Manning v The Queen - [2015] NZHC 936

IN THE COURT MARTIAL APPEAL COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2015-485-000120 [2015] NZHC 936

UNDER The Court Martial Appeals Act 1953

BETWEEN

PHILLIP JOHN MANNING Appellant

AND

THE QUEEN Respondent

Hearing: 30 April 2015

Court:

Collins J, Judge Billington QC, Judge McGregor

Counsel:

P L Murray for Appellant
Lieutenant Colonel M K Hill and Captain M J McGrath for
Respondent

Judgment:

30 April 2015

Reasons:

6 May 2015

JUDGMENT OF THE COURT

Introduction

[1] On 30 April 2015 we allowed an appeal brought by Gunner1 Manning from a sentence imposed by the Court Martial of New Zealand (Court Martial).

[2] The Court Martial had sentenced Gunner Manning to 15 months’

imprisonment and dismissed him from Her Majesty’s Service in relation to seven

charges of doing an act likely to prejudice service discipline2 and one charge of

1 Formerly Bombardier.
2 Armed Forces Discipline Act 1971, s 73(1)(a). Maximum penalty is two years’ imprisonment.

MANNING v THE QUEEN [2015] NZHC 936 [30 April 2015]

indecent assault.3 Gunner Manning was also demoted two ranks from Bombardier to

Gunner.

[3] When we allowed Gunner Manning’s appeal we quashed the sentence imposed by the Court Martial and substituted it with a sentence of three months’ detention following which Gunner Manning is dismissed from Her Majesty’s Service.4 Gunner Manning’s reduction in rank from Bombardier remains in force pursuant to s 82(3) of the Armed Forces Discipline Act 1971 (the Act).

[4] We allowed the appeal against sentence because we concluded the sentence imposed by the Court Martial was, in the circumstances of this case, manifestly excessive.

[5] In reaching our conclusion we were assisted by professional submissions from Lieutenant Colonel Hill and Captain McGrath. They applied their independent prosecutorial judgement to the circumstances of this case. Both prosecutors recognised their responsibilities as “ministers of justice”5 and in doing so recommended Gunner Manning be sentenced to four months’ detention and dismissed from Her Majesty’s Service.

[6] This judgment explains the reasons for the decision we announced on

30 April 2015.

Background

[7] The seven charges of doing an act likely to prejudice service discipline concerned consensual sexual activities between Gunner Manning and two victims.
The indecent assault charge related to a third victim.

3      Crimes Act 1961, s 135. Maximum penalty is seven years’ imprisonment.
4      Armed Forces Discipline Act 1971, s 82(5).
5      In R v Puddick (1865) 4 F & F 497 Crompton J explained counsel for the prosecution “… are to regard themselves as ministers of justice, and not to struggle for a conviction …”. These sentiments have been endorsed on subsequent occasions in common law jurisdiction. See for example, Bouchier v R [1955] SCR 16. See also Crown Law Solicitor-General’s Prosecution Guidelines, 1 July 2013 at [19].

[8] Gunner Manning pleaded guilty to the seven charges of doing an act likely to prejudice service discipline. He was found guilty of the indecent assault charge.

[9] At the time of the offending, the victims were recruits undergoing initial training in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Manning v The Queen

Details

AGLC: Manning v The Queen [2015] NZHC 936
Case: [2015] NZHC 936
Decision Date: 30 April 2015

CaseChat Overview and Summary

Gunner Manning appealed against the sentence imposed by the Court Martial of New Zealand, which found him guilty of seven charges of doing an act likely to prejudice service discipline and one charge of indecent assault. The Court Martial sentenced Manning to 15 months' imprisonment and dismissed him from Her Majesty's Service. The Court Martial Appeals Court, consisting of Collins J, Judge Billington QC, and Judge McGregor, considered the appeal on 30 April 2015. The primary legal issue was whether the sentence imposed by the Court Martial was manifestly excessive. The Court found that the sentence was indeed manifestly excessive due to two errors made by the Court Martial. Firstly, the Court Martial failed to consider comparable cases and imposed a sentence significantly outside the usual range for similar offences. Secondly, the Court Martial did not take into account Manning's previous outstanding military service, which included being awarded the New Zealand Distinguished Service Decoration for bravery in Afghanistan. The Court quashed the sentence imposed by the Court Martial and substituted it with a sentence of three months' detention, followed by Manning's dismissal from Her Majesty's Service. The reduction in rank from Bombardier to Gunner remains in force. The Court relied on the Sentencing Guidelines for the Armed Forces Disciplinary Committee, which emphasize consistency and transparency in sentencing decisions, and the purposes of sentencing as set out in the Sentencing Act 2002.

Orders