R v Gregory, 2011 CM 1005

COURT MARTIAL Citation: R v Gregory, 2011 CM 1005 Date: 20110809 Docket: 201134 Standing Court Martial Canadian Forces Base Borden Borden, Ontario, Canada Between: Her Majesty the Queen - and - Private Joel C. Gregory, Offender Before: Colonel M. Dutil, C.M.J. REASONS FOR SENTENCE (Orally) [ 1 ] Private Gregory pleaded guilty to the offence of Drunkenness under s. 97 of the National Defence Act . The charge alleged that he on or about 10 April 2010, at Canadian Forces Base Borden, was drunk. [ 2 ] The court must determine what is an appropriate, fair, and just sentence.

Counsel for the prosecution and defence have made a joint submission on sentence. They recommend that Private Gregory be sentenced to a severe reprimand and an accompanying fine in the amount of $2,000 payable in equal instalments twice a month on mid-month and end-month pay.

Appellate courts have clearly established that a joint submission ought to be rejected only if it is contrary to the public interest and the sentence would bring the administration of justice into disrepute. [ 3 ] In the context of sentencing an offender under the Code of Service Discipline, a court martial should guide itself with the appropriate sentencing purposes, principles and objectives, including those enunciated in ss. 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: the protection of the public and it includes the interest of the Canadian Forces; the denunciation of the unlawful conduct; the deterrent effect of the punishment, not only on the offender but also upon others who might be tempted to commit such offences; and, the reformation and rehabilitation of the offender.

[ 4 ] The sentence must also take into consideration the following principles: the sentence must be commensurate with the gravity of the offence, the previous character of the offender and his/her degree of responsibility; the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. A 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. In other words, punishments in the form of incarceration should be used as a last resort.

Finally, the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or to the offender. However, the court must act with restraint in determining sentence in imposing such punishment that should be the minimum necessary intervention to maintain discipline. [ 5 ] The facts surrounding the commission of the offence reveal that at the time of the incident, Private Gregory was a student attending at the Canadian Forces School of Electrical and Mechanical Engineering at Canadian Forces Base Borden. He was 19 years old.

On the evening of 10 April 2010 and the early morning of 11 April 2010, several privates and civilians were participating in a party in the single quarters at Canadian Forces Base Borden. Three 19-year old civilian females attended a party in the room of another young private. Everyone was drinking alcohol. [ 6 ] At approximately 2100 hours, Private Gregory joined the party. Despite having rarely consumed alcohol before that evening, he consumed a large quantity of alcohol over a short period of time and became very intoxicated.

Throughout that evening, Private Gregory attempted to kiss and touch the three females in an inappropriate manner. At one point, one of the females had passed out on a bed. She awoke to find Private Gregory stroking her hair. He then took her hand and placed it on his penis while stating, "This is me." She told him he needed to stop. Private Gregory then attempted to kiss her. She pushed him away. As he was leaving he touched the female's breast. By this point, the three females had had enough of Private Gregory's behaviour and asked another private to get Private Gregory to leave.

When the other private attempted to escort Private Gregory out of the room, Private Gregory started swinging at him. The other private punched Private Gregory in the face. Private Gregory was then escorted to his room. [ 7 ] A short time later the military police arrived. Private Gregory was escorted to the hospital due to the injuries sustained from being punched. While at the hospital, Private Gregory attempted to masturbate and begged the medical staff to have sex with him.

Private Gregory was restrained to the gurney to prevent him from masturbating and he was instructed by the military policeman to behave himself. It is agreed by counsel that Private Gregory's bizarre behaviour was completely out of character. He does not remember any of these events. They added that Private Gregory regrets his behaviour and accepts full responsibility for his actions. [ 8 ] The aggravating factors in this case are: a. The circumstances surrounding the commission of the offence.

The offence of drunkenness is not objectively a very serious offence, but the circumstances surrounding it bring it at the higher end of the spectrum for this type of offence. Private Gregory could certainly have been charged and convicted of several other offences for his behaviour that night. This is a matter of prosecutorial discretion for which the court has no control. I am convinced that counsel for the defence has already explained in significant details to Private Gregory how fortunate he is to face only one charge of drunkenness for his impugned conduct. b.

The second aggravating factor is that the incidents took place on a defence establishment in the presence of other young servicepersons and young female civilians. However, the mitigating factors include: a. The plea of guilty at the earliest opportunity and the regrets expressed by Private Gregory for his behaviour and his full acceptance of responsibility. In the context of this case, it is very significant in the assessment of the joint submission on sentence. b. The absence of previous disciplinary or prior criminal record. c. The age of the offender.

Private Gregory is now 20 years old and this incident is out of character. He is still a very young individual that can and should be allowed to contribute to society positively in the immediate future. [ 9 ] The court agrees with counsel that this case would fall within the higher range of sentences imposed for this type of offence.

However, the circumstances of this case are sufficiently serious that this court would have sentenced Private Gregory to more serious punishments if counsel had not jointly recommended the sentence. On the other hand, their joint recommendation is not so off the mark that its adoption by this court martial would be contrary to the public interest or bring the administration of justice into disrepute. The proposed sentence will meet the objectives of denunciation, general and specific deterrence and rehabilitation that must prevail in this case.

One should appreciate that regardless of the outcome, Private Gregory will now have a criminal record that will only be removed if he is granted a pardon in the future. [ 10 ] Excessive drinking may lead to unfortunate and extremely serious consequences for the young persons. That message should be sent loud and clear, especially in the context of several incidents involving alcohol here; as pointed by defence counsel himself. Hopefully this case will serve to denounce that kind of behaviour.

FOR THESE REASONS, THE COURT: [ 11 ] FINDS you guilty of the first charge under s. 97 of the National Defence Act , that is to say, drunkenness. [ 12 ] SENTENCES you to a severe reprimand and a fine in the amount of $2,000 payable bi-monthly in equal instalments of $100, that is on each mid-month and end-month pay, commencing on 15 August 2011. Counsel: Captain R.D. Kerr, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Captain D.M. Hodson Directorate of Defence Counsel Services Counsel for Private J.C. Gregory