Tointon, R. v [2010] EWCA Crim 1781

[2010] EWCA Crim 1781Case No 201002596 D5
IN THE COURTS MARTIAL APPEAL COURT
Venue Royal Courts of JusticeDate Tuesday, 29th June 2010
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE TOULSON
MR JUSTICE MADDISON
MR JUSTICE HICKINBOTTOM
Between
R E G I N ACrownv
Between
MAGNUS TOINTON
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr B Walker-Nolan appeared for AppellantBrigadier P D McEvoy appeared for Crown
J U D G M E N T

LORD JUSTICE TOULSON:

[1]This is an application for leave to appeal against sentences imposed on the applicant at a Court Martial hearing. On 14th April 2010 at the Military Court Centre in Colchester before Judge Hunter, Vice Judge Advocate General, the applicant pleaded guilty to desertion, count 1, and being absent without leave, count 2. He was sentenced to dismissal and a total of 15 months' imprisonment; the individual sentences being 15 months' imprisonment and dismissal on count 1 and two months' imprisonment concurrent on count 2.[2]The applicant is now aged 21. He was born on 14th December 1988. He enlisted with the army on 7th September 2008. On 16th April 2009 he was deployed to Afghanistan. On 10th September 2009, i.e. after approximately five months' service on that tour, he qualified for rest and recuperation. He received verbal and written instructions to return to Afghanistan on a flight due to leave Brize Norton on 23rd September 2009. He failed to turn up for the flight. He was arrested on 10th October 2009 by the civilian police for an unconnected matter. His period of absence therefore was 18 days. Because his intention was to avoid operational duty overseas, his behaviour constituted desertion and formed the subject of count 1.[3]He was returned to his unit at barracks in Northern Ireland, where he was informed that he was going to work with LOOB (left out of battle soldiers). On 16th October 2009 he went home for the weekend but failed to attend the early morning muster parade on 20th October. He then remained absent without leave until he was again apprehended by civilian police. On this occasion he was absent without leave from his unit for 100 days. This constituted going absent without leave rather than desertion because he had not been redeployed to operational duties. This conduct formed the subject of count 2.[4]The grounds of appeal are that the sentence of 15 months' imprisonment was manifestly excessive in three respects. First, insufficient consideration was given to his plea of guilty, his youth and inexperience. Secondly, the court failed to have proper regard to the sentencing guidelines which applied at the relevant time. Thirdly, the court purported to pass a deterrent sentence due to the prevalence of the offence, although no statistics or other evidence as to prevalence had been adduced before the court. In argument Mr Walker-Nolan made an additional point, that in what he submitted was an entirely comparable case of desertion by a private in the same battalion on the same tour of duty, the sentence initially imposed was two years' imprisonment but that was reduced on review to 12 months' imprisonment. This, he submitted, demonstrated what was the appropriate sentencing level, and he prayed that case in aid in support of his submissions that the sentence passed on the applicant was excessive.[5]We have been referred in the respondent's helpful skeleton argument to a line of authorities in which the court has considered important general factors to have in mind on an appeal of this kind. The cases to which we have been referred are Love (unreported) 11th November 1997; Pattinson (unreported) 25th January 2009; McKendry [2001] EWCA Crim 578; Martin [2007] EWCA Crim 3377; and Glenton [2010] EWCA Crim 930.[6]Desertion is a military offence with no civilian equivalent. The sentencing considerations involve factors peculiar to the armed services. A Court Martial is a specialist tribunal. Sentencing is undertaken by the Judge Advocate sitting with non-legal service members of the court. The lay members bring their service background and knowledge of disciplinary issues to bear on the subject. The Judge Advocate will be experienced in sentencing practice in civilian courts. He will have attended Judicial Studies Board training seminars for judges and recorders of the Crown Court. The Judge Advocate will therefore be knowledgeable in general principles of sentencing, as well as general sentencing practices and policies of the armed services. The sentencing panel therefore has a far greater expertise in assessing the gravity and significance of an offence of desertion than this court, and it will have a feel for the case which this court cannot claim to have. These are factors which this court must bear in mind when reviewing any sentence of a Court Martial. This principle must not be taken to the point of emasculating this court's jurisdiction. This court has a responsibility, if it considers a sentence to be wrong, for correcting it, but in determining whether a sentence is wrong it must give proper weight to the factors to which we have referred.[7]In the present case the Judge Advocate indicated in the course of the applicant's plea in mitigation that he accepted that the relevant sentencing guidelines to be applied by the tribunal were those in place at the time of the commission of the offences, rather than later guidelines which had been introduced between the date of the offences and the date of the Court Martial. He added that there was, however, a distinction to be drawn between guidelines set out by the Sentencing Guidelines Council, to which the court has a statutory duty to pay proper regard and from which it ought therefore not to depart without stating its reasons, and service guidelines, which are issued by the Judge Advocate General but do not have any statutory force.[8]The reference to the guidelines in force at the time of the offence was relevant in the present case for this reason. At the time of the offending the relevant document entitled "Sentencing in Courts Martial: A Short Guide" provided these guidelines:
"Desertion entry points. Dismissal + 12 months imprisonment. Where desertion includes the element of absence to avoid active service overseas, there is a public interest as well as a Service interest, because the public are entitled to expect their Service personnel to undertake operations for which they are trained and which support the Government's foreign policy. 12 months detention - without dismissal where there is no element of avoiding active service..."
[9]From 31st October 2009 those guidelines were replaced by guidelines which suggest a far stiffer penalty for desertion. The new guidelines emphasise as follows at paragraph 6.6.7:
"Desertion is a very serious offence, particularly during periods of active service where the offender's conduct could lead to a unit being short of essential manpower, and ultimately unnecessary loss of life. The maximum sentence for desertion with intent to avoid active service is imprisonment for life and all sentences for this offence should reflect the abhorrence felt by those let down by the deserter. There is also a public interest as well as a Service interest, because the public are entitled to expect the Services to undertake operations for which they are trained and which support Government policy."
Thus far the guidelines were stating nothing other than that which would have been well understood by Courts Martial but had the benefit of being set out in clear English so that all might appreciate the seriousness of such offending. The new guidelines suggest an entry point for desertion including the element of absence to avoid active service of three years' imprisonment, with a range of one year to four years' imprisonment, plus dismissal.[10]In passing sentence, the Judge Advocate stated that desertion of this type is a very serious offence for two reasons. The principal reason is that when a soldier deserts from an operational tour it places a greater burden and a greater danger on his comrades. The second reason is that it lessens the operational effectiveness of his unit. For those reasons the matter is so serious that it can only be marked with imprisonment and dismissal. He said that in calculating the period of imprisonment the tribunal took into account both aggravating and mitigating factors. Among the latter they took into account the applicant's plea of guilty; although in the circumstances of the evidence against him he really had no choice but to plead guilty, nevertheless they took it into account. They also took account of the fact that he was a recently joined soldier and appeared to be unsuited to military service. They suspected, and took into account in his favour, that he was probably subjected to family influence to join the army. The tribunal took into account the possibility that his unit might have done more to assist him. The tribunal also took into account the fact that he had completed five months of an operational tour and they were content to accept that he did not know that his conduct amounted to the serious offence of desertion. The Judge Advocate also observed:
"This is an offence of increasing prevalence and it is our duty to deter others from committing this offence."
[11]In reviewing the sentence we must have regard to the overall picture. As to the particular complaints made by the applicant, it is plain that the tribunal did have regard to the personal mitigation relied upon. It is also, in our judgment, plain that the tribunal did have regard to the sentencing guidelines at the time of the offending. The Judge Advocate said that they did and we see no reason to suppose otherwise. Had the tribunal been applying the later guidelines, the sentence would have been expected to be considerably higher. The fact that the total sentence passed for the two offences amounted to 15 months' imprisonment cannot, in our judgment, be said to afford ground for supposing that the tribunal disregarded the sentencing guidelines which proposed an entry point for an offence of desertion of 12 months' imprisonment.[12]As to the deterrent element, it was submitted that a tribunal ought not to depart from general guidelines on grounds of a need for deterrence based on some general reference to prevalence; it must have more specific and detailed evidence for doing so. If guidelines are too low they should be changed generally rather than departed from in an individual case. If guidelines are to be departed from in an individual case, it should be because the circumstances of that particular case make it right to do so.[13]We do not think that it is right to compare what the tribunal did in the present case with, for example, the case of an individual judge or recorder in a civilian court stating that he or she intended to impose a sentence materially above sentencing guidelines because of a general conclusion that the offence had become too prevalent in the relevant locality. If an individual court has in mind to take such a course, there needs to be a much clearer evidential basis for doing so. However, in this case we are concerned with a sentence passed by a specialist tribunal which can properly be assumed to be well familiar with the stresses and strains caused operationally in the relevant theatre by offences of this kind. Moreover, as we have already said, we do not detect in this case a departure from the sentencing guidelines. The tribunal had to take into account a variety of matters and reached an overall sentence for the two offences of 15 months' imprisonment.[14]Those observations serve also to distinguish the other case on which the applicant relied of a soldier who deserted from the same battalion on the same tour of duty. That soldier appeared before the court on a single charge.[15]In our judgment, it is impossible to say that the total sentence passed by this tribunal was wrong in principle or manifestly excessive. Accordingly, this application for leave to appeal against sentence is refused.