R v STEWART [2022] NZCA 280

R v STEWART [2022] NZCA 280 [30 June 2022]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011 AND S 145 OF THEARMED FORCES DISCIPLINE ACT 1971.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA425/2021[2022] NZCA 280BETWEEN THE QUEENApplicantAND BENJAMIN SCOT STEWARTRespondentCourt: Kós P and Cooper JCounsel: L M Ferris for ApplicantM R Bott for RespondentJudgment:(On the papers)30 June 2022 at 3 pmJUDGMENT OF THE COURTThe application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] This is an application by the Director of Military Prosecutions to bring a secondappeal from a decision of a Court Martial. We have however concluded the proposedappeal is now moot and does not in any case raise a question of sufficient general orpublic importance for this Court to consider. Accordingly, we decline leave to appeal.[2] Former Signaller Stewart, the respondent, pleaded guilty to three charges ofindecent assault and a charge of behaving in a disgraceful and indecent manner.1He was sentenced by the Court Martial to dismissal from Her Majesty's service andsix months' detention in the New Zealand Defence Force's (NZDF) ServicesCorrective Establishment (SCE). He was also ordered to pay compensation to thecomplainant of $3,000.2[3] The respondent appealed his sentence to the Court Martial Appeal Court(CMAC). The CMAC allowed the respondent's appeal in June 2021. It quashed thesentence and substituted one of four months' detention only. It did not disturb thecompensation order.3[4] In July 2021 the Director applied for leave to appeal to this Court. A directionwas made in August 2021 that leave and the substantive appeal be heard together by aFull Court. However, in December 2021 the respondent was discharged from theNew Zealand Army following an administrative retention review of his continuedservice in light of his conduct.[5] In March 2022 we revoked our earlier direction and required writtensubmissions on leave only. In light of those submissions, we make three points.[6] First, the immediate consequence of the Army's action in December is that therespondent is now a civilian, no longer employed by the armed forces, and no longersubject to the Armed Forces Discipline Act 1971. The Army has waived his reserveliability, whereby he might have remained subject to that Act.4 Canadian authoritiescited on behalf of the Director have little relevance given the different statutoryframework, involving express continued exposure to penalty, under s 69 of theNational Defence Act RS C 1985 c N-5. If the difference poses a difficulty forNew Zealand armed forces discipline, it may well be thought the most appropriateanswer lies in parliamentary amendment to the Act.1 Crimes Act 1961, s 135; and Armed Forces Discipline Act 1971, s 42(b). The Crimes Act chargesare brought into the military jurisdiction by s 74(1) of the Armed Forces Discipline Act.2 R v Stewart [2020] NZCM 2226 [Court Martial decision].3 Stewart v R [2021] NZHC 1404 (CMAC) [CMAC decision].4 We do not consider ss 18 and 20 of the Act are applicable here.[7] Secondly, as Mr Bott submitted, by its action dismissing the respondent, theArmy has removed the ability of this Court to alter, in the manner sought, the verydecision the Director seeks to appeal. The primary ground of appeal proposed is thatthe CMAC erred in overturning the Court Martial's decision to dismiss the respondentfrom Her Majesty's service. It was said this involved the misinterpretation andapplication of the Sentencing Guidelines of the Armed Forces Discipline Committee,5and the imposition of a manifestly inadequate sentence. The last point is the substanceof the secondary ground proposed. However, the action of the Army in December2020 precludes the imposition by this Court of any different sentence on therespondent, and effectively confines its role to the provision of advice only.The impact of the appeal on the respondent now is nil, barring perhaps some verymarginal revision of his record. The proposed appeal is moot.[8] Thirdly, while mootness might not be fatal to the application for leave,6 thequestion remains whether the criteria for leave implicit in s 10 of the Court MartialAppeal Act 1953 are met. That is, as the Director properly conceded, whether aquestion of sufficient general or public importance is raised for this Court to consider.We reserve for future consideration whether the alternative, miscarriage ground unders 237(2)(b) of the Criminal Procedure Act 2011 might also apply.[9] The proposed appeal is intensely fact-specific. On the primary ground referredto at [7] above, the Director submits the CMAC (1) misdirected itself on the approachrequired of appellate courts considering appeals against sentence imposed by theCourt Martial, (2) mischaracterised the seriousness of the offending and (3)misapplied the Sentencing Guidelines of the Armed Forces Discipline Committee withregard to when it is realistic and tolerable to retain an offender as a member of theArmed Forces. The second of these is wholly fact-specific and raises no issue ofgeneral or public importance. The first and third are more general in nature, but theirapplication here was highly context-specific. In sum, we do not consider the proposedappeal raises a question of sufficient general or public importance this Court should5 The Sentencing Guidelines are issued in the New Zealand Defence Force Manual of Armed ForcesLaw (2nd ed, DM 69, 2016) vol 2 at Ch 1, Annex B.6 Attorney-General v Smith [2018] NZCA 24, [2018] 2 NZLR 899, at [22]–[28].consider. Rather, these limited questions of general application should bereconsidered, if at all, in a future, live appeal.Result[10] The application for leave to appeal is declined.Solicitors:Director of Military Prosecutions, Wellington for Applicant