B v R [2016] NZHC 2833 (25 November 2016)

Last Updated: 8 December 2016

ORDER PROHIBITING PUBLICATION OF NAME AND IDENTIFYING PARTICULARS (INCLUDING THE NAME OF THE CORPS TO WHICH THEY ARE OR HAVE BEEN ATTACHED) OF THE APPELLANT, AND THE WITNESSES IN THE COURT MARTIAL, PURSUANT TO S 145 ARMED FORCES DISCIPLINE ACT 1971 AND SS 200 AND 202 CRIMINAL PROCEDURE ACT 2011.

ORDER PROHIBITING PUBLICATION OF EVIDENCE AND SUBMISSIONS RELATING TO THE REASONS FOR THE SUPPRESSION ORDERS PURSUANT TO S 145 ARMED FORCES DISCIPLINE ACT 1971

AND S 205 CRIMINAL PROCEDURE ACT 2011.

IN THE COURT MARTIAL APPEAL COURTOF NEW ZEALAND WELLINGTON REGISTRY

CIV 2016-485-740 [2016] NZHC 2833

UNDER	the Court Martial Appeals Act 1953
IN THE MATTER OF	an appeal against sentence
BETWEEN	B Appellant
AND	THE QUEEN Respondent

Hearing:	17 October 2016
Court:	Mallon J Judge D McGregor Judge J Billington QC
Counsel:	S Taylor for the Appellant Captain R L Goguel and Captain G H Davies for the Crown
Judgment:	17 October 2016
Reasons:	25 November 2016

_{JUDGMENT OF THE COURT}

_{A The appeal is allowed.}

B v R [2016] NZHC 2833 [17 October 2016]

B The sentence imposed in the Court Martial is quashed and replaced with a sentence of a reduction in rank, to the rank of lieutenant with three years seniority, and a severe reprimand.

C Order prohibiting publication of the name and identifying particulars (including the name of the corps to which they are or have been attached) of the appellant, and the witnesses in the Court Martial, pursuant to s 145 of the Armed Forces Discipline Act 1971 and ss 200 and 202 Criminal Procedure Act 2011.

D Order prohibiting publication of evidence and submissions relating to the reasons for the suppression orders pursuant to s 145 of the Armed

_{Forces Discipline Act 1971 and s 205 Criminal Procedure Act 2011.}

REASONS OF THE COURT

_{(Given by Mallon J)}

Introduction

[1] The appellant pleaded guilty, before a Court Martial, to a charge of negligently failing to perform a duty and a charge of doing an act likely to prejudice service discipline.¹ He was dismissed from Her Majesty’s Service and received a

severe reprimand.² He appeals against this sentence on the ground that it is

manifestly excessive.

[2] When the hearing concluded we advised we were allowing the appeal. We quashed the sentence and replaced it with a sentence of reduction in rank, to the rank of lieutenant with three years seniority, and a severe reprimand.³ We now set out our

_reasons.

¹ _{Armed Forces Discipline Act 1971, s 73(1)(a) and (c).}

² _{B v R [2016] NZCM 2209.}

³ We gave this decision orally at the hearing, and in writing: B v R [2016] NZHC 2485.

Circumstances of offending

[3] On 19 November 2015 the appellant was attending a military training exercise in the South Island. When he left he was given a pistol for return to the armoury at the Linton Military Camp. He stowed this pistol in his day bag for ease of travel. He returned to the North Island, arriving at the RNZAF base at Ohakea at

5pm. At this time he was given a second pistol to also return to the armoury. The appellant also stowed this pistol in his day bag.

[4] The appellant arrived at Linton at 5.40 pm. He did not return the pistols at that time. At around 6.30 pm, forgetting about the pistols, the appellant put his day bag into the boot of his car and proceeded to drive home. The day bag containing the pistols remained in the boot of his car. At around 2 pm on 24 November 2015 the Regimental Quartermaster contacted the appellant and asked why the pistols had not yet been returned. The appellant immediately drove to the armoury to return the pistols. He arrived there at around 2.20 pm.

[5] The Quartermaster asked the appellant where the pistols had been stowed over the past five days. The appellant said that he had realised he forgot to return the pistols when he arrived home. He said he drove back to Linton, but as the armoury was closed, he stored the pistols in the company server room, and they remained there until 24 November 2015.

[6] On 26 November 2015 the appellant was interviewed under caution. He again said the pistols were stored in the server room from 19 to 24 November 2015. The interview was transcribed and put into a written statement for his signature.

[7] The appellant signed that statement on 27 November 2015. He was then re- interviewed under caution. The appellant explained how he had accessed the server room to store the pistols. He said he had a key to the front door and the three other doors leading to the server room were unlocked. He was then informed that there was an electronic record confirming the locks had been set at 4.43 pm on

19 November 2015 and deactivated at 7.29 am on 20 November 2015. He was asked to explain why the alarm had not gone off. He was unable to offer an explanation.

[8] Immediately after this interview the appellant was interviewed again under caution. This time he admitted his previous story was untrue. He said he had not gone into the server room on 19 November 2015. He said the pistols were stored in the boot of his car from 19 to 24 November 2015.

[9] He appeared before the Court Martial on 23 August 2016. He entered a guilty plea which was accepted by the Court Martial.

The law

[10] The punishments potentially available to the Court Martial, from the most to the least severe, were as follows:⁴

(a) imprisonment;

(b) dismissal from Her Majesty’s Service;

(c) reduction in rank;

(d) forfeiture of seniority; (e) stay of seniority;

(f) a fine;

(g) a severe reprimand; or

(h) a reprimand.

[11] The Court Martial is required to follow sentencing guidelines,⁵ issued by the Armed Forces Discipline Committee.⁶ For present purposes the relevant guidelines include the desirability of consistency of sentencing levels for similar offenders

_{committing similar offences in similar circumstances.}⁷ _{It also includes that the least}

⁴ _{Armed Forces Discipline Act 1971, sch 2.}

5. New Zealand Defence Force Manual of Armed Forces Law (2nd ed, DM 69, Wellington, 2016) Vol 2, Ch 1, Annex B [Sentencing Guidelines].

⁶ _{Armed Forces Discipline Act, s 162.}

⁷ Sentencing Guidelines, above n 5, cl 3(b)(iv).

severe outcome that is appropriate in the circumstances should generally be imposed.⁸

[12] The Guidelines provide that the first step is to arrive at a starting point appropriate to the offending. Aggravating and mitigating factors relating to the offender are then considered.⁹ Once a sentence has been considered under that framework, there are then three military specific considerations which must be taken into account. These are:¹⁰

(a) Bearing in mind the nature of the offending and the circumstances in which it occurred, is it tolerable and realistic for the New Zealand Defence Force (NZDF) to retain the individual’s services. Offending involving a fundamental breach of trust between members of the NZDF may be an example of where dismissal is appropriate.

(b) Bearing in mind the offending, is the person fit to command. This is regarded as particularly relevant if the person holds a position of command. The offending may mean that holding a particular rank is untenable and the person may need to be reduced in rank, possibly to a level where they will not be in a position of command.

(c) What does the offending demonstrate about the individual’s adherence to the NZDF core values of courage, commitment, comradeship and integrity.

[13] The maximum penalty for the charges was two years imprisonment.¹¹

The sentencing

Evidence

[14] The prosecution called evidence from the appellant’s Commanding Officer who provided details of the appellant’s service. The Commanding Officer had

⁸ _{Clause 3(b)(vi).}

⁹ _{Clauses 3 and 4.}

¹⁰ _{Clause 4(c).}

¹¹ Armed Forces Discipline Act 1971, s 73(1)(a) and (c).

known the appellant for eight months. The prosecutor asked him to describe the impact of the offending on their relationship. He said he had no concerns at all about operating with the appellant under normal circumstances. He was, however, concerned that the offending undermined the trust the regiment could place in the appellant under abnormal circumstances. He explained that a retention review takes place whenever someone is convicted by the Court Martial. If he were to be retained he would need to earn or regain the trust of his command team and of the soldiers. He had shown a high level of mental resilience despite the present matter and it did not appear to have affected his ability to operate.

[15] The defence called evidence from the appellant’s Officer Commanding who had known the appellant since 2009. She described the appellant as a competent officer who had demonstrated particular strength in his chosen area of specialisation. The NZDF had invested in his capability and expertise. If the appellant were to be retained, he would need to regain the trust of his subordinates and superiors. It was her view that “[w]hile this may seem insurmountable at present, with drive, enthusiasm, transparency, appropriate direction, remorse and leverage off the NZDF leadership training system and competency framework [the appellant] has the attitude and scope to succeed.”

[16] The defence also submitted a reference from the appellant’s previous commanding officer. He regarded the appellant’s actions as uncharacteristic and as a momentary lapse of judgment which spiralled out of control. He would feel “entirely comfortable having [the appellant] work for him again in any capacity.”

Submissions

[17] The Director of Military Prosecutions submitted the appellant should be dismissed and given a severe reprimand. In support of that submission the Director referred the Court Martial to the following cases:

(a) R v Sandeman:¹² The defendant was required to pass a fitness test.

_{He completed a form stating that he had passed the required fitness}

¹² R v Sandeman [1998] NZCM 2104.

test when he had not. The form recorded the test as having been conducted in Wellington on 12 June 1998 and purported to be signed by Corporal Johnson. No such test had been conducted in Wellington on that date and nor was there a Corporal Johnson. The defendant pleaded guilty to a charge of making a false official document.¹³ He was reduced in rank from Captain to Lieutenant with a seniority of three years.

(b) R v Heller:¹⁴ The defendant was required to pass a fitness test. He completed a form stating that he had passed a fitness test. The form was purportedly signed by a PTI. Subsequent checks found no such fitness test had been conducted and the signature of the PTI was forged. The defendant pleaded guilty to a charge of making a false official document.¹⁵ He was a Major at this time. He was sentenced to a forfeiture of seniority of 17 months and 20 days, a stay of seniority of two years, and a fine of $3,000. In imposing that sentence, the Court Martial had been incorrectly advised that Captain Sandeman had been sentenced to a stay of seniority.

(c) R v Dobson, Thomson & Wright:¹⁶ In this case Private Thomson injured himself when he cut open a thunderflash and lit it with a cigarette lighter. This was contrary to Defence Force Orders. As he did not want to get into trouble, he and two other members of his force agreed that, if asked, they would say the thunderflash had ignited spontaneously. Lance Corporal Wright, the senior office present, informed the officer in charge that the thunderflash had ignited spontaneously. He, Private Thomson and Private Dobson also prepared handwritten statements where they did not identify the cause of the ignition. At a Court of Inquiry which was subsequently convened, all three defendants denied knowing how the thunderflash

_{was ignited. Some weeks later Private Thomson told the truth in a}

¹³ _{Armed Forces Discipline Act, s 55(1)(a).}

¹⁴ _{R v Heller [2003] NZCM 2142.}

¹⁵ _{Armed Forces Discipline Act, s 55(1)(a).}

¹⁶ R v Dobson, Thomson & Wright [2015] NZCM 2201.

signed statement. Private Dobson and Lance Corporal Wright then confirmed what had happened.

Private Thomson pleaded guilty to failing to comply with written orders and making a false statement at a Court of Inquiry.¹⁷ He was sentenced to 31 days detention. Private Dobson pleaded guilty to making a false statement at a Court of Inquiry.¹⁸ He was sentenced to

10 days detention. Lance Corporal Wright pleaded guilty to doing an act likely to prejudice service discipline (relating to his initial response to the officer in charge) and making a false statement at a Court of Inquiry.¹⁹ He was sentenced to a reduction in rank, from Lance Corporal to Private, and to 10 days detention.

[18] The prosecutor submitted the present case was more serious than these three cases. The offending involved an irreparable breach of trust from a senior officer such that it was untenable for the NZDF to retain him.

[19] The appellant’s counsel submitted a starting point below dismissal was appropriate. Sandeman and Heller were both serious cases, involving the signing of false documents. A reduction in rank, which would have severe financial consequences for the appellant, and a reprimand or severe reprimand might be appropriate. Relying on the evidence that had been adduced, counsel submitted that after a suitable period of rehabilitation the appellant would be able to regain the trust of senior and subordinate staff. The appellant’s exemplary record and early guilty plea were mitigating factors entitled to weight.

The sentencing remarks

[20] In sentencing the appellant, the Court Martial noted the desirability of consistency in sentencing. In the civilian jurisdiction there was no tariff case for making false statements. Perverting the course of justice could lead to imprisonment

_{but this was a much more serious offence than that faced by the appellant. As to the}

¹⁷ _{Armed Forces Discipline Act, s 39(a) and 71(1).}

¹⁸ _{Armed Forces Discipline Act, s 71(1).}

¹⁹ Armed Forces Discipline Act, ss 71(1) and 73(1)(a).

three cases in the military jurisdiction put forward by the prosecutor, the Court Martial considered these “to involve a far lower level of culpability and seriousness than the present case”.²⁰

[21] The Court Martial described the aggravating features as follows:²¹

The features of offending that we consider aggravating are the fact that yours was a premeditated lie, there was a persistent and brazen course of lying from when you started your lie to the Quartermaster and subsequently to superior Officers on three separate occasions, even when under caution. It is an aggravating feature that your motive in lying was simply to protect yourself, and we note that you have no compunction in suggesting that there was a failure for doors to be locked, which was a duty of one of your subordinates, when that was not true.

[22] The Court Martial went on to note the appellant had considerable experience, held a position of command and there was no excuse for his dishonest behaviour. Mitigating factors were the appellant’s previous good character and his early guilty plea.

[23] The Court Martial then went on to consider the military specific considerations. As to the first of those, the Court Martial considered the appellant had made a “relatively minor mistake” in leaving the pistols in his car and he ought to have admitted his mistake at the outset. Instead his instinctive response was to lie.

Moreover:²²

It wasn’t a momentary lapse of judgement, you had the opportunity to tell the truth at any stage after that but you chose not to, you continued to lie and to lie again. ... you had plenty of time in the next three days to consider what you had said and to face up to what you had done, and it is that continuation, deliberate continuation of the lie, which has led us to the conclusion that you have acted so contrary to the ethos and values of the Defence Force that it is not tolerable for you to remain in the Defence Force. It is your lack of judgement, it is your lack of integrity, your loss of the trust of your superiors and the soldiers who are under you.

We also felt that the core values of the NZDF include courage, and that includes moral courage, the courage to do the right thing, and you have failed that test. You have proved yourself to be someone who cannot be trusted or cannot be relied on to tell the truth. Trust is fundamental to

²⁰ _{B v R, above n 2, at 57.}

²¹ At 57.

service in the Armed Forces and you have committed a fundamental breach of trust.

[24] As to the second military specific consideration, the Court Martial said:²³

Given your patent lack of integrity, the Court is driven to conclude that you are not to be trusted in a position of command. You have shown that you are willing to deceive your superiors and to act in your own interest to the detriment of your subordinates.

[25] The Court Martial concluded that dismissal from Her Majesty’s Service was necessary. This sentence could not be reduced because of the appellant’s early guilty plea. Recognising that, the Court Martial declined to impose a fine. However it considered a severe reprimand should also be imposed.

The appeal

The submissions

[26] The appellant submits the sentence imposed is manifestly excessive. Dismissal should be reserved for the most serious cases where there is no other less severe appropriate alternative. A reduction in rank would have significant financial consequences for the appellant and a severe reprimand is a significant punishment because it is a dishonourable stain on an otherwise exemplary career. The appellant’s offending was no more serious than Sandeman and Heller and, as it happens, Sandeman was later promoted and remained in the NZ Army for some years, and was released honourably with the rank of Major. The evidence at the hearing supported the prospect of the appellant’s successful rehabilitation and retention in the NZDF.

[27] The respondent submits the Court Martial took into account the relevant matters and its decision was open to it. A reduction in rank and a severe reprimand would provide insufficient denunciation and general deterrence. Further, the Court Martial having reached the view that the appellant’s breach of trust and lack of integrity made it intolerable for the appellant to remain in the NZDF, dismissal was the only appropriate sentence available to the Court Martial.

Our assessment

[28] We accept the appellant’s submissions. We note at the outset that the maximum penalty for the charges was two years imprisonment. While serious, these were not charges at the most serious end. Offences under the Armed Forces Discipline Act carry maximum penalties ranging from life imprisonment down to three months imprisonment. Nor was the offending at the most serious end of offending covered by those charges.

[29] The Court Martial correctly identified the aggravating features of the offending. However, in our view, the Court Martial placed too much weight on the fact the appellant’s instinct was to lie to cover up a relatively minor mistake. While that instinct is not a commendable one, it is a not unusual first response when someone is confronted with having made a mistake. It is arguably less serious to instinctively lie about something relatively minor than to seek to cover up something important. One way of looking at this, is that the initial breach of the appellant’s responsibilities in returning the pistol was aggravated by his lies. The seriousness of the lie bears some relationship to the seriousness of the conduct about which the lie is made.

[30] In our view the Court Martial also placed too much weight on the fact the appellant continued to lie when formally questioned. We consider the appellant’s former commanding officer to have correctly assessed the situation as an initial lie spiralling out of control. It was an aggravating feature that the appellant had time to reflect over night, and nevertheless signed his statement and repeated his lie. However he rectified that immediately when confronted with the difficulty of his account. He also entered an early guilty plea.

[31] In these circumstances, we disagree with the Court Martial that the three cases referred to by the prosecutor involved a far lower level of culpability and seriousness than the appellant’s offending. In our view the conduct in Sandeman and Heller was in some ways more serious. That is because it involved a greater degree of premeditation (it did not arise out of an instinctive response to being confronted

with a mistake) and it involved forging a signature on a NZDF record.²⁴ In our view the conduct in Dobson, Thomas and Wright was also considerably more serious than the present offending. There it involved lying under oath at a Court of Inquiry whereas the present offending involved lying in a voluntary interview during an initial investigation.²⁵

[32] Lastly, we consider the Court Martial erred in its conclusion that the appellant’s conduct involved such a fundamental breach of trust and lack of integrity that it would be intolerable for him to remain in Her Majesty’s Service. In our view the Court Martial’s conclusion about this followed from its error about the gravity of the offending. The evidence from senior officers who knew the appellant was that this offending was out of character and he had the ability to re-earn the trust of his superiors and subordinates. His officer commanding recognised the effort which would be required, but also that the NZDF had systems which would assist the appellant to do this and the appellant had the personal characteristics to succeed. Notwithstanding this offending, his former commanding officer said he would work with him under any situation. We consider these views are appropriately proportionate to the breach of trust and integrity which arose. In our view the military specific considerations did not require his dismissal and dismissal was an overly stern punitive response to the offending.

[33] In our view the least restrictive appropriate sentence is a reduction of rank, to the rank of lieutenant with three years seniority, and a severe reprimand. While that is that same sentence as that in Sandeman which we regard as arguably more serious, that occurred some years ago. The NZDF has since put in place its framework of army leadership which provides formal notice of expectations. We note that the reduction in rank carries with it financial consequences for the appellant of around

$8,500 a year. This is significant in light of his personal circumstances. That

_{reduction in rank and the severe reprimand denounces his conduct and will meet}

²⁴ The maximum penalty for forgery in the civilian jurisdiction is 10 years imprisonment if the document is forged with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit or valuable consideration, or three years imprisonment otherwise: Crimes Act 1961, ss 251(2) and (2).

²⁵ The maximum penalty for perverting the course of justice in the civilian jurisdiction is seven years imprisonment: Crimes Act 1961, s 116. The maximum penalty for giving a false statement or declaration is three years imprisonment: Crimes Act, s 111.

general deterrence aims. The appellant’s exemplary record, his early guilty plea and

his remorse are such that nothing more is required for individual deterrence.

Suppression orders

[34] The suppression orders set out in the results section of this judgment at C and D above were put in place in the Court Martial. The Court Martial heard evidence in support of those orders. Having examined that evidence we consider it is appropriate to continue those orders.