The reasons why

Here is a link to the military judge’s sentencing statement in the case of Canadian Captain Semrau.  Obviously it is notable because the practice is for the judge to provide a reasons for sentencing, but secondly is the reliance on United States v. Maynulet and United States v. Horne (LEXIS doesn’t show a “Horne” case, and I could not find a case listed on the ACCA site) for comparison.

I was also informed of two American court martial cases involving the killing of a wounded and unarmed enemy. Both incidents occurred in 2004 in Iraq. In the first court martial, Captain Maynulet was involved in an operation to capture or kill a high-value target. Immediately after the initial engagement with the enemy, Captain Maynulet shot a mortally wounded insurgent because he thought it was the humane thing to do and that it would ease his suffering. Captain Maynulet was charged with assault with intent to commit murder. He pled not guilty and was found guilty of assault with intent of commit voluntary manslaughter. He was sentenced to dismissal from the service. Evidence at sentencing was extremely favourable for the offender.

The second court martial involved Staff Sergeant Horne. Members of his platoon fired upon trucks carrying insurgents. The second truck was set on fire. Staff Sergeant Horne attempted to save the victim who was sitting in the burning truck loaded with explosives. The victim fell to the ground and was severely injured. Staff Sergeant Horne spoke with his officer and with another staff sergeant about putting the Iraqi out of his misery. The officer told him to do it and the other staff sergeant shot the Iraqi three to five times. When Staff Sergeant Horne realized the Iraqi was still alive, he fired one shot into the victim’s head. He did so to put him out of his misery. Staff Sergeant Horne pled guilty to premeditated murder and conspiracy to commit premeditated murder but to took exception to the word "premeditation" and he pled not guilty to solicitation to commit premeditated murder. He was sentenced to confinement for three years, reduction to the rank of private, forfeiture of all pay and allowances and a dishonourable discharge. On appeal, his sentence was reduced to confinement for one year, reduction to the rank of private, forfeiture of all pay and allowances and a bad conduct discharge.

Later the judge says, before going into a sentence comparison with other cases:

While the facts of these two American cases are somewhat similar to the case before this court, one must also examine the charges before the courts. Staff Sergeant Horne pled guilty to murder and to conspiracy to commit murder; Captain Maynulet was found guilty of assault with intent to commit voluntary manslaughter. You have been found guilty of behaving in a disgraceful manner. While the charges are different, I find the facts in the Captain Maynulet case bear a certain degree of similarity to the facts before this court and are of some use in the determination of the sentence.

Other interesting points.

1.  Something is aggravating only if proven beyond reasonable doubt.

I have noted before the increasing attention given to military justice cases by Congress, the media, and special interest groups.

The prosecutor and your defence counsel argued that the sentence should not reflect public opinion but should send a message to the CF and to the Canadian public. While they are correct is saying so, no evidence was presented which would indicate whether public opinion is supportive of a harsh sentence or whether it is supportive of a lenient sentence. In our free and democratic society, any person may form an opinion on any subject and express this opinion freely, subject to certain limitations found in our law. A sentencing judge must execute his or her duty, not by wondering what the public might think of the sentence, but by applying the law to the facts of the case as pre-sented to her or him and thus determine a sentence that is just and appropriate in the circumstances in accordance with the applicable principles of sentencing. This is the only way a sentencing judge may perform his or her duty of administering justice without fear or favour and in a fair, impartial and independent manner.

In paragraphs 33 and 34 the judge comments on an argument in aggravation by the prosecution:

I will say it again: You are to be sentenced for the offence for which you were convicted and not for an offence for which you might have been charged or for an offence for which you were found not guilty.

Just before sentencing the judge had this to say:

I believe this sentence must focus primarily on the denunciation of the conduct of the offender and on general and specific deterrence. I mention specific deterrence because I do not know if you fully understand what you did and if you fully realize the consequences of your actions. I cannot know because you chose not to address the court. It is your right and I do not infer by my comment that it is an aggravating factor or that I hold it against you. I note your silence because it means I do not know how you perceive your actions and their consequences.