Roberts v The Queen - [2016] NZHC 2588

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE COURT MARTIAL APPEAL COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2016-485-586 [2016] NZHC 2588

BETWEEN
GLEN EDWARD ROBERTS

Appellant

AND

THE QUEEN Respondent

Hearing: 6 September 2016

Court:

Cull J
Judge D McGregor
Judge J Billington QC

Counsel:

S J Taylor for appellant
Lt. Col. K Hill and Lt. J Rowe for respondent

Judgment:

28 October 2016

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.

B The appeal against sentence is allowed in part and is varied as follows.
The appellant is sentenced to:

(a) a reduction in rank from Staff Sergeant to Sergeant; and

(b) a severe reprimand.

REASONS OF THE COURT

(Given by Cull J)

GLEN EDWARD ROBERTS v THE QUEEN [2016] NZHC 2588 [28 October 2016]

Introduction

[1] Sergeant Glen Edward Roberts (the appellant) appeals against his conviction and sentence by the Court Martial of two charges of ill-treating a person of lower rank contrary to s 41(b) of the Armed Forces Discipline Act 1971 (the AFDA) and one charge of doing an act likely to prejudice service discipline contrary to s 73(1)(a) of the AFDA, by using a real knife during Close Quarter Battle (CQB) training to demonstrate offensive techniques.

[2] The appellant was sentenced to a reduction in rank from Staff Sergeant to

Sergeant, 12 months stay of seniority and a severe reprimand.

Grounds of Appeal

[3] The appellant appeals the two convictions and sentence on the following grounds:

(a) The Judge misdirected the Court Martial in his summing up, by not including as an element to be proven:

(i) in the charges of ill-treatment, an intention to ill-treat; and

(ii)in the charge of an act likely to prejudice service disciplines, an honest belief that the appellant was not acting improperly.

(b)The finding of guilty on an act likely to prejudice service discipline contrary to s 73(1)(a) of the AFDA cannot be supported having regard to the evidence.

[4] The appellant also submits that the sentence imposed by the Court Martial was manifestly excessive.

Factual background

[5] The appellant was a Staff Sergeant, employed as an instructor and was involved in instructing CQB training to initial entry Army recruits on the courses

known as the All Arms Recruit Course 375 (Course 375) and the All Arms Recruit

Course 376 (Course 376).

First ill-treatment charge

[6] During his instruction of the recruits on Course 375 in September 2014, the appellant used Private A to demonstrate moves on two occasions. On the first occasion, the appellant applied a choke-hold and softly tapped him on the testicles with the back of his hand. The tap on the testicles was a soft tap and not painful but Private A, not expecting it, flinched and leaned forward.

[7] On the second occasion, the appellant grabbed Private A’s testicles, while talking to the class about vulnerability. The appellant then pulled Private A to the ground, with…

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 Roberts v The Queen

Details

AGLC: Roberts v The Queen [2016] NZHC 2588
Case: [2016] NZHC 2588
Decision Date: 28 October 2016

CaseChat Overview and Summary

In Roberts v The Queen, the Court Martial Appeal Court considered an appeal against conviction and sentence by Sergeant Glen Edward Roberts (the appellant) of two charges of ill-treating a person of lower rank and one charge of doing an act likely to prejudice service discipline. The appellant appealed against both his conviction and sentence. The Court Martial Appeal Court found that the appellant's appeal against conviction failed, but his appeal against sentence was allowed in part. The appellant was sentenced to a reduction in rank from Staff Sergeant to Sergeant and a severe reprimand. The Court Martial Appeal Court found that the 12 month stay of seniority was manifestly excessive and varied the sentence accordingly.

Orders