Roberts v The Queen
[2016] NZHC 2588
•28 October 2016
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 QCCounsel:
S J Taylor for appellant
Lt. Col. K Hill and Lt. J Rowe for respondentJudgment:
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 his testicles in the appellant’s hand. Private A went forward and fell to the ground which caused “a little bit of pain but it was not bad”. The Judge’s sentencing notes record, “it was a firm hold but was not tight, and if he did not go to the ground with you at the time, it would have been painful”.
[8] The above facts on the two occasions outlined, form the basis of the first ill- treatment charge.
Second Ill-treatment charge
[9] In October 2014, the appellant was involved in instructing CQB training to entry recruits on Course 376. On this course, the appellant invited Private B to come forward to demonstrate how to get out of a Muay Thai Clinch. Private B applied the hold to the appellant and without warning, the appellant hit him in the testicles twice, causing Private B to step back. The appellant then advised the class “if that doesn’t work, you then thrust fingers into the eyes” which he then did to Private B. The appellant then requested Private B to put the hold on him again and when he did so, the appellant hit him in the testicles and pulled down on his testicles. When Private B stepped back again, the appellant poked him in the eyes a second time and Private B’s contact lenses fell out. The recruit felt extremely sick, flustered and hurt. This conduct formed the basis of the second ill-treatment charge.
Third charge – act likely to prejudice service discipline
[10] On the same course in October 2014, the appellant instructed Private C, another recruit, to stand still or else he would be cut and the appellant used a real knife to perform knife strike demonstrations on him. Private C described the knife as “a butcher knife, similar to a kitchen knife. It had no sheaf and he was in a bit of shock.” Private C stepped back and flinched but he was not harmed. The use of the real knife in those circumstances to demonstrate offensive techniques was contrary to the relevant Chief of Army Directive and formed the basis of the third charge, of doing an act likely to prejudice service discipline.
[11] Following the incidents in September and October 2014 respectively, the recruits had raised their complaints in November 2014. They were formally interviewed respectively on 16 March, 18 May and 27 July 2015.1 The investigation into the charges continued until disclosure was made to the appellant on 3 November
2015 and his summary trial was scheduled for 5 December 2015. At the request of the appellant, the summary trial was adjourned and held on 2 and 3 February 2016.
[12] On 12 April 2016, the Director of Military Prosecutions laid charges against the appellant for hearing before the Court Martial which commenced on 4 July 2016. The appellant was charged with five charges of ill-treating a person of lower rank and in the alternative, three charges of assaulting a female recruit, contrary to s 194(b) of the Crimes Act 1961 and three charges of common assault, together with two charges of doing an act likely to prejudice service discipline.
[13] The appellant was found guilty on two charges of ill-treating a person of lower rank and one charge of doing an act likely to prejudice service discipline. He was acquitted on the other charges. The appellant appeals against his conviction and sentence on the three charges.
The charges
[14] The two charges of ill-treating a person of lower rank were laid pursuant to s 41 of the AFDA, which provides:
1 Private B was interviewed on 16 March 2015; Private C was interviewed on 18 May 2015; Private A was interviewed on 27 July 2015.
Ill-treatment of person of lower rank
Every person subject to this Act commits an offence, and is liable to imprisonment for a term not exceeding 2 years, who—
(a) strikes; or
(b) otherwise than by striking, ill-treats—
any other person subject to this Act who holds a lower rank.
[15] The appellant submits that the issue on appeal is whether the prosecution must prove an intention on the part of the accused to ill-treat, being an element of the charge under s 41(b), to be proven beyond reasonable doubt. He contends that the Judge misdirected the Court Martial by failing to direct on this element of intention to ill-treat.
[16] In relation to the charge of doing an act likely to prejudice service discipline, s 73(1)(a) of the AFDA provides:
Every person subject to this Act commits an offence, and is liable to imprisonment for a term not exceeding two years, who – does or omits any act that is likely to prejudice service discipline.
[17] The charge alleges that the act likely to prejudice service discipline was the use by the appellant of a real knife during CQB training to demonstrate offensive techniques. The appellant submits that the Judge misdirected the Court Martial in his summing up, by not including as an element to be proved, an honest belief that the appellant was not acting improperly.
[18] We deal with each of these grounds under the headings of “ill-treatment” and
“acts likely to prejudice service discipline” below.
First ground of appeal – Misdirection on ill-treatment
The direction on ill-treatment
[19] Prior to directing the military members of the Court Martial, Judge Taumaunu raised with counsel in chambers what material elements were required to prove the ill-treatment charge. The Judge noted that the appellant’s counsel in his opening had described an additional element, which the prosecution was required to prove for the
charge of ill-treatment, namely, that it was the intention of the accused to ill-treat the recruits in question. The Judge was referred to the New Zealand authority of R v Stevenson2 and the Disciplinary Officer’s checklist,3 before the Judge gave his direction.
[20] In his direction, the Judge adopted an objective test and did not direct that the Crown had to prove that the accused intended to ill-treat the recruits. The Judge directed as follows:
However, for the charges of ill-treatment you will appreciate already that a number of the elements of the ill-treatment charges have already been agreed and can be accepted by you without any further proof, namely that the accused and the complainant were both subject to the AFDA 1971, and that the complainant was of lower rank than the accused, and that the accused knew that fact.
In addition to those agreed elements, to prove the ill-treatment of a person of lower rank, the prosecution must prove beyond reasonable doubt that the acts alleged against the accused were actually committed by him, that he intended to commit those acts, and that the act or acts amount to ill- treatment.
[21] On the issue of the appellant’s intention, the Judge said it was an objective
assessment as to whether the accused’s actions amounted to ill-treatment:
The issue for your determination is not whether the accused believed that he was ill-treating recruits, the issue is whether on an objective assessment the actions of the accused amounted to ill-treatment, and this is where you will need to apply your combined military experience to answer that question.
You will also need to bear in mind that ill-treatment in this context is more than simply assault, because you may well find technically there has been an assault committed. However, the charge of ill-treatment requires something more than that, …
[22] By way of comparison, the Judge directed on the material elements of the charge of common assault which:
“require that the prosecution must prove beyond reasonable doubt that the accused intentionally applied force to another person, that the person allegedly assaulted did not consent, and that the accused did not honestly believe that there was consent.”
2 R v Stevenson [1986] 2 NZLR 758, (1985) 1 NZCMAR 110 (CMAC).
3 New Zealand Defence Force Manual of Armed Forces Law: Commander’s Handbook on
Military Law (2nd ed) DM 69 Vol 1 (“Armed Forces DM 69”) at 4-23–24.
[23] The Judge continued with this direction by stating, that if the alternative charges of common assault and male assaults female charges had to be considered, the military members would need to consider whether the accused intended to commit the act or acts alleged against him and if so, whether the complainants consented.
The Appellant’s submissions
[24] The appellant submits that the Disciplinary Officer’s checklist for prosecutions in the Armed Forces DM 69, setting out the elements of a charge of ill- treating, is wrong, in that it does not include an intention to ill-treat, as an element to be proved.
[25] In the Armed Forces DM 69, the elements required to be proved for a charge of ill-treating are listed as follows:4
Disciplinary Officer’s checklist (AFDA s 41(b) Ill-treating):
Elements
(a) Subject to the AFDA.
(b) Did act or omission alleged in the particulars. (c) Intended to do that act or omission.
(d) Act or omission constitutes ill-treatment.
(e) Victim was person subject to the AFDA holding a lower rank.
(f) Knew victim was a person subject to the AFDA holding lower rank.
[26] The appellant submits on appeal that the Judge erred in failing to direct that the prosecution was required to prove an intention to ill-treat. The appellant referred to R v Stevenson, being the only New Zealand authority on ill-treating a person of lower rank.5
[27] In Stevenson, the Court Martial Appeal Court held that the Judge advocate had misdirected the Court Martial by directing it was appropriate to apply the definition of assault in the Crimes Act, when determining whether conduct amounted to ill-treatment under the AFDA. The Court held that the degree of force to sustain a
charge of ill-treatment under s 41(b) of the AFDA was significantly higher and the
4 At 4 - 24.
direction should have stated that the prosecution had to prove, on the facts and beyond reasonable doubt, that the degree of force applied to the junior rank rating in the Royal New Zealand Navy had caused a painful injury and as such amounted to ill-treatment of a person of lower rank. The Authority is silent, however, on the issue of whether an intention to ill-treat is an element of a charge under s 41(b) of the AFDA.
[28] The appellant submits that it is a fundamental principle of criminal law that before an accused may be convicted of a crime it must be proved that he or she did the act complained of and had the requisite guilty mind. The appellant contends that in the absence of a provision which expressly provides that an act must be done with some specific mental element, such as “wilfully” or “knowingly” or “with intent to…”, s 41 of the AFDA still requires an intention to ill-treat.
[29] The appellant referred to the Court Martial Appeal Court decision in R v L to support his argument that the prosecution had to prove beyond reasonable doubt that the accused at the material time acted deliberately and that he knew or realised that he was acting improperly.6 If an accused held an honest belief in a state of affairs, which if true would not amount to a contravention of s 73(1)(b), or there was a reasonable doubt as to the existence of such an honest belief, that would entitle the accused to an acquittal.7
[30] To illustrate the argument that an additional mens rea element is required for the charge of ill-treatment, the appellant referred to offences, which comprise an assault, but which require an additional element for more serious offending. The examples given were offences of indecent assault, disgraceful conduct and assault with intention to injure, all of which require an intention on the part of the accused to cross the threshold of more serious offending. By reference to the elements required for indecent assault or disgraceful conduct, the appellant submits that the prosecution has to prove as an element of the offence, that the accused intended to commit an act
which makes the assault indecent, for example.
6 R v L (1992) 1 NZCMAR 150.
The Crown’s reply
[31] In reply, the Crown submits that where a statutory provision is silent as to mens rea, the Court should consider Parliamentary intention and broader policy considerations in determining the mens rea requirement. The closest analogy to ill- treatment of a junior ranked member, the Crown submits, is the offence of ill- treatment of a child under s 195 of the Crimes Act. Because the relevant part of the Crimes Act aims to protect children, the elderly and the impaired, there is special protection afforded to their vulnerable status. The Crown submits that these individuals are directly comparable to lower ranking personnel under s 41 of the AFDA, as they are often, although not always, the youngest, most junior personnel in the New Zealand Defence Force. The Crown drew attention to the wording of s 195 of the Crimes Act, before its amendment in 2012, which included the term:
“wilfully ill-treats” … the child, … in a manner likely to cause him unnecessary suffering …
[32] For completeness, after the 2012 amendment, s 195 now contains the wording:
“… intentionally engages in conduct that is likely to cause suffering, injury
…” and such “conduct engaged in … is a major departure from the standard
of case to be expected of a reasonable person.”
[33] For ease of reference, we are referring to the additional mental element of “wilfully” or “knowingly” as the “double-intent” approach to the former charge of lawfully ill-treating a child. The former s 195 Crimes Act provision was considered by the Court of Appeal in R v Hende, where the Court held that “wilful” meant that mens rea was relevant, both to the application of the physical act or an omission constituting ill-treatment, as well as to the accused’s conscious appreciation that
unnecessary suffering was likely to result.8 (Thus, our reference to the “double-
intent” of such statutory provisions.) The Court held that the jury had not been appropriately directed as to the accused’s state of mind, as well as the deliberate exercise of an act of ill-treatment.
[34] The Crown referred to the Law Commission’s 2008 review of s 195 of the
Crimes Act, which dealt with the difficulties resulting from the “double-intent”
approach. In comparison with the present case, the Crown submitted that the Hende approach is not supported by the wording of s 41(b) of the AFDA, because there was no requirement to wilfully ill-treat or intend the outcome of the act. The only mens rea requirement, the Crown says, is the deliberate exercise of an act of ill- treatment, together with knowledge that the victim was subordinate in rank.
[35] In response to the “additional element” offences referred to by the appellant, the Crown refers to two categories of offences which have an additional element requirement. The first of those is where the nature of the act is the aggravating feature such as indecent assault, assault with intent to injure or wounding with intent. There is an additional element of intent that must be proved in order to raise the seriousness of the offending beyond common assault.
[36] The second class of additional element offences, the Crown says, are those that are more serious because of the vulnerable status of the victim, rather than the nature of the act itself. These offences include male assaults female and assault of a child, both of which contain the additional mens rea element requiring knowledge of the offender of the status of the victim. It is this category that the Crown submits is more similar to ill-treating a person of lower rank, because it is the vulnerability of the subordinate in relation to the superior that is the genesis of the offence.
[37] The Crown submits that s 41 of the AFDA does not provide for a specific intent or “double-intent” for the charge of ill-treatment of a lower rank, because its particular aggravating feature that elevates it as a serious offence and reflects the need to maintain order, discipline and a safety in the most unique of environments, is the disparity of rank and the abuse of the position of authority or control the appellant holds as a result. The Crown submits there was no requirement on the Judge to direct that the Crown had to prove an intention to ill-treat.
Analysis
[38] Following the Hende decision,9 the New Zealand Law Commission was invited by the Ministry of Justice to review Part 8 of the Crimes Act. As part of its review, the Law Commission observed that s 195 of the Crimes Act is generally
charged in situations where there is a pattern of behaviour over a period of time, so that there is more than one instance of ill-treatment or wilful neglect. However, the Commission opined that it is possible to charge a single instance of assault under s 195, such that ill-treatment may extend to “bullying”, or “frightening”, or any other course of conduct that is likely to cause the child unnecessary suffering.10
[39] In making its recommendations to amend s 195, the Law Commission proposed a “gross negligence” test to replace the reference to “wilfully” in the former s 195. Thus, the jury or decision-maker need be satisfied only that the conduct alleged was a major departure from the standard of care to be expected of a reasonable person. Ignorance or thoughtlessness would no longer absolve a defendant from liability.11 Thus, while the act or omission constituting ill-treatment must still be intentional, the gross negligence test focuses on whether the conduct was a major departure from the standard of care of a reasonable person.
[40] In comparing s 195 with the provisions of the AFDA, ill-treatment of a lower rank under s 41 of the AFDA does not provide for a specific intent and has not done so since the AFDA was enacted in 1971. There are other offences in the AFDA which contain statutory wording, involving a specific or “double-intent”, such as “knowingly gave a false answer” (s 53(a)), “wilfully and without authority” (s 46(1)), “fraudulently” (s 57(1)(b)), “recklessly” (s 67(1)(a)) or “with intent to” (s 23(1)).
[41] We agree with the Crown’s submission that s 41 was designed for those situations in which it is desirable to protect vulnerable people from the consequences of ignorance or thoughtlessness on the part of those that have control over them and have responsibility for their welfare. Thus, requiring a double-intent or an additional mens rea requirement, that the accused intended to ill-treat a lower rank, would frustrate the protective purpose of this section and would enable a superior to argue that they did not intend to ill-treat or was simply doing their job as they saw
appropriately.
10 Law Commission Review of Part 8 of the Crimes Act: Crimes against the person (NZLC R111,
2009) at [5.12] and [5.13].
11 At [5.17].
[42] The Crown drew an analogy with the previous wording of s 195 of the Crimes Act, that the “double-intent” approach, with the additional requirement of “wilfully” rendered successful prosecutions under the section almost unattainable. In the same way, if the “double-intent” approach is applied to s 41 of the AFDA, it too would render s 41 impotent to protect the most vulnerable members of the New Zealand Defence Force.
[43] The closest equivalent to s 41 of the AFDA is s 95 of the Canadian National Defence Act 1985, which is a charge of ill-treating a person of lower rank. We were referred by counsel for both parties to the Canadian authorities on ill-treatment of a subordinate rank.
[44] In R v Lalande, the Court Martial found that Sergeant Lalande intentionally pushed Master Corporal Kresky and the circumstances surrounding the assault compelled the conclusion that it amounted to ill-treatment of a subordinate.12 The Court held that at the time of the events, Sergeant Lalande knew that Master Corporal Kresky was his subordinate. No further mens rea element was required to be proved and Sergeant Lalande was found guilty of the offence of ill-treatment of a subordinate. The alternative charge of assault was dismissed.
[45] A charge of ill-treatment of a subordinate was laid under s 95 of the National Defence Act in R v Murphy, where the Court held that the two essential elements which characterised this specific offence of ill-treatment of a subordinate were:13
First, the fact to strike or ill-treat another person; and second, the existence of a subordinated relationship based on rank or appointment between the author of the offence and the alleged victim.14
[46] On the issue of intent, the Court concluded that the “prosecution must prove beyond a reasonable doubt the intent of Corporal Murphy to abuse his authority or to use violence toward a subordinate because of the existence of such hierarchical
relationship”.15
12 R v Lalande 2011 CM 2005 (Ca) at [35].
13 R v Murphy 2014 CM 3021 (Ca).
14 At [46].
[47] However, in a more recent case of R v Durhart, the Court Martial rejected the approach in Murphy. It held that the intent element of the offence of ill-treatment, where the accused was charged with ill-treatment of his subordinates by unwanted touching, was met by Sergeant Durhart having the requisite intent to touch the complainants as alleged and this is the “only proof of blameworthy state of mind or
mens rea that is required for a charge of ill-treatment of subordinates.”16 In the two
instances of unwanted touching in Durhart, the offending arises from the subordinate-superior relationship which operated at the time. The test adopted by the Court in Durhart was an objective test and the only mens rea that was required was the intent to touch the complainants.17
[48] The objective test adopted by the Canadian Courts Martial to its equivalent offence of ill-treating a subordinate is equally applicable to s 41 of the AFDA, because there is no provision for specific intent in the statutory wording and s 41 is a protective enactment, designed to ensure junior ranks are not subject to inappropriate treatment from their superiors.
[49] In this case, when dealing with the intention to ill-treat issue in chambers with counsel, the Judge posed the application of the objective test, as opposed to a subjective test, in the following way:
In fact, the accused could well believe that he is not ill-treating the recruits, [yet] the Military Members would be entitled to find on an objective basis that he was.
[50] We agree with the Judge’s approach, which is consistent with the Canadian
objective test and the statutory framework of the AFDA.
[51] For clarification, we confirm that to prove a charge of ill-treating a person of lower rank under s 41(b) of the AFDA, the elements required to be proved are:
(a) The accused and their complainant are both subject to the AFDA.
(b) The complainant was a person holding a lower rank.
16 R v Durhart 2015 CM 4022.
(c) The accused knew the complainant was a person holding a lower rank.
(d) The accused intended to do that act or omission alleged.
(e) The accused did the act or omission alleged in the particulars. (f) That the act or omission amounts to ill-treatment.
[52] We are of the view that the Judge correctly directed on the charges of ill- treating a person of lower rank and this ground of the appeal fails. We also hold that the Judge was not required to direct on whether the accused had an honest belief that he was ill-treating the person in his direction on ill-treatment.
Second ground of appeal - Misdirection on an act likely to prejudice service discipline
[53] The second ground of appeal is that the Judge misdirected the Court Martial by not directing that an element the prosecution was required to prove, for a charge of doing an act likely to prejudice service discipline under s 73, was an honest belief that the appellant was not acting improperly. It is also alleged that the finding of guilty on the charge cannot be supported having regard to the evidence.
[54] The Judge framed the elements to be proved in the question trail for the Court
Martial as follows:
(a) That the accused used a real knife during CQB training to demonstrate offensive techniques.
(b)That the accused intended to use a real knife during CQB training to demonstrate offensive techniques.
(c) That the actions of the accused were likely to prejudice service discipline.
(d) That the accused knew he was acting improperly.
[55] The Judge directed on the elements to be proved on the charge of likely to prejudice service discipline, that the prosecution must prove beyond reasonable doubt that:
(a) The accused did the acts that are alleged. (b) That he intended to do so.
(c) That his actions were likely to prejudice service discipline. (d) That he knew that he was acting improperly.
[56] It is the latter element that is the subject of this second ground of appeal. The appellant submits that the military members should have been directed to consider whether or not there was an honest belief that the appellant was permitted to use the real knives in the CQB training course.
[57] The Judge focused on the “final material element”, as to whether the accused knew he was acting improperly, when the accused accepted in evidence that he did use a real knife in CQB training, but denied using it for offensive demonstrations. The Judge directed as follows:
In terms of the material element, which is whether you’re satisfied beyond reasonable doubt that the accused knew he was acting improperly, you’ll recall that the accused accepted in evidence that he did use a knife, a real knife in CQB training from time to time, but not for offensive demonstrations. He gave evidence that the knives were used for show and tell purposes, and for the slow-time demonstrations, with safety considerations at the forefront of his mind. He conceded that the CQB guidelines clearly prohibited the use of real knives but he also mentioned his belief that the documentation was old, was currently being revisited. He believed he was permitted to use the knives after discussion with Sergeant Major Barlow. Those again are matters you’ll need to consider when drawing conclusions about whether he knew he was acting improperly, and that will of course require you to apply your collective military experience to answer that particular question.
[58] The appellant submits that there was an evidential basis for the Court Martial to consider the appellant’s honest belief, relying on the appellant’s reputation for integrity, honesty and competence. Major Taylor, for the appellant referred to a number of passages in the evidence, in which the appellant was described as a highly
competent instructor, both in the military courses he conducts and on the civilian training experiences for ongoing professional development. His professional standards were described as being technically proficient and professional and that he is one of the “best CQB instructors you could ever get.” He was also described as a very honest and mature person and was rated 10 out of 10 for integrity and honesty.
[59] The accused also gave evidence that he puts his knowledge and experience into the CQB courses as well as his passion and that he would not use a real knife for offensive techniques, they would only be used for demonstration and role plays. He did not recall the instances alleged from the complainant recruits, which formed the basis of the charge.
[60] There was no disagreement between the parties, that the Courts Martial Appeal Court in R v L confirmed that offences under s 73 have two mens rea requirements,18 namely, that the prosecution has to prove that the accused at the material time:19
(a) Acted deliberately; and
(b) Knew or realised that he was acting improperly.
[61] Thus, an act or omission arising from a mere accident or inadvertence would not be sufficient:20
If an accused held an honest belief in the state of affairs which if true would not amount to a contravention of s 73(1)(b) or there is a reasonable doubt as to the existence of such an honest belief that would entitle the accused to an acquittal.
[62] By not directing that the Crown had to prove an honest belief on the part of the appellant, the appellant contends that this was a material omission from the direction, which amounted to a misdirection. In reply, the Crown submits that there is no general requirement for the Judge to give a special direction in relation to honest belief, unless there was an evidential basis for directing on both mens rea
issues.
18 R v L, above n 6.
19 At 163, line 37.
20 At line 40.
[63] The accused denied the allegations that he used real knives in the CQB training course and denied the acts alleged by the recruit complainant. We see this as problematic for the appellant, as the issue of whether the appellant honestly believed he was entitled to act in the manner that he did, by using real knives for CQB training and not just demonstrations, is not relevant.
[64] In our view, the Judge captures the essence of the appellant’s case, reminding the Court Martial that the accused accepted in evidence that he did use a real knife in CQB training from time to time, but not for offensive technique demonstrations. The Judge refers to the appellant’s evidence that he believed that he was permitted to use the knives, after discussion with Sergeant Major Barlow. The Judge leaves the consideration of all those matters to the military members when reaching their conclusions, about whether the accused knew he was acting improperly.
[65] In denying that he used real knives for demonstrating offensive techniques, the permission by Sergeant Major Barlow to use real knives, become irrelevant. In our view, the Judge has accurately directed on the elements of the charge, on the basis of the evidence adduced. Thus, if the military members were satisfied that the appellant knew he was acting improperly in using real knives to demonstrate offensive techniques, there was no room for an honest belief on his part that he was permitted to use real knives for this purpose in any event. We are not persuaded that the Judge has misdirected the Court Martial by omitting to direct on honest belief.
[66] We turn then to the second limb of this ground of appeal that the finding of guilty cannot be supported having regard to the evidence.
[67] This aspect relates to the appellant’s evidence that he believed that he was permitted to use real knives for “show and tell” and role-playing demonstrations but that he would not use them for demonstrating offensive techniques. For completeness, we set out his evidence in this regard:
Q. Now, on course 375 it’s alleged in charge 12 that you used a real
knife during the training to demonstrate offensive techniques?
A. Offensive techniques?
Q. Yes, offensive techniques, that’s the specific charge?
A. That would be – I would deny that, sir. The only time I use knives is for demonstration and role-play, and also for show and tell.
Q. There is a similar allegation made in respect of 376, that you used a real knife during CQB training to demonstrate offensive techniques?
A. Not offensive techniques, sir. I would certainly not use it for that.
But definitely with demonstration and role-play, yes, and again show
and tell, it’s what I commonly do. But again I don’t recall thoseparticular instances from those particular recruit courses.
[68] The appellant also gave evidence of what he meant by “show and tell”.
Q. What is “show and tell”?
A. Show and tell, I may bring out a selection of knives, or whatever the case is, to show to the recruits, and I would normally do that at the end of a short-edged weapon disarming phase which usually happens on day two, just to give them a bit of an indication as to the sorts of things that they may come across, that they may see, when they’re out training or in a volatile situation.
[69] However in relation to the allegation that the appellant used a real knife
“during the change to demonstrate offensive techniques” the appellant said:
Q. Offensive techniques, no, but definitely for show and tell I do, and under demonstration and role-play circumstances I do and have done. Can I just explain that. Demonstration and role-play is done in slow time with big exaggerated movements, talked the whole way through, and would be done with my assistant instructor normally.
[70] On the basis of the appellant’s denial that he used a real knife to demonstrate offensive techniques on the CQB training course with the recruits, there was not a live issue at trial, that an honest belief was held by the accused in these circumstances. His denial was not accepted by the military members and the use of real knives in demonstrating offensive techniques was not permitted by the relevant documentation, prohibiting such use.
[71] We find that both the first and second limbs of the second ground of appeal against conviction of the charge under s 73(1)(a) fail.
Appeal against sentence
[72] The appellant was sentenced on the three charges by the Court Martial to reduction in rank from Staff Sergeant to Sergeant; 12 months stay of seniority; and a severe reprimand to be entered on his record.
[73] In his sentencing notes, Judge Taumaunu emphasised that Sergeant Roberts has learnt his lesson from this experience and that the risk of his repeating this type of offending in the future has been reduced as a result of the finding of the Court Martial. The Judge added that Sergeant Roberts has impressed the Court Martial by the evidence given as to his “professionalism, his standard of expertise in CQB, and in physical training”, other than the three discrete matters that have been proved. The Judge emphasised that the appellant is a highly competent CQB instructor and physical training instructor and he still has a great deal to offer the Defence Force.
[74] The Court Martial assessed that the sentence arrived at, adequately reflects the least severe outcome appropriate in the circumstances of the case.
[75] The appellant appeals against the sentence imposed. The appellant intends to return to the Army, as he took up employment outside of the Army, following the complaints made about him.
[76] On an appeal to this Court against sentence, the provisions of s 9AB of the
Court Martial Appeals Act 1953 provides:
On an appeal to the court against sentence, the court must—
(a) do either of the following if it thinks that a different sentence should have been imposed:
(i) 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
(ii) vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it; or
(b) dismiss the appeal in any other case.
[77] The wording of s 9AB mirrors the wording of s 251 Criminal Procedure Act
2011. To justify appellate intervention on appeals against sentence, the test to be
applied is whether the sentence is “manifestly excessive”. This test has been applied to previous Courts Martial appeals against sentence.21
[78] Court Martial sentencing principles are contained in the Armed Forces Discipline Committee Sentencing Guidelines.22 These were canvassed by Collins J in Manning v R,23 in which he observed that the Sentencing Guidelines recognise that in the context of military disciplinary proceedings, certain sentences may need to be imposed that would not be contemplated in civilian proceedings. In finding the sentence imposed by the Court Martial was “manifestly excessive,” the Court had
regard to the applicable threshold test for sentence appeals as explained by the Court of Appeal in R v Monkman:24
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) …
[79] The Sentencing Guidelines provide a punishment range for the offence of ill- treatment (lower rank) of reduction in rank (non-commanding officers), reprimand and/or fine (up to 28 days pay).25
[80] The reduction in appellant’s rank resulted in a loss to the appellant of $20,000 a year. Having served 28 years in the Defence Force, the appellant was entitled to a clasp to the good conduct medal. We were informed from the Bar, this is unlikely to be awarded and is an additional “loss of face” for the appellant. We have considered the evidence carefully and taken into account the convictions for the three charges.
[81] We have also taken into account that there was considerable delay between the incidents which arose in September and October 2014 and the making of the complaints in November 2014, and the laying of the charges before the Court Martial
on 12 April 2016 and the hearing which commenced on 4 July 2016. The appellant
21 Eg. R v Manning [2015] NZHC 936 (CMAC); R v McCartin [2016] NZHC 2133 (CMAC).
22 Defence Force Order 14/2011, Armed Forces Disciplinary Committee Guidelines, 18 January
2012; issued pursuant to the Defence Act 1990, s 27.
23 Above n 21.
24 R v Monkman CA 445/02, 3 March 2003 at [6].
25 New Zealand Defence Force Manual of Armed Forces Law: Commander’s Handbook on
Military Law (2nd ed) DM 69 Vol 2 at 1 – 19.
accepted that the summary trial was adjourned for two months, to enable him to obtain legal representation. During 2015 however, an investigation into Defence Force training techniques was undertaken, with the army conducting an inquiry into the techniques of basic CQB training. This led to the appellant not being charged until February 2016, following a second interview in the same month.
[82] We consider that the appellant’s reduction in rank and severe reprimand was an appropriate penalty, to meet the requirements of deterrence and denunciation of conduct of this nature by a senior instructor involving new and junior recruits. The additional penalty of a 12 month stay of seniority however, cumulative upon the reduction of rank and the severe reprimand, renders the sentence manifestly excessive. For that reason, we allow the appeal against sentence in part. The appellant’s sentence is varied to a reduction in his rank from Staff Sergeant to Sergeant and a severe reprimand.
The result
[83] The appeal against conviction is dismissed.
[84] 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.
Cull J
For the Court
Solicitors:
Defence Legal Services, Wellington
Counsel:
S J Taylor, Masterton
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