MANNING v THE QUEEN [2015] NZHC 936

MANNING v THE QUEEN [2015] NZHC 936 [30 April 2015]IN THE COURT MARTIAL APPEAL COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2015-485-000120[2015] NZHC 936UNDER The Court Martial Appeals Act 1953BETWEEN PHILLIP JOHN MANNINGAppellantAND THE QUEENRespondentHearing: 30 April 2015Court: Collins J, Judge Billington QC, Judge McGregorCounsel: P L Murray for AppellantLieutenant Colonel M K Hill and Captain M J McGrath forRespondentJudgment: 30 April 2015Reasons: 6 May 2015JUDGMENT OF THE COURTIntroduction[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 sevencharges of doing an act likely to prejudice service discipline2 and one charge of1 Formerly Bombardier.2 Armed Forces Discipline Act 1971, s 73(1)(a). Maximum penalty is two years' imprisonment.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'sService.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 prosecutorsrecognised their responsibilities as "ministers of justice"5 and in doing sorecommended 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 ProsecutionGuidelines, 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'soffending 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-commissionedofficers' (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 dutyNCO's barrack room.(7) Between 21 May 2012 and 25 May he received oral sex from PrivateB 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 sixmonths' 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 tothis aspect of its decision:(1) First, almost all of Gunner Manning's offending took place when hewas on duty.(2) Second, a lot of Gunner Manning's offending occurred when he wasin 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 sentencesimposed in comparable cases. Nor did the Court Martial place any weight onGunner 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 acknowledgedGunner 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.7Grounds 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 asentencing starting point " it is important to consider previous sentences that have8 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 65.10 Defence Force Order 14/2011, above n 8, at A-2.11 At A-3.been imposed in similar cases".12 The Sentencing Guidelines also explain that "thesentence must take into account the desirability of consistency with appropriate sentencing levels and other outcomes in respect of similar offenders committingsimilar offences in similar circumstances".13[27] Mitigating factors relating to an offender are also addressed in the Sentencing Guidelines in the following way:14Once 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 mentionedin 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'sService 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-8.15 At A-8.16 At A-9.[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 punishmentthat can be imposed on an offender, followed by dismissal from Her Majesty'sService, 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 cases17 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).19 Schedule 2(2).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 Thecircumstances of the offending in that case were quite similar to Gunner Manning's offending. Corporal Kennett's offending largely related to his inappropriate conductwith 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 thesentence that was quashed"; or(2) "vary, within the limits warranted in law, the sentence or any part of itor 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'sdecision.22 The primary focus of our inquiry was on whether or not the sentenceimposed was "manifestly excessive".[41] The term "manifestly excessive" was explained by the Court of Appeal in R v Monkman:23Whether 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 find21 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 wassentenced 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 pointof 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 discountreflects 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 grosslybreached 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 afterwhich he is dismissed from Her Majesty's Service.Signed on behalf of the Court________________________D B Collins JSolicitors:P L Murray, Barrister and Solicitor, Palmerston North for AppellantThe Director of Military Prosecutions, Wellington for Respondent