McCartin v The Queen - [2016] NZHC 2133

IN THE COURT MARTIAL APPEAL COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2016-485-659 [2016] NZHC 2133

BETWEEN
JACOB DANE MCCARTIN

Appellant

AND

THE QUEEN Respondent

Hearing:
Court:

7 September 2016

Simon France J Judge D McGregor Judge J R Billington QC

Counsel:

P L Murray for Appellant
Captain R L Goguel and Lieutenant Commander P McIntosh for
Respondent

Judgment:

8 September 2016

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Simon France J)

Introduction

[1] This is an appeal against sentence pursuant to s 9 of the Courts Martial Appeals Act 1953. Sapper McCartin pleaded guilty to various drug offences. He was sentenced to dismissal and four months’ imprisonment.1 The focus of the appeal
is on the sentence of imprisonment. It is contended the alternative sentence of

1 R v McCartin Court Martial Linton, 24 August 2016.

MCCARTIN v THE QUEEN [2016] NZHC 2133 [8 September 2016]

detention should have been imposed. It is therefore convenient to first identify the sentencing options that were available.

Sentencing options

[2] The starting point is Schedule 2 to the Armed Forces Discipline Act 1971 (The Act) which establishes a hierarchy of sentences:

(a) imprisonment;

(b) dismissal from Her Majesty’s Services;

(c) detention;

(d) reduction in rank;

(e) forfeiture of seniority; (f) a stay of seniority;
(g) a fine;

(h) a severe reprimand; (i) a reprimand.

[3] Regardless of the number of charges only one sentence is to be imposed, albeit that sentence can consist of more than one of these options.2 Hence in the present case, the sentence was both imprisonment and dismissal. Schedule 2 provides that each type of sentence is to be treated as more severe than any of the type below it in the list. However, a period of detention that would be longer than
any sentence of imprisonment that would be imposed is not to be seen as less severe.

2 Armed Forces Discipline Act 1971, s 79.

[4] A sentence of imprisonment is served in a civilian prison. The primary difference is that the Parole Act 2002 does not apply.3 Rather, a system of reconsideration as set out in Part 8 of the Act applies. This mandates reconsideration every six months by a Reconsidering Authority. For sentences of less than six months’ imprisonment, reconsideration is possible but is not mandatory.4 A military prisoner may petition for reconsideration.5 The sentence may be remitted in whole or in part on the grounds of good conduct, on compassionate grounds, or for any other proper reason.6 The expectation in the present case is that Sapper McCartin will serve the full fourth months.

[5] Concerning the sentence of detention, s 168 of the Act provides that the sentence shall be served in a detention quarter or in service custody.7 The Court was advised that the sentence of detention is administered by the Services Corrective Establishment (SCE). The sentence is served at a dedicated facility.

[6] A memorandum was provided to the Court which sets out how a…

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 McCartin v The Queen

Details

AGLC: McCartin v The Queen [2016] NZHC 2133
Case: [2016] NZHC 2133
Decision Date: 8 September 2016

CaseChat Overview and Summary

Sapper Jacob McCartin, an appellant, challenged the sentence of imprisonment imposed upon him by the Court Martial in New Zealand. The appellant was found guilty of various drug offences and was sentenced to dismissal from service and four months’ imprisonment. The appeal focused on the appropriateness of the imprisonment sentence, arguing that detention should have been imposed instead. The court considered the hierarchy of sentences outlined in the Armed Forces Discipline Act 1971, with imprisonment being the most severe option available. The court noted that a sentence of imprisonment in the military context serves a specific deterrent purpose and is served in civilian prisons with certain differences in the application of the Parole Act 2002.

The court considered the nature of the appellant's offending, which involved dealing drugs over a six-week period and involved three different substances. The court found the appellant to be a low-level drug dealer, with a commercial aspect to his offending. The court noted that drug dealing in the military context is viewed as a serious offence, warranting a sentence of imprisonment to deter others from engaging in such activities. The court also noted that while the appellant had suffered hardship, including losing his employment and being unable to complete his apprenticeship, these factors were not sufficient to persuade the court that the sentence of imprisonment was manifestly excessive.

The court dismissed the appeal, finding that the sentence of imprisonment was an appropriate response to the appellant's offending. The court emphasised the importance of general deterrence in the context of drug dealing and held that the sentence of imprisonment was not manifestly excessive in light of the appellant's conduct and the need to send a message to other military personnel. The court also noted that the link between the offending and the appellant's position within the Armed Forces was at the lower end, and the primary source of precedent in this case were decisions of civilian courts. The appeal was dismissed, and the sentence of imprisonment was upheld.

Orders