all of the investigator's questions. [ 13 ] Having reviewed the main facts of this case I will now determine the sentence.

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 and it is one of the most difficult tasks confronting a trial judge. [ 14 ] The Court Martial Appeal Court clearly stated 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.

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;

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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. [ 15 ] The court must determine if protection of the public would best be served by deterrence, rehabilitation, denunciation or a combination of those factors. [ 16 ] The sentencing provisions of the Criminal Code , ss. 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.

A sentence must also be similar to other sentences imposed in similar circumstances. The principle of proportionality is at the heart of any sentencing. Proportionality means that 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. [ 17 ] 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 the military society.

Discipline is one of the fundamental prerequisites to operational efficiency in any armed force. [ 18 ] The prosecution and your defence counsel have jointly proposed a sentence of detention for a period of 10 days and a fine in the amount of $5,000 to be paid at $250 per month.

The Court Martial Appeal Court has stated clearly 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. [ 19 ] 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) this offence is subjectively very serious since a fellow soldier was seriously injured during a training exercise because of your carelessness. Sapper Cyr was hospitalized for one week then was put on medical leave of over one month. Sapper Cyr's left femur was shattered by the bullet and he must live with a metal plate attached to his femur for the rest of his life. He was back at work at 2 Combat Engineer Regiment in a limited capacity in the late fall of 2012. He has been attending rehabilitative physiotherapy since the incident. It is expected he will make a nearly full recovery.

Sapper Cyr will be attending a three-month combat engineer career course (QL5) in the fall of 2013 in Gagetown. You can count yourself lucky he was not killed or suffered more serious injuries; (

b) you were 33 at the time of the offence and had been in the Regular Force for 13 years. You were promoted to the rank of sergeant in 2008. You had enough experience to know the importance of proper security measures at a live fire range. You failed to clear your weapon and return your live ammunition before you joined your

section on the blank range. You again failed to clear your weapon properly after you had fired the first two shots. As a leader, it was your responsibility to ensure the safety of your subordinates and any other person on the range. You had enough experience to know better; (

c) your conduct sheet contains one commendation and two charges. I will only examine the charges at this time. You were absent without leave for a period of 1 hour and 40 minutes in 2007. You were also found guilty of conduct to the prejudice of good order and discipline in Kandahar in 2009. You had left a fragmentation grenade unsecured in a location that could be accessed by locally engaged personnel;

(

d) while I find the first offence to have less relevance than the second to the present case, these two offences and today's charge all involve a lack of self-discipline on your part. The offence in Kandahar shows a lack of respect for the rules surrounding the security of weapons and that is relevant to the present case. [ 20 ] As to the mitigating circumstances, I note the following: (

a) you immediately admitted your error to your fellow soldiers and your chain of command. You cooperated fully with the military police and provided a complete written statement at the earliest opportunity. You have pled guilty. A plea of guilty will usually be considered as a mitigating factor.

This approach is generally not seen as a contradiction of the right to silence and of the right to have the 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 associated with the judicial proceeding. 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 these actions; (

b) you have also suffered from this incident. You testified that you have been receiving treatment from the mental health services since the incident. You were initially seen twice a week and you now see a social worker once a month; (

c) you have done what few offenders do; you took the stand and you expressed your remorse. You have shown the courage we wish to see in our leaders by stating publically, before members of your unit, that you made a mistake and that you are sorry. I find that you are honest when you say you are truly sorry for what you have done; (

d) I have reviewed Exhibit 8 which contains two Personnel Evaluation Reports (PERs). Your performance for the period 2011- 2012 was rated as mastered and your potential for promotion was rated as outstanding. Your commanding officer had recommended your immediate promotion to warrant officer. Your PER for the period 2012-2013 rates your performance as exceeding standard and your potential as normal. That is a marked drop from the previous year. It can probably be explained by the incident occurring in October 2012 and its effect on you; (

e) Major Harwick commands 28 Squadron since July of this year. She testified she has employed you as her "go to guy" because she considers you a solid NCO who has always met her expectations. She presently employees you as the squadron quartermaster which is a position that is normally filled by a warrant officer. She will continue employing you in that capacity after you have served your sentence; (

f) this evidence appears to demonstrate this incident is an error that is out of character and should hopefully not happen again; (

g) you have five operational tours, of which four are in Afghanistan. You were awarded Commander CEFCOM's commendation in 2007 for two distinct events during your second tour in Afghanistan. You showed skill and diligence in discovering a non-detonated Improvised Explosive Device (IED) and weapons cache while on patrol and during the second event you demonstrated your courage and determination when you conducted a hasty breach and successfully evacuated a severely wounded Canadian soldier following an IED strike; and (

h) your superiors know you much better than I. It appears from Major Harwick's testimony, your PERs and the commendation that you are a solid solider who can become an even better leader. [ 21 ] The law in Canada is quite clear on the issue of joint submissions. A sentencing judge has very little leeway in the case of a guilty plea. This is because the court does not have all the information that led to the joint submission.

A court must respect the agreement of both parties unless it is clearly not in the public interest or that it would bring the administration of justice into disrepute. [ 22 ] I have concluded that denunciation and general deterrence are the main sentencing principles that need to be applied in the present case. This is a serious offence but your conduct since the incident and your testimony demonstrate clearly that you have learned from this unfortunate incident.

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. [ 23 ] The court must impose the minimum sentence that will provide a clear message to you and to others that this type of conduct is unacceptable and a sentence that will assist you in your rehabilitation. FOR THESE REASONS, THE COURT: [ 24 ] FINDS you guilty of the second charge, for an offence under

section 124 of the National Defence Act . [ 25 ] SENTENCES you to detention for a period of 10 days and a fine in the amount of $5,000. The fine shall be paid in monthly instalments of $250 starting on the 15th of October 2013. [25] Counsel: Major J.E. Carrier Counsel for Her Majesty the Queen Major C.E. Thomas, Directorate of Defence Counsel Services Counsel for Sergeant S. Matte