r v murfitt judgment

8/8/2019 R v Murfitt Judgment

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R v Murfitt CMAC WN CIV-2010-485-1995 [15 December 2010]

IN THE COURTS MARTIAL APPEAL COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CIV-2010-485-1995

UNDER the Court Martial Appeals Act 1953

IN THE MATTER OF an appeal by the Director of Military

Prosecutions

BETWEEN THE QUEEN

Appellant

AND PRIVATE HIRINI STEPHEN MURFITT

Respondent

Hearing: 24 November 2010

Court: MacKenzie J (President)

Clifford J

Judge D McGregor (appointed member)

Appearances: Commander C Griggs and Lieutenant K R Ashton for the appellant

A Isac and E Jenkins for the respondent

Judgment: 15 December 2010

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Clifford J)


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Introduction

[1] On 24 September 2010 Private Murfitt, the respondent, was convicted by theCourt Martial of New Zealand of five counts of committing a civil offence contraryto s 74(1) of the Armed Forces Discipline Act 1971, namely:

a) one count of injuring with intent contrary to s 189(2) of the CrimesAct 1961; and

b) four counts of common assault contrary to s 196 of the Crimes Act.[2] Private Murfitt was sentenced to six months detention at the ServiceCorrection Establishment, a reduction in rank from lance corporal to private with

seniority from 23 August 2008, and a severe reprimand.

[3] Pursuant to s 9(2) of the Court Martial Appeal Act 1953, the Director ofMilitary Prosecutions (the Director) now appeals against the sentence imposed by

the Court Martial. The Director advances a number of grounds of appeal, the

principal onebeing that Private Murfitts sentence was manifestly inadequate.

[4] This is the first appeal by the Director against a sentence imposed by theCourt Martial of New Zealand. Prior to the coming into force of various

amendments to the Armed Forces Discipline Act on 1 July 2009 as part of an overall

revamp of military law in New Zealand, the Director had no right of appeal against

decisions of Courts-Martial.

Facts

[5] On the evening of 21 May 2009 an altercation took place in Palmerston Northbetween members of the 1

stBattalion of the Royal New Zealand Infantry Regiment.

It would appear that privates from A Company assaulted non-commissioned officers

from Support Company, of which Private (then Lance-Corporal) Murfitt was a

member. Private Murfitt and a co-offender decided to go to Linton Military Camp to

identify who had been responsible for the assaults on their colleagues.


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[6] Private Murfitt, together with his co-offender, entered the barrack rooms ofsleeping soldiers where he assaulted Trooper Hall, Private Wikiriwhi, and

Troopers Taivairanga and Watson. Trooper Watson was then taken from his room to

another barracks for the purpose of identification by an alleged victim.

Private Murfitt took Trooper Watson out onto the landing of the barracks.

Private Murfitt interrogated Trooper Watson as to who had been involved in the

incident. Private Murfitt told Trooper Watson that if his questions were not

answered, violence would be the result. When Trooper Watson did not provide the

information sought, Private Murfitt struck a hard blow to the face of

Trooper Newman, who was a comrade of Trooper Watson and who was standing

nearby. Trooper Newman was present because he was concerned for the safety of

his friend, Trooper Watson. Private Murfitt repeated his questions. When

Trooper Watson was unable to respond, Private Murfitt again struck

Trooper Newman. This was repeated a third time. Private Murfitts third punch

rendered Trooper Newman unconscious. Trooper Newman fell down steps below

the landing onto another concrete landing below.

[7] Trooper Newman suffered severe injuries. He required three weeks inPalmerston North Hospital and three weeks in New Plymouth Hospital, where he

underwent surgery and had a titanium plate inserted into part of his face. There were

concerns that his injuries would have a permanent effect on his military career. By

the time of the hearing of this appeal, the Director was able to advise the Court that

Trooper Newman has recovered from his injuries and that they will not affect his

military career, in particular his selection for training for the Counter-Terrorist

Tactical Assault Group.

Sentence

[8] Private Murfitts Court Martial took place during the week of Monday,20 September to Friday, 24 September.

[9] Private Murfitt faced seven charges in all. These were:a) kidnapping of, and assault on, Trooper Watson;


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b) injuring Trooper Newman with intent to injure; andc) assaults on each of Private Wikiriwhi, and Troopers Taivairanga and

Hall.

[10] On 10 September 2010 Private Murfitt had made a written request to pleadguilty to the charges of assault on Trooper Watson, and injuring Trooper Newman

with intent to injure him. Those guilty pleas were formally recorded at the outset of

the Court Martial.

[11] At the conclusion of the trial phase, Private Murfitt was acquitted on thecharge of kidnapping Trooper Watson and found guilty on the charges of assault on

Private Wikiriwhi and Troopers Taivairanga and Hall. He was therefore to be

sentenced on the five charges already referred to. The Court Martial returned its

verdicts shortly before 10.00pm on the evening of Thursday, 23 September. The

Court Martial reconvened at 9.00am on the morning of Friday, 24 September for the

purpose of sentencing.

[12]

In delivering the sentence of the Court Martial on Private Murfitt,Judge Blackie who, together with military members Major Edmonds,

Captain Ricketts and Warrant Officer Hannah constituted the Court Martial, first set

out the facts involved in Private Murfitts offending. The Judge referred to the

altercation in Palmerston North, Private Murfitts decision to go back to Linton

Camp to identify the culprits, the way in which Private Murfitt and his co-offender

had gone through various barracks, and the assaults that took place. The Judge then

set out the facts relating to the incident in which, in the course of questioning

Trooper Watson, Private Murfitt punched Trooper Newman. The Judge noted that

Private Murfitt had not himself been involved in the events in Palmerston North, but

that he considered he had some right to carry out what the Judge described as a

most informal type of investigation on account of his rank. The Judge records that

Private Murfitt was, at the time, in civilian clothes and suffering from a degree of

intoxication.


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[13] The Judge then stated that in sentencing Private Murfitt he was to apply theprinciples of the Sentencing Act 2002. In terms of the principles found in the

Sentencing Act, the Judge considered that those which require the Court to hold an

offender accountable, to deter the offender and others from engaging in such conduct

and to denounce an offenders behaviour, were especially relevant.

[14] Referring to the now accepted sentencing methodology whereby a Judge firstidentifies a starting point sentence which responds to the criminality of the offending

in question, before taking account of aggravating or mitigating factors relating to an

offender him or herself, the Judge identified the gratuitous nature of the violence

involved, and the blows to the head as being aggravating factors. As had been

submitted by the prosecution, and Private Murfitts counsel, the Judge accepted that

the Court of Appeal decision in R v Harris provided guidance for violent offending

of this type.1

With reference toR v Harris, the Judge considered that a starting point

sentence in the vicinity of two years imprisonment was appropriate for the

offending against Trooper Newman. Taking account of the four other assaults on

which Private Murfitt had been convicted, the Judge uplifted that starting point to

one of two years and three months imprisonment.

[15] The Director has no criticisms of the Judges sentencing analysis up to thispoint.

[16] Then, in elements of his sentencing decision which the Director doeschallenge:

a) the Judge recorded that, having regard to the mitigating factors ofguilty pleas and good conduct since his offending, the Court Martial

was prepared to give a discount of nine months from the original

starting point of two years and three months, resulting in a starting

point sentence of 18 months; and

b) having regard to the Court Martials decision that Private Murfittshould not be dismissed from Her Majestys Service, and also noting

1 R v Harris [2008] NZCA 528.


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thatin the civilian environment home detention would have been

an available sentence, the Judge advised that the sentence the Court

had determined was that of reduction in rank, six months detention in

the Service Correction Establishment and a severe reprimand.

[17] As will be apparent, quite some time had passed between Private Murfittsoffending and when his Court Martial took place. Before us, Commander Griggs

advised that the Director was concerned about that length of time, and the inevitable

impact it had had on the issues that had to be considered at sentencing. We think

that concern was appropriate.

Grounds of appeal

[18] In his notice of appeal the Director asserted that:a) the Court Martial erred in principle by improperly applying the

Sentencing Act 2002 and the sentencing guidelines issued under s 172

of the Armed Forces Discipline Act;

b) the Court Martial erred in concluding that detention/reduction in rankcould be substituted for a sentence of imprisonment in the

circumstances; and

c) the sentence imposed was manifestly inadequate.

[19]

In addition, at the hearing of this appeal the more general submission wasmade on behalf of the Director that, in the past, Court Martial sentences had on a

number of occasions been too lenient. The Director had not, however, had any right

of appeal to challenge those decisions. This offending involving what might be

called barracks discipline had serious implications for the maintenance of

operational discipline within the Army. Accordingly, this Court should allow this

appeal and impose a sentence which sent a clear message that however such

behaviour may have been treated by Courts Martial in the pastviolence by soldiers

against each other, and in particular we took it by non-commissioned and


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commissioned officers against other ranks pursuant to what might be called

barracks discipline, was simply not to be tolerated. In effect, a significant

deterrent sentence was asked for by the Director, one whichwe clearly inferwas

to be considerably more severe than those which may have been imposed for similar

offending in the past.

[20] We will discuss each of the Directors specific points on appeal, and thatmore general submission, in turn.

[21] We think, however, that it is helpful to first record some observations on thenature of an appeal such as this.

Jurisdiction

[22] The Directors right of appeal is provided by s 9(2) of the Armed ForcesDiscipline Act. As noted, prior to the coming into force of that section on 1 July

2009, the Director had no right of appeal against Court Martial sentences.

[23] Those sentenced had the right, pursuant to s 6 of Court Martial Appeal Act,to apply for leave to appeal to this Court against their conviction. On such an appeal,

a sentence could only be changed in specified circumstances, namely:

a) it could be adjusted pursuant to s 9, where the appeal againstconviction was partially successful and the sentence exceeded the

maximum penalty for the remaining convictions;

b) it could be substituted pursuant to s 9A and s 9B where the Court,instead of allowing or dismissing an appeal, substituted a conviction

for another offence or varied the conviction; and

c) it could be varied pursuant to s 9C where, on appeal againstconviction, the Court was satisfied that the facts proved in evidence

differed from those alleged in the particulars of the charge, but the

conviction was nevertheless justified on that evidence.


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[24] There are a number of cases in which this Court applied s 6.2 None of thosecases are of particular help in determining appeals under the new s 9.

[25] Section 9, as relevant, now provides:(1) A person convicted by the court martial may appeal to the court

against

(a) the conviction; or

(b) the sentence imposed for the conviction (unless the sentence is

one fixed by law); or

(c) both.

(2) The Director of Military Prosecutions may appeal to the court againstthe sentence imposed by the court martial, unless the sentence is one

fixed by law.

[26] Section 9 generally follows the structure of s 383 of the Crimes Act 1961,which provides for appeals against conviction or sentence in the civilian jurisdiction.

The right of appeal provided to the Director is, in our view therefore, to be seen as

being similar to the right of appeal provided to the Crown by the Crimes Act, noting

that the Solicitor-General may only exercise that right of appeal with the leave of the

Court appealed to.

[27] As submitted by the Director and accepted on behalf of Private Murfitt, weconsider that the approach to be taken by this Court on appeals by the Director-

General under s 9(2) should be that taken by the Court of Appeal on Crown appeals

under s 363(2). That is, and as confirmed by the Court of Appeal inR v Pue:3

This Court should not consider increasing a sentence [on a Crown appeal]

unless either on a review of the facts and circumstances it [is] clearly of [the]

opinion that the sentence imposed was manifestly inadequate, or the Crown

is able to point to some error in principle into which the sentencing judge has

fallen.

[28] Furthermore, we note the view expressed by Cooke P in R v Cargill, whichthe Director adopted:

4

2 R v Crotty (1959) 1 NZCMAR 19; R v Jamieson (1994) 1 NZCMAR 195 and R v Thompson

(1981) 1 NZCMAR 86.3 R v Pue [1974] 2 NZLR 392.

4 R v Cargill [1990] 2 NZLR 138. 140.


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Appeals by the Crown against sentence are not for borderline cases. Their

legitimate scope is confined to cases where there is solid ground for treating

the sentence as manifestly inadequate or inappropriate. The right of a

sentencing judge to show mercy in the special circumstances of a particular

case must always be borne in mind. But if a sufficiently clear case is made

out by the Crown this Court will increase a sentence, regrettable though it is

to have to add to punishment once it has been imposed on an offender.

[29] We also received, during the course of the hearing, submissions from theDirector on the distinct nature of the jurisdiction of this Court, being the Court

Martial Court of Appeal when hearing appeals from sentences imposed by the Court

Martial. The particular issue raised is the relevance for this Court of sentences

imposed in the civilian jurisdiction for similar offending to that for which the Court

Martial may have imposed sentence. Whilst the Armed Forces Discipline Act

creates a number of purely military offences, here Private Murfitt was charged by the

military legal system with a civilian offence.

[30] This being the first sentence appeal under the Court Martial Appeal Act, thisissue has not previously been considered by a Court in New Zealand. Some general

guidance on this matter may be found in a number of decisions of the Courts-Martial

Appeal Court of the United Kingdom, which discuss the general relationship

between military and civilian sentencing on a number of occasions. In this context,

we think it is helpful to cite the observations of the English Courts-Martial Appeal

Court inR v Love.5

There Simon Brown LJ commented on what was then the new

appellate jurisdiction in the United Kingdom similar to that which is given to this

Court by s 9:

In the present case of appeal therefore it seems to us that this court is

exercising a somewhat hybrid jurisdiction and that whilst free and clearly

intended by Parliament to correct any injustice which we perceive in a court-martial sentence, we must nevertheless be mindful that those imposing and

confirming such sentences are, generally speaking, better placed than we are

when it comes to assessing the seriousness of offending in the context of

service life, and deciding upon what particular penalty is required to

maintain the discipline and efficiency of the Armed Forces.

[31] Against that background, we will discuss the individual grounds of appealraised by the Director.

5 R v Love [1997] CMAC No. 975188/S2, [1998] 1 CR App R 458 CMAC.


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Error in principle relevance of the sentencing guidelines issued under s 162 of

the Armed Forces Discipline Act and of the Sentencing Act

[32] Under this ground of appeal, the Director contended that the Court Martialerred in failing to address the relevance and application of the sentencing guidelines

that, at the time of Private Murfitts court martial, had been produced by the body

known as the Discipline Committee. The Director also contended that the Court

Martial erred when, at page 625 of the record, the Judge stated:

The Court has to apply the principles of the New Zealand Sentencing Act

which applies to all sentencing procedures throughout the country and now

specifically to Courts Martial.

[33] When the Court Martial Appeals Act was amended to provide for generalrights of appeal against sentence, the Armed Forces Discipline Act also underwent

significant amendment. At the same time the Court Martial Act 2007 was enacted to

provide for the establishment of the Court Martial, as a permanent court of record

and as a replacement for the ad hoc Courts-Martial which had previously been

provided for under the Armed Forces Discipline Act.

[34] That legislative package gave effect to a number of major reforms to NewZealands military justice system. One important element of those reforms was the

establishment, pursuant to s 160 of the Armed Forces Discipline Act, of the Armed

Forces Discipline Committee, thereafter referred to in the Armed Forces Discipline

Act as the Discipline Committee. The purpose of the Discipline Committee is to

produce sentencing guidelines for offences under the Armed Forces Discipline Act

in order to ensure consistency in the sentencing practice of the Court Martial (s 161).

To that extent, the Discipline Committee performs a similar role as that which was to

have been performed by the Sentencing Council, then to be established under the

Sentencing Council Act 2007. We note that although the Sentencing Council Act

2007 was enacted, the Government determined not to establish the Sentencing

Council itself.

[35] Under s 65 of the Court Martial Act, the Court Martial must pass a sentencethat is consistent with any sentencing guidelinesthat are relevant in the offenderscase, unless the Court Martial is satisfied that it would be contrary to the interests of


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justice to do so. The phrase sentencing guidelines means sentencing guidelines

produced by the Discipline Committee and published by the Chief of Defence Force

as Defence Force Orders) (emphasis added).

[36] As regards the relevance of the sentencing guidelines, the first ground ofappeal was:

(a) The Court Martial erred in principle by improperly applying the

Sentencing Act 2002 and the Sentencing Guidelines issued under

s 162 of the Armed Forces Discipline Act 1971.

[37] In his written submissions, the Director conceded that the Court Martial wasnot bound to pass a sentence that was consistent with the abovementioned

Sentencing Guidelines. The appellant therefore will not rely on the ground relating

to those Guidelines stated in its notice of appeal of 12 October 2010. For Private

Murfitt, Mr Isac had in his written submissions responded to this ground of appeal

on the basis that the appellant was contending that the Director should not have, but

did, take account of the sentencing guidelines.

[38] Be that as it may, at the hearing of this appeal, the Director conceded that, asthe Chief of Defence Force had not actually published the sentencing guidelines that

the Discipline Committee had produced, the Court Martial did not err in not

explicitly referring to those guidelines when imposing sentence. Furthermore, the

Director also conceded that whilst technically the Sentencing Act does not generally

apply to sentences imposed by the Court Martial, reference to and reliance on the

purposes and principles of sentencing set out in the Sentencing Act had not, in this

case, involved any error of principle. Nevertheless the Director sought a declaration

from this Court, pursuant to s 4(6) of the Court Martial Appeals Act, that the Court

Martial did err in law when it observed that it was to apply the principles of the

Sentencing Act.

[39] We accept, as correct, the Directors concession as regards the technicalrelevance of the sentencing guidelines at the time of Private Murfitts Court Martial,

noting that the prosecutor had considered those guidelines to be relevant and had

drawn the attention of the Court Martial to them. We also acknowledge that,pursuant to s 3(1A) of the Armed Forces Discipline Act, only s 6 and ss 102 and 104


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of the Sentencing Act apply directly to sentences passed under the Court Martial Act.

Having said that, we think it is appropriate to record the close relationship between

the sentencing guidelines, as they have now been published by the Chief of Defence

Force as Defence Force Orders, and the Sentencing Act.

[40] Section 162(2) of the Armed Forces Discipline Act provides that inperforming its functions, the Discipline Committee must ensure that any sentencing

guidelines it produces are, to the extent that it is applicable, consistent with the

Sentencing Act. Accordingly, in setting out the purposes and principles of

sentencing within New Zealands military justice system, the sentencing guidelines

adopt the purposes and principles enunciated in ss 7 and 8 of the Sentencing Act

respectively, with only minor modification. Similarly, where the sentencing

guidelines identify aggravating and mitigating features relating to the offending and

offender, they adopt the aggravating and mitigating factors identified in s 9 of the

Sentencing Act, again with little modification other than in terms of the now

orthodox approach to sentencing separately identifying those that relate to the

offending, and those factors that relate to the offender personally.

[41] This is not surprising because, as the Director acknowledged, in addition tothe direction contained in s 162(2) it is to be remembered that the Sentencing Act

generally codifies the common law.

[42] Beyond that, the sentencing guidelines identify what are called New ZealandDefence Force (NZDF) specific considerations.

[43] Other aspects of the sentencing guidelines reflect elements of the sentencingprocess that had been developed by the courts. These include the Taueki sentencing

methodology, and the significance for a sentence of a plea of guilty.6

On the latter

point, the sentencing guidelines follow the Court of Appeals decision in Hessell

which has recently been successfully challenged in the Supreme Court.7

The

sentencing guidelines may, to that extent, now require some amendment.

6 R v Taueki [2005] 3 NZLR 372 (CA).

7 Hessell v R [2010] NZSC 135.


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[44] The sentencing guidelines also provide a range of specific sentencingguidelines for a range of offences under the Armed Forces Discipline Act which may

be prosecuted summarily. The sentencing guidelines do not provide specific

guidelines when offending has been prosecuted before a Court Martial.

[45] Therefore, whilst the Judge may have, in theory and with reference to s 3(1A)of the Armed Forces Discipline Act, erred when observing that the Court Martial

was to apply the principles of the New Zealand Sentencing Act, that was a

technical error only and did not involve any substantive error of law or principle.

We note, moreover, that the Court Martial applied those general principles in the

military context, as it was required to do. As the Judge observed, the matter which

occasioned the most concern for the Court Martial was one of the NZDF specific

factors, namely whether Private Murfitt should stay in the Army. The Court Martial,

in considering that matter, referred specifically to the questions of whether the

NZDF could tolerate inclusion within its ranks of a person who acted in the way

Private Murfitt did and whether Private Murfitts offending was totally inconsistent

with the ethos and values of the NZDF, so that his removal from the Service would

be the least restrictive and appropriate punishment. The Court Martial also

explicitly recorded its consideration of the issue of whether or not Private Murfitt

was a person who was fit to command others. Put simply, was Private Murfitt fit to

remain within the Service?

[46] We do not consider, therefore, that any declaration of the type sought by theDirector would be appropriate.

[47]

Moreover, we note for the record that it is not clear to us that s 4(6) of theCourt Martial Appeals Act provides for such declarations. Section 4(6) is to the

following effect:

The court [the Court Martials Appeal Court] shall be a superior court of

record and shall, for the purposes of and subject to the provisions of this Act,

have full power to determine, in accordance with this Act, any question

necessary to be determined for the purpose of doing justice in any case

before the Court.

[48] The Court Martial Appeals Act now provides for:


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a) appeals against decisions of the Court Martial relating to bail (s 6);b) with the leave of this Court, appeals against rulings given by Judges

of the Court Martial on questions of law or procedure that arise during

proceedings in that Court (ss 7 and 8);

c) appeals against conviction or sentence by persons convicted, andagainst sentences by the Director, pursuant to s 9.

[49] We have more than a little difficulty, given that scheme of the Court MartialAppeals Act, in interpreting s 4(6) as providing for some separate form of

declaratory judgment regime of the type that the Director would appear to have

considered it provides. Rather, in our view, s 4(6) is designed to provide this Court

with appropriate powers to determine questions which come before it in terms of

those provisions of the Court Martial Appeal Act.

Substitution of detention for imprisonment

[50] The Directors second ground of appeal involved the contention that theCourt Martial erred when, having concluded that to use its words a sentence of

18 months imprisonment is what Private Murfitt could have expected, it

nevertheless concluded that a sentence of six months detention in the Service

Correction Establishment was the appropriate sentence. As we understood the

Directors submission, his challenge here was more directed to the type of sentence,

rather than its length.

[51] The Director said that in reaching its conclusion as to the type of sentence tobe imposed, the Court Martial had made two errors. These were:

a) First, it had operated on the assumption that a sentence ofimprisonment imposed on a soldier, as opposed to an officer,

necessarily involved the dismissal of the soldier from Her Majestys

Service. As s 82 of the Armed Forces Discipline Act makes plain,

that is not the case.


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b) The Court Martial also erred by referring to the fact that a personsentenced to 18 months imprisonment in the civilian jurisdiction

might be sentenced to home detention, instead of imprisonment.

[52] As regards the first of these matters, the Director conceded that the CourtMartial may well have been misled by the prosecutor in this respect. The

prosecutors oral submissions indicated that removal from the Service was a

necessary consequence of a sentence of imprisonment. The written memorandum

provided by the prosecutor to the Court Martial contained a similar submission. To

the extent that the Court Martial may have been influenced to impose a sentence of

detention, as opposed to imprisonment, by that erroneous submission we do not

think the Director can here rely on any error of law of the Court Martial itself.

[53] As regards the second matter, the Director is clearly correct to say that homedetention is not an available sentence under the Armed Forces Discipline Act The

range of sentences available to a Court Martial are listed in the Second Schedule to

the Armed Forces Discipline Act. Home detention is not one of those sentences.

We do not think, however, that the reference to the sentence of home detention, and

the Court Martials acknowledgement that a person sentenced to 18 months

imprisonment in the civilian jurisdiction would be considered for home detention, is

an error of principle or law on the part of the Court Martial.

[54] In our view it is not inappropriate for the Court Martial, when considering therelevance of sentences that might be imposed in the civilian jurisdiction for

sentencing exercises being conducted under the Armed Forces Discipline Act, to

have regard to all relevant implications of a particular sentence. It is a fact that,where a Court would otherwise sentence an offender to a short-term sentence of

imprisonment one of 24 months or less the Court may impose a sentence of

home detention. Moreover, the sentence of home detention a New Zealand Court

will impose is generally equal to one half of the term of the sentence of

imprisonment that it would otherwise have imposed. In our view, all the Court

Martial was doing was recognising the reality of sentencing in the civilian

jurisdiction, before moving to consider what the appropriate sentence was in the

military jurisdiction.


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[55] We note that, in the course of the prosecutors sentencing submissions, theJudge raised with the prosecutor the availability of home detention in the civil

jurisdiction and asked whether the prosecutor had any submissions on any analogy

that could be made to deal with someone in the military jurisdiction other than by

way of imprisonment, but by way of detention at the Service Correction

Establishment. The prosecutor responded by noting that there was no mechanism for

home or community detention within the military, and the Service Correction

Establishment was a correctional establishment, and not equivalent to home

detention. In that context, it is interesting to observe that in R v Christopher

Andrews the United Kingdom Courts-Martial Appeal observed that the English

legislation:8

does not include any community penalties, for obvious reasons. Thenearest that it gets to that situation is the detention sentence which, although

it involves an element of loss of freedom, also includes elements of training

which are intended to be remedial in the same way as various community

penalties are designed to be.

[56] It would not appear that detention in the Service Correction Establishmentinvolves re-training programmes of the type that would appear to exist in the

equivalent United Kingdom establishment. Nevertheless, such detention is aimed ata return to active duty in a way that imprisonment is not. These considerations

confirm our view that it was not inappropriate for the Court Martial to refer to the

sentence of home detention available in the civil jurisdiction.

Sentence manifestly inadequate

[57] We turn now to the Directors central ground of appeal, namely that thesentence of reduction in rank, six months detention in the Services Correction

Centre and a severe reprimand was manifestly inadequate.

[58] The Directors submissions here were, in summary, that:a) The Judge correctly determined a notional starting point for

Private Murfitts offending of two years and three months.

8 R v Andrews [1998] EWCA Crim 644, CMAC No. 9800600/S2.


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b) The Judge was overly generous in allowing a deduction of a full onethird of that starting point, by reference to the mitigating factors of

Private Murfitts guilty pleas and his good conduct between the time

of offending and the date of sentencing. However, the Director did

not, at the end of the day, argue that a sentence of 18 months

imprisonment would have been manifestly inadequate.

c) However, having arrived at a sentence of 18 months imprisonment,there was no rational basis for the Court Martial then to impose a

sentence of six months detention. That was a non sequitur, one that

had resulted in a manifestly inadequate sentence.

[59] What the Judge said in that part of the Court Martials sentencing decisionwhich was the focus of the Directors challenge is as follows:

... Had you been liable or sentenced to imprisonment for 18 months in the

civilian environment, the way the law is the Court would have to give

consideration to your being instead of imprisoned to a period of home

detention, that is a relatively new type of sentence introduced in 2007.

However, as you have heard this morning it has no application within the

Service environment.

Now, I have to say that what has given this Court the most concern today in

deliberation on sentence is to whether you should stay in the Army. The

Court has to ask itself, can the New Zealand Defence Force tolerate

inclusion within its ranks of a person who has acted in the way that you did,

or does the Court consider that your offending is totally inconsistent with the

ethos and values of the New Zealand Defence Force and that your removal

from the Service would be the least restrictive and appropriate punishment?

A further question that the Court has to ask itself is having committed this

offence are you a person who is fit to command others? And I can tell you

now that that has been the subject of the majority of the debate time that the

Court has had this afternoon. Are you fit to remain within the Service?

The Court has determined largely on account of the evidence that it received

from other officers and senior NCOs this morning that you do have a future

within the Army. ... So, the Court I have to say after considerable discussion

has drawn back from dismissing you from her Majestys Service and isdetermined to impose a penalty which will allow you to remain within the

Service but nevertheless the penalty must still be a significant one.

So, returning to my starting point of two years and three months

imprisonment, converting that to 27 months, reducing it by a third to 18

months, giving consideration to the fact that you might have otherwise

received home detention had you been entirely in a civilian environment, theCourt has determined that the ultimate penalty for you should be as follows:


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you are to be reduced to the rank of Private soldier with seniority from the

23rd

August 2008. You are to be sentenced to detention for a period of six

months in the Service Correction Establishment, and you are to be severely

reprimanded. The implementation of those sentences will follow

immediately after I adjourn the Court later this afternoon. You may now

take one step backwards.

[60] The Director submitted here that the Court Martial had been improperlyinfluenced by its consideration of the significance of a sentence of home detention in

the civil jurisdiction and inferentially to have erroneously reasoned that as a

sentence of nine months home detention may well have been imposed on a civilian

offender, a sentence of six months detention in the Service Correction

Establishment was an appropriate outcome in this case. There was, in the Directors

submission, no rational explanation for the Court Martials decision to move from a

putative sentence of 18 months imprisonment to one of six months detention.

[61] In considering the implication of a period of six months detention, theDirectors further submission was that this Court should also bear in mind the

following aspects of that sentence:

a) In terms of the hierarchy of sentences set out in Schedule 2 of theArmed Forces Discipline Act, detention was only the third most

serious, ranking after imprisonment (the most serious) and dismissal

from Her Majestys Service.

b) Imprisonment would be served in a civilian prison whereas detentionwas generally served at the Service Correction Establishment at

Burnham Military Camp.

c) By reference to Part 8 of the Armed Forces Discipline Act, whichprovides for the reconsideration of sentences of imprisonment or

detention by the Reconsidering Authority (see s 151), and the

provisions of clause 9.4.1 of the Manual of Armed Forces Law, if

Private Murfitt was sentenced to 18 months imprisonment, he would

serve that term less any period remitted by the Reconsidering

Authority. He would not receive pay during the period. If he was

sentenced to 18 months detention, he would ordinarily only serve


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c) Previous Court Martial sentences may be a better guide to theappropriate sentence than civilian decisions. When reference was

made to such sentences, it was arguable that the sentence imposed by

the Court Martial on Private Murfitt was not manifestly inadequate,

but excessive.

[64] In support of his submissions as to the sternness of a sentence of detention,Mr Isac provided an affidavit sworn by Private Murfitt which describes the daily

regime at the Service Correction Establishment. We think that affidavit, the contents

of which were not in any material way disputed by the Director, does confirm that

the regime at the Service Correction Establishment is both stern and tedious.

Private Murfitt is under strict discipline. He has little contact with other people. We

understand he was, for some time, the only person detained at the Service Correction

Establishment. To the extent that there are other detainees, detainees are not allowed

to speak to each other without express permission. Private Murfitt has limited

contact with the outside world, being allowed to use the telephone once each week

for five minutes and to have visitors for 30 minutes each Sunday. Private Murfitt

has, as a matter of fact, only had one visit as his family and girlfriend live some

distance away. In effect, he must ask for permission to undertake most daily

activities. He has a standard daily routine that appears to involve undertaking

domestic work to support the Service Correction Establishment, for example kitchen,

laundry, cleaning and outdoor manual labour. Private Murfitt says that whilst he is a

physically fit man, given Army routine and that he is a sporting person, he is

exhausted by the routine at the Service Correction Establishment. He says that he

feels constantly fatigued and sore throughout the day.

[65] It seems clear that the routine of the Service Correction Establishment isconsiderably more demanding than might be expected in a civilian prison. It goes

without saying that it is a different type of detention altogether than that provided by

sentences of home detention in the civilian environment.

[66] Turning to the core of the reasoning of the Court Martial, as provided by theJudge in his sentencing remarks as set out at [59] above, we think the proper

understanding of that reasoning is as follows:


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a) The Court Martial first concluded that a sentence of imprisonment of18 months would have been the appropriate sentence for

Private Murfitts offending in the civilian jurisdiction. It arrived at

that conclusion from a starting point sentence of two years and three

months imprisonment in recognising the mitigating factors of guilty

plea and post-offending good conduct. We do not read the Judges

sentencing remarks as saying that 18 months was, prima facie, the

appropriate sentence in the military jurisdiction.

b) Rather, having reached that first conclusion, the Court then noted thatit had been most concerned as to whether or not Private Murfitt

should stay in the Army. At that point, it effectively discussed the

NZDF specific sentencing factors set out in the sentencing guidelines,

summed up in the single question Are you fit to remain within the

Service?

c) In our view importantly, at this point the Court Martial then referredto its discussion, as a military tribunal, of that particular issue. In

doing so, it referred to the evidence that the Court Martial had

received, from officers and senior NCOs during the sentencing

hearing, that Private Murfitt did have a future within the Army. At his

sentencing hearing Private Murfitt had received very positive

recommendations from two lieutenants who were his previous and

current platoon commanders, from a regimental police sergeant who

had been involved in the investigation of Private Murfitts offending

and from a sergeant who was a friend of Private Murfitt. The twolieutenants, Lieutenant Dill-Russell and Lieutenant Fisher, both spoke

highly of Private Murfitts commitment to the NZDF core values and

ethos, to the capability he had shown as a non-commissioned officer

and to their willingness to rely on Private Murfitt in combat

operations and in non-operational roles. As the Judge put it, largely

on account of that evidence the Court after considerable discussion

has drawn back from dismissing you from Her Majestys Service and

is determined to impose a penalty which will allow you to remain


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within the Service but nevertheless the penalty still must be a

significant one.

[67] In terms of the significance of a sentence of six months detentio n, ourattention was drawn to a number of other Courts Martial decisions which involved

detention sentences for violent offending. We think it sufficient to note that

Commander Griggs, who argued this appeal very ably for the Director and who was

of considerable assistance to us in coming to grips with the special jurisdiction of

this Court, confirmed that at least as far as he was aware no sentence of greater

than six months detention had been imposed by a Court Martial in New Zealand and

been upheld. In our view, in the military jurisdiction this is as the Court Martial

intendeda significant sentence.

[68] Having regard to the experience of the Judge and the military members of theCourt Martial, the NZDF specific factors that they carefully considered in terms of

arriving at the sentence they imposed on Private Murfitt and that six months is, to

date, the longest sentence of detention imposed by a Court Martial in New Zealand

and upheld, we are not persuaded that Private Murfitts sentence which we

conclude may be considered as being somewhat lenientis manifestly inadequate.

[69] We therefore dismiss this appeal.[70] In doing so, we are mindful of the submissions we received fromCommander Griggs, on behalf of the Director, relating to the Directors con tention

that Court Martial sentences may, in the past, have been overly lenient. We accept

that is a proper submission for the Director to make. In terms of this appeal,

however, we do not think that by reference to that submission, even if we were in a

position to properly assess it which on the basis of the material available to us

currently we are not convinced we are, we should allow this appeal. We

acknowledge, in the civilian jurisdiction, a role of the Court of Appeal may be to

adjust general sentencing levels, which it exercises by issuing guideline judgments.

Where the Court of Appeal does that, however, it generally does it prospectively, and

not retrospectively. It usually does so on an appeal by an offender, and not on a

Solicitor-General appeal The Court of Appeal also tends to engage in that type of


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appeal on a basis signalled to all parties in advance and, moreover, often with the

assistance of specially appointed amicus. The written submissions made on behalf

of the Director did not in our view clearly signal in advance these more general

submissions made on behalf of the Director before us.

[71] We note, moreover, that the role of this Court Martial Appeals Court, asregards that type of sentencing exercise, would need to be carefully considered given

the creation of the Discipline Committee, and its functions. Section 162(1) of the

Armed Forces Discipline Act provides:

The functions of the Discipline Committee are:

(a) To produce sentencing guidelines on the following in relation tooffences under this Act:

(i) sentencing principles;

(ii) sentencing levels;

(iii) particular types of sentences;

(iv) other matters relating to sentencing practice;

(v) grounds for departure from the sentencing guidelines.

[72] If, as was submitted, there is a now concern that the level of sentencesimposed previously for certain types of offending may not be appropriate to what is

now seen as the seriousness of that offending, then that would appear to be the very

type of issue that the Discipline Committee could address. Appropriate sentencing

guidelines having been produced, were Courts Martial not to properly observe those

guidelines the Director would have a clear basis for bringing to this Court such

concerns by way of a sentence appeal.

r v murfitt judgment

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