R v Baker, 2013 CM 1006

COURT MARTIAL Citation: R v Baker , 2013 CM 1006 Date: 20130531 Docket: 201342 Standing Court Martial Canadian Forces Base Esquimalt British Columbia, Canada Between: Her Majesty the Queen - and - Petty Officer 1st Class S.A.W. Baker, Offender Before: Colonel M. Dutil, C.M.J. REASONS FOR SENTENCE (Orally) [ 1 ] Petty Officer 1st Class Baker admitted his guilt to two charges laid under

section 125 of the National Defence Act and

section 129 of the National Defence Act . The particulars of these charges read as follows: a. First charge:

section 125 of the National Defence Act , negligently made false entries in documents made by him that were required for official purposes. Particulars: In that he, between 21 August 2011 and 14 October 2011, at or near Vancouver, British Columbia negligently made false entries on travel claim documents indicating that he had incurred costs for fuel for his privately owned motor vehicle while on temporary duty knowing that he had, in fact, purchased fuel for his vehicle while on that temporary duty using a DND fuel credit card. b.

Second charge: 129 of the National Defence Act , conduct to the prejudice of good order and discipline. Particulars: In that he, between 25 April 2011 and 13 October 2011, at or near West Vancouver, Victoria, Mill Bay and Duncan, British Columbia, used a DND fuel card to purchase fuel for his privately owned motor vehicle contrary to the National Defence Transportation Manual (A-LM-158- 005/AG-001).

[ 2 ] The court must now determine and pronounce a sentence that is considered appropriate, fair, and just in the circumstances and that would also maintain discipline. Counsel for the prosecution and defence have made a joint submission this morning on sentence.

They recommend that Petty Officer 1st Class Baker be sentenced to a reprimand and fine in the amount of $1,000 that would be payable at a rate of $150 per month for six months, and the last final payment of $100. [ 3 ] They submit that it would be fit, in the range of sentences for similar cases, and that it meets the objectives of sentencing that include general deterrence, specific deterrence and rehabilitation. [ 4 ] In the context of sentencing an offender under the Code of Service Discipline, the Court Martial Appeal Court has expressly stated that the court martial should guide itself with the appropriate sentencing purposes, principles and objectives, including those enunciated in sections 718.1 and 718.2 of the Criminal Code .

The fundamental purpose of sentencing at court 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: protection of the public, including the Canadian Forces; the denunciation of the unlawful conduct; general deterrence, specific deterrence, to name a few. As I said, counsel here are of the view that general deterrence is the main objective, followed by specific deterrence and rehabilitation. [ 5 ] We cannot forget that the sentence must also apply some principles.

It has to be commensurate with the gravity of the offence, the previous character of the offender and his degree of responsibility. The sentence also has to be similar to those sentences imposed on similar offenders for offences committed in similar circumstances. Finally, the sentence will be increased or reduced with regard to any aggravating or mitigating factors that relate to the offence and to the offender. [ 6 ] The facts surrounding the commission of the offences here are the following.

From July 2008 to November 2011, as he was Petty Officer 2nd Class, Petty Officer 1st Class Baker was employed as the facility manager at HMCS DISCOVERY, a naval Reserve unit in Vancouver. Petty Officer 1st Class Baker was posted to the DISCOVERY on imposed restriction. In his function as the facility manager on the DISCOVERY, Petty Officer 1st Class Baker also acted as the unit's transportation and maintenance NCO. As such, he was responsible for the management of the unit’s fleet of vehicles.

Among other things, that gave him access to the unit’s Department of National Defence fuel credit cards for the unit. [ 7 ] Those credit cards are provided for the purchase of fuel and related goods for DND vehicles from commercial facilities. They are issued in the name of the Government of Canada, and charges against these credit cards are paid by the Crown.

These DND fuel credit cards are each issued for purchases for one specific CF vehicle, and intended to be used only for fuel and related purchases for that one specific vehicle. [ 8 ] In the spring of 2011, Petty Officer 1st Class Baker began carrying one of these DND fuel credit cards from his unit in his wallet.

As a result both of his training as a CF driver, and his employment as the facility manager on the DISCOVERY, he was made aware of and had opportunity to become acquainted with the regulations and directives governing CF vehicle operators, as well as those for CF members whose duties included responsibilities for vehicle and fleet management. These regulations and directives include, among others, the National Defence Transportation Manual referred to in the particulars of the second charge. [ 9 ] The Transportation Manual contains specific direction on the use of DND fuel credit cards.

This direction is contained in a

section entitled, "Transportation Directive 337 – Fuel Card Guidelines," and includes, at paragraph 1, a provision that states the following: "Fuel Cards are Government acquisition cards and as such they are to be used for authorized Government purchases. They are to be used to purchase fuel for MSE vehicles. They are not to be used to purchase fuel for a Privately Owned Motor Vehicle (POMV) “on duty” vehicle." [ 10 ] While employed on the DISCOVERY, Petty Officer 1st Class Baker was authorized to make a number of temporary duty trips to CFB Esquimalt on Vancouver Island.

These trips were authorized to allow him to carry out the DISCOVERY's business, and also to allow him to complete professional development and certification training for himself, which he could only complete at here in Esquimalt. Between the spring and fall of 2011, he was then required to make several trips to Vancouver Island, often on short notice. In a number of cases, Petty Officer 1st Class Baker submitted, or requested the unit chief clerk to prepare travel claims for these trips in

groups, and some time after he had completed the TD travel itself. [ 11 ] Between 4 August 2011 and 13 October 2011 Petty Officer 1st Class Baker made five TD trips from HMCS DISCOVERY to CFB Esquimalt and return that are of significance in this case. [ 12 ] For each of the TD trips, the offender was authorized to use his privately-owned motor vehicle for transportation while on temporary duty. [ 13 ] During each of the TD trips in question, on six separate occasions, Petty Officer 1st Class Baker used the DND fuel credit card that he was holding to fill his motor vehicle with fuel.

Two of these instances were in West Vancouver, two were in Victoria, and two were in Duncan, British Columbia. [ 14 ] Between 21 August 2011 and 14 October 2011, when at his Reserve unit in Vancouver, he submitted either claim travel worksheets or travel claims for each of the TD trips. Those documents were required for the official purpose of seeking and receiving reimbursement for duty travel expenses. He was required to ensure that the details of what he submitted in those documents were complete and accurate.

This included the duty to ensure that he was not claiming reimbursement for items that had been previously claimed, as well as the duty to ensure that he only sought reimbursement for expenses that he had actually incurred or was otherwise entitled to. [ 15 ] In the claim documents related to four of the five TD trips, the offender indicated that he had travelled by POMV; that is, his own vehicle, and sought reimbursement by way of payment of the private motor vehicle high rate.

As he had used the unit fuel credit card to pay for his fuel costs on those TD trips, he had not incurred those costs and was not entitled to reimbursement of the PMC high rate. [ 16 ] On the other TD trip Petty Officer 1st Class Baker specifically annotated his claim “no mileage,” and so did not claim and was not paid that high rate of mileage.

No such annotation was included in the four other claim documents. [ 17 ] When he prepared or submitted the four other sets of claim documents, Petty Officer 1st Class Baker failed completely to record or maintain an accurate account of what expenses he had or had not incurred while on the TD trips. He also failed to accurately reflect his proper entitlements in the claim documents.

As a result of these failures, he made false entries in the claim documents that indicated that he had incurred costs to purchase fuel for his private motor vehicle when he had not. [ 18 ] That misuse of the unit fuel credit card was discovered when his unit chief clerk was reviewing receipts and records for the card’s use, in order to certify the expenditures as proper.

Three of those claims for PMC high rate submitted by the offender were not paid once these discrepancies were discovered and investigated. [ 19 ] In addition to the six incidents in which Petty Officer 1st Class Baker used the fuel credit card during the TD trips, there were two other occasions when he used the unit fuel credit card to purchase fuel for his private motor vehicle. On those two occasions, no travel claims were raised or submitted by him.

One of these instances occurred in Duncan, and the other in Mill Bay, British Columbia. [ 20 ] All eight of the times when Petty Officer 1st Class Baker used the DND fuel credit card to purchase fuel for his own vehicle occurred between April 2011 and October 2011.

The total cost to the Crown for the fuel that Petty Officer 1st Class Baker purchased for his personal vehicle was close to $500. [ 21 ] As the initial investigation into the matter continued, he voluntarily submitted a memorandum to his Executive Officer, admitting that he had misused the unit fuel credit card, and acknowledging that he had failed to follow proper procedures.

With this memorandum in late November 2011, he provided a cheque made payable to the Receiver General for Canada, in the amount of $494.87. [ 22 ] His actions were investigated by the military police and when the staff at HMCS DISCOVERY received the investigation report, no action was taken, either, disciplinary or administrative. However, following his posting to HMCS ALGONGUIN, his current unit, and becoming aware of the investigation, Petty Officer 1st Class Baker was charged with a number of offences in January 2013.

This matter was referred to the Director of Military Prosecutions in February 2013, and on 25 April 2013 those charges were preferred for trial by court martial. [ 23 ] This court martial was convened yesterday and that brings us here today. So those are the circumstances surrounding the commission of the offences in this particular case. [ 24 ] The aggravating and mitigating factors here are straightforward. These offences, firstly, are objectively serious.

Section 125 of the National Defence Act provides for a maximum punishment of a maximum three years of imprisonment, and conviction under

section 129 can attract dismissal with disgrace from Her Majesty's service. It is worth to note, though, and it was mentioned by defence counsel that in this case, the prosecution alleged a negligence as opposed to wilful, and that, of course, is indicative of the less objectively seriousness of this offence in the context. And also we have to accept the fact that these offences, at least with regard to the seriousness, the circumstances in which they were committed, are not the most serious circumstances that we have seen for this type of offence.

So that's at the lower end of the spectrum for those offences. [ 25 ] As a second aggravating factor, we cannot ignore the degree of experience and general knowledge; based on that experience and based on the evidence as well of the offender with regard to the applicable policies and procedures with regard to the handling of DND fuel credit cards and the rules that govern the use of public funds in this particular case. So that's another aggravating factor. [ 26 ] The third one is also related to the repetition that was mentioned by the prosecution in the continuing of the commission of this offence.

The use of the card occurred on eight occasions and there were four or five claims related to that. That completes the aggravating factors. [ 27 ] There are very important mitigating factors in this case. The plea of guilty to those charges and the willingness to proceed in a very expeditious manner in this case is, for the court, one of the best examples that we can see, when someone tries to argue or submit that he accepts full responsibility for the offences and expresses remorse. This is a perfect example of this.

So I have no doubt that Petty Officer 1st Class Baker truly accepts responsibility here and that he is remorseful for his actions, which, as it was mentioned by the prosecutor, are a serious lack of judgement, but they are otherwise, seems to be, out of character in light of this fine career so far. [ 28 ] And that brings us to the second mitigating factor in this case, which is the exemplary service of Petty Officer 1st Class Baker over the last 21 years. In addition, there's no previous discipline or criminal record. So basically this is a point on the radar screen.

It is unfortunate; it is a lack of judgement, but there is a serious price to pay for that, and that is the outcome of this trial. [ 29 ] Finally, as a mitigating factor here, we have to of course look at the family situation and the financial situation of the offender. He is married and has one dependant child, a teenager, and of course, in the context, this is a mitigating factor. And finally, I have to say some words about the delay. It is true that this matter was uncovered as a result of a posting to a new unit.

But the facts tell us also that the transfer occurred in 2011; therefore, it is anywhere between a year or two years where this person had this matter over his head, so I accept your remarks, Mr Defence Counsel, that it played in reviewing your joint recommendation, and I note it. [ 30 ] I agree with counsel that this case fits well within the range of sentences for these types of offences and I also note that it's very important to mention that we are not dealing with a wilful act but we are dealing with negligence here, which is less serious in the context for this type of offence. [ 31 ] I agree with counsel that this sentence is not contrary to the public interest and that it will not bring the administration of military justice into disrepute.

It is adequate in my opinion to promote the objectives sought by counsel as they mentioned this morning that are general deterrence, specific deterrence and rehabilitation. I know also that there is a stigma that is associated with a conviction and that you will have to have that stigma or wear that stigma for some time and you will have to make sure that it doesn't happen again. [ 32 ] It is unfortunate, after 21 years with an unblemished record, that an incident like that occurs as a result of negligence. Not only should you have known better, but the court is convinced that you knew better.

FOR THESE REASONS, THE COURT:

[ 33 ] FINDS Petty Officer 1st Class Baker guilty of the first charge under

section 125 of the National Defence Act and guilty of the second charge under 129 of the National Defence Act. [ 34 ] SENTENCES you to a reprimand and a fine in the amount of $1,000 payable in six equal and consecutive monthly instalments of $150 each with a last payment of $100. Should you be released from the Canadian Forces prior to the full payment of the fine, the totality of the amount will be payable prior to your effective date of release. Counsel: Lieutenant-Colonel S.D. Richards, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Major D. Berntsen, Directorate of Defence Counsel Services Counsel for Petty Officer 1st Class S.A.W. Baker