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)

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

Introduction

[1] On 24 September 2010 Private Murfitt, the respondent, was convicted by the
Court Martial of New Zealand of five counts of committing a civil offence contrary
to 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 Crimes

Act 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 Service
Correction 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 of
Military Prosecutions (“the Director”) now appeals against the sentence imposed by
the Court Martial. The Director advances a number of grounds of appeal, the
principal one being that Private Murfitt’s sentence was manifestly inadequate.

[4] This is the first appeal by the Director against a sentence imposed by the
Court 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 North
between members of the 1st Battalion 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.
[6] Private Murfitt, together with his co-offender, entered the barrack rooms of
sleeping 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 Murfitt’s 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 in

Palmerston 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 Murfitt’s 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;

 b) injuring Trooper Newman with intent to injure; and

c) assaults on each of Private Wikiriwhi, and Troopers Taivairanga and

Hall.

[10] On 10 September 2010 Private Murfitt had made a written request to plead
guilty 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 the
charge 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 Murfitt’s offending. The Judge referred to the
altercation in Palmerston North, Private Murfitt’s 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.
[13] The Judge then stated that in sentencing Private Murfitt he was to apply the
principles 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 offender’s behaviour, were especially relevant.

[14] Referring to the now accepted sentencing methodology whereby a Judge first
identifies 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 Murfitt’s 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 to R 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 Judge’s sentencing analysis up to this
point.

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

a) the Judge recorded that, having regard to the mitigating factors of

guilty 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 Martial’s decision that Private Murfitt

should not be dismissed from Her Majesty’s Service, and also noting

1
R v Harris [2008] NZCA 528.
 that – in 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 Murfitt’s
offending 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 rank

could 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 was
made 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 past – violence by soldiers
against each other, and in particular we took it by non-commissioned and
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 which – we clearly infer – was
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 Director’s specific points on appeal, and that
more general submission, in turn.

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

Jurisdiction

[22] The Director’s right of appeal is provided by s 9(2) of the Armed Forces
Discipline 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 against

conviction 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 against

conviction, 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.
[24] There are a number of cases in which this Court applied s 6.2 None of those
cases 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 against
the 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, we

consider 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 in R 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, which

the 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.
 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 the
Director 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, this
issue 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 in R 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 appeal
raised by the Director.

5
R v Love [1997] CMAC No. 975188/S2, [1998] 1 CR App R 458 CMAC.
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 Martial
erred in failing to address the relevance and application of the sentencing guidelines
that, at the time of Private Murfitt’s 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 general
rights 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 New
Zealand’s 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 sentence
that is consistent with any “sentencing guidelines” that are relevant in the offender’s
case, unless the Court Martial is satisfied that it would be contrary to the interests of
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 of
appeal 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 was
not 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, as
the 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 Director’s concession as regards the technical

relevance of the sentencing guidelines at the time of Private Murfitt’s 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
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 in
performing 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 Zealand’s 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 to

the 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 Zealand
Defence Force (“NZDF”) specific considerations.

[43] Other aspects of the sentencing guidelines reflect elements of the sentencing
process 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 Appeal’s 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.
[44] The sentencing guidelines also provide a range of specific sentencing
guidelines 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 Murfitt’s 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 the
Director would be appropriate.

[47] Moreover, we note for the record that it is not clear to us that s 4(6) of the
Court 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:

 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, and

against sentences by the Director, pursuant to s 9.

[49] We have more than a little difficulty, given that scheme of the Court Martial
Appeals 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 Director’s second ground of appeal involved the contention that the
Court 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
Director’s 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 to
be imposed, the Court Martial had made two errors. These were:

a) First, it had operated on the assumption that a sentence of

imprisonment imposed on a soldier, as opposed to an officer,
necessarily involved the dismissal of the soldier from Her Majesty’s
Service. As s 82 of the Armed Forces Discipline Act makes plain,
that is not the case.
 b) The Court Martial also erred by referring to the fact that a person
sentenced 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 Court
Martial may well have been misled by the prosecutor in this respect. The
prosecutor’s 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 home
detention 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 Martial’s 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 the
relevance 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.
[55] We note that, in the course of the prosecutor’s sentencing submissions, the
Judge 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. The
nearest 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 Establishment
involves re-training programmes of the type that would appear to exist in the
equivalent United Kingdom establishment. Nevertheless, such detention is aimed at
a 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 Director’s central ground of appeal, namely that the
sentence of reduction in rank, six months’ detention in the Services Correction
Centre and a severe reprimand was manifestly inadequate.

[58] The Director’s submissions here were, in summary, that:

a) The Judge correctly determined a notional starting point for

Private Murfitt’s offending of two years and three months.

8
R v Andrews [1998] EWCA Crim 644, CMAC No. 9800600/S2.
 b) The Judge was overly generous in allowing a deduction of a full one
third of that starting point, by reference to the mitigating factors of
Private Murfitt’s 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 Martial’s sentencing decision
which was the focus of the Director’s 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 Majesty’s Service and is
determined 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, the
Court has determined that the ultimate penalty for you should be as follows:
 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 improperly
influenced 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 Director’s
submission, no rational explanation for the Court Martial’s 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, the

Director’s 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 the

Armed Forces Discipline Act, detention was only the third most
serious, ranking after imprisonment (the most serious) and dismissal
from Her Majesty’s Service.

b) Imprisonment would be served in a civilian prison whereas detention

was generally served at the Service Correction Establishment at
Burnham Military Camp.

c) By reference to Part 8 of the Armed Forces Discipline Act, which

provides 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
 12 months. He would receive half pay during that period. Under his
current sentence Private Murfitt would ordinarily expect to serve only
four months’ detention, on half pay. In the Director’s submission, the
comparison between the practical implication of a sentence of
18 months’ imprisonment and one of six months’ detention brought
the manifest inadequacy of the sentence imposed by the Court Martial
into sharp focus.

[62] Taken overall, the Director submitted that a sentence of 18 months’

imprisonment would be the proper custodial sentence for Private Murfitt. The
Director accepted, however, that as Private Murfitt had already been committed to
the Service Correction Establishment, this Court might properly substitute a sentence
of 18 months’ detention, including reduction in rank to Private with seniority of
23 August 2008, as selected by the Court Martial.

[63] For Private Murfitt Mr Isac, on the question of manifest inadequacy,

submitted that:

a) The sentence of six months’ detention imposed by the Court Martial

was consistent with previous Court Martial sentences for similar or
more serious offences. It was also consistent with civilian cases for
similar offending, where home detention had been imposed in favour
of a sentence of imprisonment.

b) The sentence of detention was sterner than a sentence of home

detention. The Court Martial had not determined that a sentence of
detention and one of home detention were equivalent or analogous
sentences, or that detention could be substituted for a sentence of
imprisonment. Rather, the Court drew on the availability of a
sentence of home detention in the civilian context as a factor which
confirmed the appropriate response in this case as something less than
imprisonment.
 c) Previous Court Martial sentences may be a better guide to the
appropriate 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 is
considerably 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 the
Judge in his sentencing remarks as set out at [59] above, we think the proper
understanding of that reasoning is as follows:
a) The Court Martial first concluded that a sentence of imprisonment of
18 months would have been the appropriate sentence for
Private Murfitt’s 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 Judge’s
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 that
it 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 referred
to 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 Murfitt’s offending
and from a sergeant who was a friend of Private Murfitt. The two
lieutenants, Lieutenant Dill-Russell and Lieutenant Fisher, both spoke
highly of Private Murfitt’s 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 Majesty’s Service and
is determined to impose a penalty which will allow you to remain
 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’ detention, our

attention 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
intended – a significant sentence.

[68] Having regard to the experience of the Judge and the military members of the
Court 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 Murfitt’s sentence – which we
conclude may be considered as being somewhat lenient – is manifestly inadequate.

[69] We therefore dismiss this appeal.

[70] In doing so, we are mindful of the submissions we received from

Commander Griggs, on behalf of the Director, relating to the Director’s contention
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
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, as
regards 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 to

offences 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 sentences
imposed 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.