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 the New Zealand Army.  Gunner Manning was responsible for instructing, leading and ensuring the safety of each of the victims.

[10]     For present purposes, it is sufficient to briefly summarise Gunner Manning’s

offending in the following way:

(1)Between  30  September  and  1  November  2011  he  had  sexual intercourse with Signaller A in the barracks platoon office.

(2)During the same period he had sexual intercourse with Signaller A in a toilet block.

(3)       During the same period he touched Signaller A on her breast area.

(4)Also during the same period he had sexual intercourse on a third occasion  with  Signaller  A,  this  time  in  the  non-commissioned officers’ (NCO) barrack room.

(5)       On 12 April 2012 he placed his finger into Private B’s genitalia.

(6)       On 14 April 2012 he had sexual intercourse with Private B in the duty

NCO’s barrack room.

(7)       Between 21 May 2012 and 25 May he received oral sex from Private

B in the duty NCO’s barrack room.

(8)On  21  October  2012  he  indecently  assaulted  Private  C  when  he grabbed  her  bottom  and  attempted  to  kiss  her  when  he  was intoxicated.

Court Martial decision

[11]     The Court Martial comprised senior and experienced military officers6 and a

District Court Judge with considerable experience in Court Martial proceedings.

[12]     The Court Martial approached its task on the basis that it needed to hold Gunner Manning accountable for his actions and deter others from acting in the same way.

[13]     The Court Martial was very concerned that Gunner Manning had breached his position of trust by taking advantage of his rank to engage in sexual activities with three young female recruits.

[14]     The  Court  Martial  rejected  the  submissions  of  the  prosecution,  which suggested the appropriate starting point for sentencing Gunner Manning was six months’ detention and dismissal from Her Majesty’s Service.

[15]     One factor which influenced the Court Martial was its belief that it was in the public  interest  to  demonstrate  that  the  military  would  not  tolerate  persons  in Gunner Manning’s position fraternising with persons such as the three victims in this case.

[16]     The Court Martial was also concerned that it needed to maintain the integrity of the military by imposing a strict sentence on Gunner Manning.  The Court Martial identified four aggravating features of Gunner Manning’s behaviour in relation to this aspect of its decision:

(1)       First, almost all of Gunner Manning’s offending took place when he

was on duty.

(2)       Second, a lot of Gunner Manning’s offending occurred when he was

in uniform, wearing his insignia of rank.

6      The military panel comprised a colonel, a lieutenant colonel, a squadron leader and two warrant officers.

(3)       Third, some of the offending took place during training exercises.

(4)Fourth, some of the offending took place in a garrison environment at a time when Gunner Manning was meant to be enforcing a separation between the male and female soldiers.

[17]     The  Court  Martial  could  not  detect  any  genuine  remorse  on  the  part  of

Gunner Manning.

[18]     Absent from the Court Martial’s reasoning was any reference to sentences imposed in comparable cases.   Nor did the Court Martial place any weight  on Gunner  Manning’s  previous  outstanding  record  of  service  which  included  him having been awarded the New Zealand Distinguished Service Decoration (DSD) for an act of bravery in Afghanistan in March 2008.  The Court Martial acknowledged Gunner Manning’s deployments, but also commented they were part of his employment as a soldier.

[19]     Gunner Manning served two weeks of the prison sentence before he was granted bail pending the hearing of his appeal.7

Grounds of appeal

[20]     In   his   written  submissions   in   support   of  Gunner  Manning’s   appeal, Mr Murray suggested that the sentence imposed by the Court Martial was manifestly excessive and that an appropriate penalty would have been for Gunner Manning to have been dismissed and/or detained.  In his oral submissions, however, Mr Murray suggested Gunner Manning should have been demoted and detained.

[21]     For   the   prosecution,   Lieutenant   Colonel   Hill   and   Captain   McGrath maintained the stance taken by the prosecution before the Court Martial.   They recommended an appropriate end sentence in this case was one of four months’

detention and dismissal from Her Majesty’s Service.

7      Manning v R [2015] NZHC 307.

Court Martial sentencing principles

[22]     Under s 162 of the Act, the Armed Forces Disciplinary Committee is required to set sentencing guidelines for proceedings brought under the Act (the Sentencing Guidelines). The Sentencing Guidelines are issued as a stand-alone defence order.8

[23]     The Court Martial is required to follow the Sentencing Guidelines unless it would be contrary to the interests of justice to do so.9

[24]     The   Sentencing   Guidelines   emphasise   the   “primary   importance   of consistency and transparency” in sentencing decisions.10

[25]     The Sentencing Guidelines substantially reflect the purposes of sentencing set out in s 7 of the Sentencing Act 2002.   For present purposes, the most relevant purposes of a Court Martial sentence set out in the Sentencing Guidelines are:11

(1)       to hold the offender accountable;

(2)       to promote in the offender a sense of responsibility for the harm done; (3)     to provide for the interests of the victim;

(4)       to denounce the offender’s conduct;

(5)to deter the offender and others from committing the same or a similar offence; and

(6)       to protect the military community from the offender.

[26]     The  Sentencing  Guidelines  explain  that  when  a  Court  Martial  sets  a

sentencing starting point “… it is important to consider previous sentences that have

8      Defence Force Order 14/2011, Armed Forces Disciplinary Committee Guidelines, 18 January

2012; issued pursuant to the Defence Act 1990, s 27.

9      Court Martial Act 2007, s 65.

been imposed in similar cases”.12   The Sentencing Guidelines also explain that “the sentence must take into  account the desirability of consistency with appropriate sentencing levels and other outcomes in respect of similar offenders committing similar offences in similar circumstances”.13

[27]     Mitigating factors relating to an offender are also addressed in the Sentencing

Guidelines in the following way:14

Once the starting point has been identified, the sentence may be decreased in severity if there are particular mitigating features relating to the offender. The following is a non-exhaustive list of potential such features.   If they apply to a particular case, they must be considered, and should be mentioned in the reasons for a sentencing decision.   If the sentence is reduced … because of the existence of such a factor, the amount of that reduction or discount must be articulated.

[28]     Two of the mitigating factors identified in the Sentencing Guidelines are:15

(1)       any evidence of previous good character and service which is before the sentence;

(2)       the conduct of the offender when confronted with the allegation, including any assistance given in resolving associated criminal activity.

[29]   The Sentencing Guidelines require a sentencer to apply a reduction in recognition of any guilty plea if appropriate.16

[30]     The Sentencing Guidelines  also  recognise  that  in  the context  of military disciplinary proceedings certain sentences may need to be imposed that would not be contemplated in civilian proceedings.  The Sentencing Guidelines acknowledge there are some offences which are so contrary to the ethos of the New Zealand Defence Force that, for example, it is necessary to dismiss the offender from Her Majesty’s Service even though such a punishment would not be contemplated if the offending

took place in a civilian context.

12     Defence Force Order 14/2011, above n 8, at A-6.

13     At A-4.

14     At A-8.

[31]     The present case illustrates how offending in a military context can be viewed as being more culpable than when the same offending occurs in a civilian context. The charge of indecent assault which Gunner Manning was convicted of would normally attract a sentence of community work in a civilian court.17   However, in a military context a custodial sentence for an indecent assault of the kind perpetrated by Gunner Manning may be justified in order to condemn breaches of trust and the

duty of an officer of any rank to ensure the safety of lower ranks.  In addition, the normal sentence that would be imposed in a civilian court is not available under the Military Disciplinary Regime.

[32]     The punishments that may be imposed on an offender by the Court Martial include:18

(1)       imprisonment;

(2)       dismissal from Her Majesty’s Service;

(3)       detention;

(4)       reduction in rank.

A punishment specified in the schedule of punishments must be regarded as less severe than any of the punishments that are specified in the preceding paragraphs of the schedule of punishments.19   Thus, imprisonment is the most serious punishment that can be imposed on an offender, followed by dismissal from Her Majesty’s Service, followed by detention.

Comparable cases

[33]     We have had the benefit of being referred to a number of authorities from within the New Zealand Military Disciplinary Regime, civilian authorities and cases

17     R v Aylwin [2007] NZCA 458; Logan v Police [2013] NZHC 1631; Spicer v Police [2014] NZHC 861.

18     Armed Forces Discipline Act 1971, sch 2(1).

from cognate jurisdictions.   It is, however, not necessary for us to engage in an exhaustive analysis of all the cases referred to us.

[34]     Ultimately, we agree with the submissions of Lieutenant Colonel Hill and Captain McGrath when they submitted R v Kennett is most comparable.20     The circumstances of the offending in that case were quite similar to Gunner Manning’s offending.  Corporal Kennett’s offending largely related to his inappropriate conduct with female recruits.  Corporal Kennett was ultimately convicted on one charge of indecent assault and 11 charges of doing acts likely to prejudice service discipline,

acting in a disgraceful or indecent manner and failing to comply with orders.  The end sentence imposed upon Corporal Kennett was six months’ detention and dismissal from Her Majesty’s Service.

Previous conduct

[35]     Gunner Manning joined the New Zealand Army in September 2005.  He had an unblemished record of service until the events that led to him being charged.

[36]     Gunner Manning’s deployments included a period of service in Afghanistan and a period in Timor-Leste.

[37]     Gunner Manning was awarded the DSD for an incident which occurred in March  2008  when  he  was  in  Afghanistan.    The  citation  records  how  Gunner Manning defused an altercation between armed members of the National Police and another local police officer.   Gunner Manning intervened and disarmed one of the police officers.  He was commended for the calm and professional way he dealt with the situation.

[38]     Gunner Manning was promoted to the rank of Bombardier in August 2011.

20     R v Kennett CM2156, 23 August 2005.

Analysis

[39]     An appeal against sentence is determined pursuant to s 9AB of the Court Martial Appeals Act 1953.  On appeal this Court must do one of those two things if it thinks that a different sentence should have been imposed, namely:21

(1)“quash   the   sentence   imposed   and   impose   any  other   sentence warranted in law (whether more or less severe) in substitution for the sentence that was quashed”; or

(2)      “vary, within the limits warranted in law, the sentence or any part of it

or any condition imposed in it”.

[40]     In  considering  Gunner  Manning’s  appeal  we  focused  upon  the  sentence reached by the Court Martial, rather than the steps that led to the Court Martial’s decision.22    The primary focus of our inquiry was on whether or not the sentence imposed was “manifestly excessive”.

[41]     The term “manifestly excessive” was explained by the Court of Appeal in R v

Monkman:23

Whether a sentence can be said to be manifestly excessive turns on the maximum sentence prescribed by law for the offence; the level of sentencing customarily  observed  with  respect  to  that  offence;  the  place  which  the conduct in question assumes on the scale of seriousness of offences of that type; and the personal circumstances of the offender (to the extent that they are relevant with respect to the particular kind of offending) …

[42]     In the present case, two errors by the Court Martial led to it imposing a sentence that was manifestly excessive.

[43]     First, the Court Martial failed to have regard to any comparable cases and in doing so imposed a sentence that departed significantly from the usual range of

sentences for offending of the kind engaged in by Gunner Manning.  We could find

21     Court Martial Appeals Act 1953, 9AB(a)(i) and (ii).

22     Ripia v R [2011] NZCA 101 at [15].

23     R v Monkman CA445/02, 3 March 2003 at [6].

no  case  in  which  a  person  in  similar  circumstances  to  Gunner  Manning  was

sentenced to prison, let alone a sentence of 15 months’ imprisonment.

[44]     As is noted in the Sentencing Guidelines, consistency in sentencing decisions is of primary importance in order to maintain respect for military disciplinary proceedings.  In this case, the Court Martial had the benefit of submissions from the prosecution which drew attention to comparable sentences.   There was no sound reason for the Court Martial to depart in any significant way from the course of action urged by the prosecution in this case.

[45]     Second, Gunner Manning had a very good record of military service.  He was not an  ordinary soldier.    His  previous  outstanding  record, and  in  particular his demonstrated bravery merited some weight when he was sentenced.

The appropriate sentence

[46]     We agree entirely with the approach recommended by Lieutenant Colonel

Hill and Captain McGrath in this case.

[47]     The  appropriate  starting  point  for  the  sentence  of  Gunner  Manning  was six months’ detention followed by dismissal from Her Majesty’s Service.

[48]     Gunner Manning was entitled to a two month discount from the starting point

of six months’ detention to reflect his guilty plea and his previous good conduct.

[49]     We deducted a further month from the period of detention to take account of the  fact  Gunner  Manning  has  served  two  weeks’ imprisonment.    This  discount reflects our assessment that:

(1)under  Schedule  2(2)  of  the  Act  imprisonment  is  a  more  severe sentence than detention; and

(2)a sentence of imprisonment carries a greater stigma than a sentence of detention.

[50]     We reject Mr Murray’s  argument that  Gunner  Manning could have been demoted  and  not  dismissed  from  Her  Majesty’s  Service.    In  our  assessment, Gunner Manning’s  conduct  required  his  dismissal  from  the  army.    He  grossly breached the trust that had been placed in him and seriously undermined the basic principles  of  military conduct.    His  behaviour  was  the  antithesis  of  those  who deserve to be in the New Zealand Armed Services.

[51]     Pursuant to s 79 of the Act we have passed only one sentence, which we believe reflects the purposes of sentencing which we have summarised in paragraph [25] of this judgment.

Conclusion

[52]     The appeal has been allowed.

[53]     The sentence imposed by the Court Martial has been quashed.

[54]     Gunner Manning has been ordered to serve three months’ detention after

which he is dismissed from Her Majesty’s Service.

Signed on behalf of the Court

D B Collins J

Solicitors:

P L Murray, Barrister and Solicitor, Palmerston North for Appellant
The Director of Military Prosecutions, Wellington for Respondent