Wills v R [2015] NZHC 913 (4 May 2015)

Last Updated: 7 May 2015

ORDER PROHIBITING PUBLICATION OF NAMES AND IDENTIFYING PARTICULARS OF COMPLAINANTS "A" AND "B" PURSUANT TO S 145

OF THE ARMED FORCES DISCIPLINE ACT 1971 AND S 202 OF THE CRIMINAL PROCEDURE ACT 2011

IN THE COURT MARTIAL APPEAL COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-11178 [2015] NZHC 913

BETWEEN	DARRON ANTONY OWEN WILLS Appellant
AND	THE QUEEN Defendant

Hearing:	29 April 2015
Court:	Kós J Judge J Billington QC Judge D McGregor
-	P L Murray for Appellant Maj B G S Bateman with Lt C L Berthold for Respondent
Judgment:	4 May 2015

JUDGMENT OF THE COURT (Appeal against sentence)

[1] Staff Sergeant Wills solicited sexualised photographic images from two female subordinates under false pretences. He pleaded guilty to two charges of doing an act likely to prejudice service discipline, contrary to s 73(1)(a) of the Armed Forces Discipline Act 1971, and one charge of doing an act likely to prejudice service discipline or bring discredit on the service, contrary to s 73(1)(a) or (b) of the Act. At a Court Martial he was dismissed from service.

_{[2] Was this sentence manifestly excessive?}

WILLS v THE QUEEN [2015] NZHC 913 [4 May 2015]

Facts

[3] SSgt Wills has been a regular force member of the New Zealand Army for 32 years. He is of hitherto good character. He has no civilian convictions or reportable military convictions. Immediately prior to the offending, which took place in the second half of 2013, his postings were to the Defence Personnel Unit, Upper Hutt and, from early 2013, to Linton Camp. The offending occurred during his Linton Camp posting.

[4] In July 2013 SSgt Wills solicited from Corporal A photographs of her in sportswear and pantyhose, under false pretences. At that time, Cpl A was a territorial force corporal, but employed by the New Zealand Defence Force in a civilian capacity. SSgt Wills approached Cpl A indirectly. He pretended to be “Paul Chalmers”, an invented alias and supposedly a freelance professional photographer. “Chalmers”’ email said that SSgt Wills had told him that she might be interested in “sports shoots”. After inquiry of SSgt Wills, Cpl A sent a picture of herself to “Chalmers”. Subsequently, “Chalmers” sought a picture of Cpl A wearing pantyhose. This picture does not appear to have been supplied.

[5] Subsequently, and over a three day period in October 2013, SSgt Wills approached Cpl B. At that time Cpl B was a corporal serving in the same chain of command as SSgt Wills at Linton Camp. In this instance, SSgt Wills approached Cpl B directly, by text message, indicating that he had a “mate” who was a freelance photographer who took fashion photographs. Then, as “Chalmers”, SSgt Wills emailed Cpl B soliciting a “tease video” of her wearing a mask and lingerie, and performing actions calculated to induce masturbation on the part of the viewer. A number of emails were sent to this same general effect over the course of three days. The amount offered (for a ten minute video) was increased from $1,000 to $2,000 if Cpl B would herself masturbate in the video. Cpl B declined the request. At the same time SSgt Wills, again as “Chalmers”, also solicited a freelance modelling session wearing sports clothing, or perhaps a thong. Again Cpl B rejected that invitation.

[6] Five points need to be noted beyond these bare facts.

[7] The first is the vulnerability of the victims. Cpl A had known SSgt Wills and his family for more than ten years, and trusted him. He was aware she was having financial difficulties. Cpl B was having serious personal issues at the time, and she had confided these details to SSgt Wills. She too was struggling financially at the time of his approach. We note that SSgt Wills attempted to mitigate his actions on the basis that his actions were calculated to boost the confidence of the two women. We regard that explanation as utterly specious. In fact it had exactly the opposite effect and, given that “Chalmers” was a fiction, can only ever have had that outcome. The inevitable inference is that SSgt Wills was, by a ruse, soliciting sexualised images of persons he knew for his own gratification. Maj Bateman accepts that no more grave inference should be drawn than that. But it is quite grave enough as it is.

[8] Secondly, it is important to note that both women stood inferior to SSgt Wills in the overall chain of command. Cpl A was not in a direct command relationship with him, but the authority of rank is general rather than particular. In the case of Cpl B, the position is somewhat less clear. They appear to have operated in the same chain of command, although there was no evidence of a direct reporting relationship. The observation as to general authority, however, remains.

[9] Thirdly, by reason of the first two considerations, vulnerability and rank, SSgt Wills stood in a relationship of trust with the two victims. By reason of long association and current circumstance, both relied upon him as their mentor. Both reposed considerable confidence in him. It was confidence betrayed.

[10] Fourthly, there is the victim impact. In the case of Cpl A, she plainly feels her confidence in SSgt Wills was abused, and her ability to entrust friends with her problems has been significantly impaired. Similar observations are made by Cpl B. She felt “hurt, betrayed, enraged, concerned, stupid and belittled”. She too now questions the people she trusted as her friends, and has become more distant from them. Despite suppression orders, colleagues have identified her as one of the complainants. She has undergone counselling and that has been beneficial. To SSgt Wills’ credit, he has paid for that counselling voluntarily.

[11] The fifth and final thing we note at this point is that this was repeated offending. The initial approach to Cpl A occurred, and was concluded, in July 2013. The communications with Cpl B occurred over a three day period in October 2013. The offending was repeated, and it was premeditated.

Sentencing decision

[12] The Court Martial comprised a District Court Judge, a major, a flight lieutenant and a warrant officer (class one). Its sentencing decision recorded, first, the facts (which we have summarised already), and then the relevant sentencing principles. No criticism is made of these parts of the decision.

[13] The Court Martial then turned to the aggravating factors applying to the offending, including the misuse of a mentorship relationship which had become one of trust, and the fact that the victims were vulnerable emotionally at the time that SSgt Wills took advantage of them. The decision noted that the offending was premeditated, and repeated. It was not opportunistic, but was planned. It caused substantial emotional harm to both victims.

[14] No mitigating factors relating to the offending were identified.

[15] The Court Martial then turned to comparative precedent decisions. We will discuss those ourselves later in this decision.¹

[16] The decision then turned to the question of whether it was tolerable and realistic for the Defence Force to retain SSgt Wills’ service. The Court Martial concluded that such a fundamental breach of trust between a senior non- commissioned officer and junior non-commissioned officers was involved that members of his unit could not and should not be expected to work or live with him again. His behaviour was so contrary to the ethos and values of the Defence Force that it would be intolerable for him to remain in service. The Court Martial concluded, at this point, “dismissal from Her Majesty’s Service is justified in this

_case”.

¹ At [22] and [32].

[17] The Court then went on to consider the appropriate starting sentence, and it was satisfied that a starting point of dismissal adequately reflected SSgt Wills’ culpability.

[18] Personal aggravating and mitigating factors were then considered. No personal aggravating factors existed. Personal mitigating factors noted and considered by the Court included remorse, the making of a public apology, the offer to participate in restorative justice, SSgt Wills’ 32 years of otherwise unblemished service, the separation from his wife that had resulted from the offending, the death of SSgt Wills’ father in 2012, the year before the offending occurred, and certain physical health issues that SSgt Wills faced. The final mitigating factor noted was his early plea of guilty on arraignment.

[19] The sentence imposed, ultimately, was dismissal from service, and $2,348 in reparation orders, the major part of which was payable to Cpl B. Forfeiture of SSgt Wills’ long service good conduct medal and clasp was an automatic consequence of dismissal from service.

Appeal

[20] SSgt Wills’ appeal takes, essentially, two points.

[21] First, that the Court erred in the way it arrived at its sentencing starting point. As Mr Murray put it, the end sentence of dismissal was deemed appropriate before the starting point was enunciated. The Court Martial then went backwards in determining that the dismissal was the appropriate starting point. Personal mitigating factors were not taken into account in determining whether dismissal was the appropriate starting point or not. Mr Murray relied on the following passage

from the decision of the Court of Appeal in R v Taueki:²

[44] Once a starting point has been determined in accordance with the above criteria, it is then necessary to determine whether the aggravating or mitigating factors relating to the offender’s particular personal circumstances require that the actual sentence should be higher or lower than the starting point. This involves consideration of the factors mentioned in ss 8 and 9 of the Sentencing Act which relate to the offender, as opposed to the offending,

² R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 at [44].

as well as any other matters relevant to the personal circumstances of the offender. The most significant mitigating factor will normally be an early guilty plea, for which a substantial reduction from the starting point will normally be justified. Other examples are given in Mako at [62] and [65]- [66], but the list is not exhaustive.

[22] Secondly, that the sentence was manifestly excessive. In particular the Court Martial was wrong to describe the offending as sophisticated. Rather it was ill- conceived and crude in execution. Although repeated, it was impulsive. New evidence, if accepted by the Court, was indicative of mental health difficulties, including low mood, anxiety and depression. The underlying conduct in this case was not criminal. It was therefore different from the situation faced by the Court in

R v Simpson³ and R v McKay.⁴ Each of those cases involved covert filming of

female service personnel in toilets or showers. The case was more akin to R v Lawrence,⁵ where a Lieutenant Commander engaged in consensual threesome sexual activity with a female ordinary seaman and a master at arms. In McKay and Simpson the offenders were dismissed the service. In Lawrence the offender was reduced in rank by one degree, and ordered to pay compensation for emotional harm.

Application to adduce further evidence

[23] SSgt Wills applies to adduce an affidavit from Dr Barry-Walsh, a consultant forensic psychiatrist in Wellington. He saw and assessed SSgt Wills on 26 March

2015, and has provided a report to the Court. Its receipt was opposed by the respondent.

[24] The evidence of Dr Barry-Walsh is plainly credible. It is only marginally fresh, but the delay in obtaining it has been explained satisfactorily. We consider that to exclude the evidence would pose the risk of a miscarriage of justice. It is therefore admitted.⁶ The essential import of that evidence has been described in [22]

_above.

³ _{R v Simpson (2013) NZCM 2191.}

⁴ _{R v McKay (2013) NZCM 2194.}

⁵ _{R v Lawrence (2001) 1 NZCMAR 484.}

⁶ Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; Pora v R [2015] UKPC 9 at [39].

First ground of appeal: approach to sentencing erroneous?

[25] Maj Bateman was constrained to concede that the Court Martial’s sentencing decision departed from the approach approved by the Court of Appeal in R v Taueki, and the Armed Forces Disciplinary Committee sentencing guidelines made pursuant to s 162 of the Act.

[26] That concession was entirely proper. As the sentencing guidelines make clear, aggravating and mitigating features relating to the offender must be considered before concluding that dismissal is a necessary consequence of proven or admitted offending. Personal circumstances will often be material to that determination. The departure from principle here was unfortunate.

[27] Putting aside their statutory basis, we consider that the sentencing guidelines plainly set out the correct approach in a case of this kind. They depart from civilian sentencing in postponing determination of the sentence starting point until (1) features personal to the offender, and (2) necessity for dismissal, have been analysed. In civilian sentencing the starting point is determined based on features relevant to the offending only, and not the offender. Furthermore, dismissal from service or

employment forms no part of civilian sentencing.⁷ In a military context it is right

that necessity for dismissal be considered only after consideration of personal aggravating and mitigating factors, and before setting a starting point. The consequence of this approach is that there may be little basis to alter the starting point, other than entry of an early guilty plea. But this case demonstrates why that is the correct approach. First, dismissal should be considered only after personal mitigating (and aggravating) factors have been assessed. Secondly, once dismissal of SSgt Wills was found inevitable, little further sentence was appropriate.

[28] The error in the Court Martial’s approach was not to take SSgt Wills’ personal factors into account before concluding that dismissal was inevitable. But that error is not conclusive in favour of allowing the appeal. The critical question in this appeal falls under the next ground of appeal. That is, whether the sentencing

_{dismissal was manifestly excessive.}

7. Of course, dismissal may be an indirect consequence of sentencing and therefore potentially taken into account among personal mitigating factors.

Second ground of appeal: sentence manifestly excessive?

[29] This case involved repeated abuse of trust against vulnerable subordinate non-commissioned officers, for the purposes of SSgt Wills’ gratification. This Appeal Court considers dismissal from service to be a necessary and inevitable response. It follows that the sentence comprising dismissal, together with reparation orders in the sum of $2,348, cannot be manifestly excessive. Mr Murray did not suggest that the reparation orders were other than entirely appropriate.

[30] There are three reasons for our reaching this conclusion.

[31] First, we find it would not be tolerable for the Defence Force to retain the services of SSgt Wills. Repeated acts of deception against subordinate non- commissioned officers who were vulnerable to his approach, involving the solicitation of sexualised images, is so contrary to the ethos and values of the Defence Force that it would be intolerable for SSgt Wills to remain in service. We bear in mind the additional evidence of Dr Barry-Walsh, as far as it goes. Had this been a single impulsive incident, beginning and ending in July 2013 with Cpl A, we might perhaps have reached a different view. Its repetition, and substantial enlargement, in the case of Cpl B a few months later changes the picture markedly. SSgt Wills’ disregard for appropriate honest social contact with subordinate non- commissioned officers, and abuse of a mentoring relationship developed with such personnel, means members of the Armed Forces could not place further trust and confidence in him, and should not be expected to work with him. That his actions purported to be mitigated under the guise of helping his victims makes the matter worse.

[32] Secondly, in reach this conclusion we bear in mind the three precedent decisions referred to earlier: Lawrence, Simpson and McKay. Lawrence we distinguish at once. The activity in that case, while involving sexual misconduct with subordinates, was consensual. That was conceded by the prosecution in that case. In those circumstances the retention of now-Lieutenant Lawrence in service was conceivable, and permitted. The facts of this case are, however, much more like those in McKay and Simpson. Those cases involved the deceptive and covert

obtaining of video footage of female service personnel showering, dressing, undressing or toileting. Although the activity in this case was not covert, it was procured by means of deception: the Bunburyesque invention of the photographer “Chalmers”. That brings this case far closer to McKay and Simpson. In those cases dismissal from the service was ordered. Dismissal in this case is, therefore, in line with precedent.

[33] Thirdly, we do not consider it would be realistic for SSgt Wills to remain in service at a reduced rank. Mr Murray put to us that the appropriate penalty in this case would have been a reduction in rank of one degree, to the level of sergeant. We do not accept that would be an adequate denunciation of the conduct in this case. At the very least we consider a reduction in rank of two degrees, to corporal, would be required. But that brings its own difficulties. At 50, Corporal Wills would be one of the oldest of his cohort, if not the oldest. He would be rejoining the very rank he had effectively offended against. We cannot see reduction in rank being a realistic response, excusing the need for dismissal.

[34] We take due account of the mitigating considerations noted at [18] and [22]. But the sentence imposed was not excessive. Rather, it was inevitable.

Result

[35] Appeal against sentence dismissed.

For the Court:

Stephen Kós J

Solicitors:

P L Murray, Palmerston North for Appellant

Director, Military Prosecutions, NZDF, Wellington for Respondent