R. v. Halmich, 2015 CM 1009

COURT MARTIAL Citation: R. v. Halmich , 2015 CM 1009 Date: 20150610 Docket: 201515 Standing Court Martial Canadian Forces Base Esquimalt Victoria, British Columbia, Canada Between: Her Majesty the Queen - and - Private R.A. Halmich, Offender Before: Colonel M. Dutil, C.M.J. REASONS FOR SENTENCE (Orally) [ 1 ] Aviator Halmich has pleaded guilty to one count of being absent without leave, contrary to

section 90 of the National Defence Act . [ 2 ] Prosecution and defence have made a joint submission on sentence in the order of a fine in the amount of $200. Although the court is not bound by this joint submission, it can only reject it if the recommendation is contrary to the public interest and the sentence would bring the administration of justice into disrepute. [ 3 ] The circumstances surrounding the commission of the offence are found at Exhibit 6, a document entitled the “Statement of Circumstances.” It reads as follows: At all material times, Private Halmich was a Regular Force member employed as a meteorological technician with Maritime Forces

Pacific Headquarters at Canadian Forces Base Esquimalt, British Columbia. Private Halmich was scheduled to be at work from 0515 to 1800 hours on Saturday, 22 November 2014, at building D-100, Canadian Forces Base Esquimalt, British Columbia. Private Halmich was informed and understood that his place of duty was at building D-100, on 22 November 2014, for his shift. Private Halmich did not receive any authorization to not be present at his place of duty for his shift. Private Halmich did not arrive at his place of duty at 0515 hours on 22 November 2014.

Private Halmich was not feeling well on the evening of 21 November 2014 and he contemplated calling in sick for his shift. Private Halmich decided against calling in sick for his shift as he believed his supervisor would be required to cover for him and Private Halmich did not want to ruin his supervisor’s Saturday. Private Halmich slept through his alarm on the morning of 22 November 2014 and did not arrive at his place of duty until 1030 hours. Private Cornolius, another meteorological technician with Maritime Forces Pacific Headquarters, was working the period immediately preceding Private Halmich’s shift.

Private Cornolius intended to wait for Private Halmich to show up for his shift, but while in the parking lot, Private Cornolius believed he spotted Private Halmich’s vehicle and so he left work. Private Cornolius arrived back at building D-100 on the evening on 22 November 2014, and had a discussion with Private Halmich. Private Halmich suggested that Private Cornolius tell their supervisors that he offered to work for two extra hours on the morning of 22 November 2014 to cover Private Halmich’s shift.

Private Halmich mentioned to Private Cornolius that if he lied to their supervisors that would prevent Private Cornolius from getting into trouble for leaving work unmanned. Private Halmich also told Private Cornolius that he was at building D-100 by 0730 hours, knowing that was not true. In fact, Private Halmich was required to report to the watch supervisor five minutes prior to each of his scheduled shifts in accordance with an initial counselling he received on 5 November 2014.

Private Halmich wanted Private Cornolius to advise their supervisors that he covered Private Halmich’s shift until 0730 hours on 22 November 2014 to prevent Private Halmich from getting into trouble for missing his reporting time to the watch supervisor.

Despite his initial actions to cover up any wrongdoing, Private Halmich was cooperative and forthcoming during the investigation into this matter and he is remorseful of his conduct. [ 4 ] The fundamental purpose of sentencing at courts martial is to contribute to the respect of the law and the maintenance of military discipline by imposing punishments that meet one or more of the following objectives: (

a) the protection of the public, including the Canadian Forces; (

b) the denunciation of the unlawful conduct; (

c) the deterrent effect of the punishment, not only on the offender, but also on others who might be tempted to commit such offences; and (

d) the reformation and rehabilitation of the offender. [ 5 ] The sentence must also take into consideration the following principles: (

a) be commensurate with the gravity of the offence, the previous character of the offender and his or her degree of responsibility; (

b) the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; and

(

c) the court must also respect the principle that an offender should not be deprived of liberty if less restrictive punishments may be appropriate in the circumstances. However, the court must act with restraint in determining its sentence and imposing such punishment or punishments that constitute the minimum necessary intervention to maintain discipline. [ 6 ] In this particular case, the predominant objective of sentencing is deterrence, both general and specific. [ 7 ] The only aggravating factors in this case relate to the duration of the absence and the post-offence conduct of the offender. [ 8 ] The mitigating circumstances are the following: (

a) a plea of guilty that was entered at the first opportunity, and I accept that plea of guilty as an indication of remorse and the full acceptance of responsibility by Aviator Halmich; (

b) there is also the inexperience of the offender. He has been in the Canadian Forces for approximately three years; (

c) the absence of any service record or criminal record; and (

d) the strong support from the chain of command and his good performance at work. [ 9 ] The court accepts that the proposed sentence is the minimal sentence in the circumstances to achieve general deterrence and specific deterrence. It is not contrary to public interest and it would not bring the administration of military justice into disrepute. Therefore, I accept the joint submission. FOR THESE REASONS, THE COURT: [ 10 ] FINDS you guilty of the first charge for absence without leave, contrary to

section 90 of the National Defence Act . [ 11 ] SENTENCES you to a fine in the amount of $200. Counsel: The Director of Military Prosecutions, as represented by Lieutenant-Commander S. Torani Major S.L. Collins, Defence Counsel Services, Counsel for Private R.A. Halmich