Martin, R, v [2017] EWCA Crim 648

[2017] EWCA Crim 648Case No CM02831/2016IN THE COURT MARTIAL APPEAL COURTON APPEAL FROM THE COURT MARTIAL CENTRE AT BULFORD(ASST JUDGE ADVOCATE McGRIGOR AND BOARD)Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/05/17
Before
LORD THOMAS OF CWMGIEDD(The Lord Chief Justice of England and Wales)LORD JUSTICE HICKINBOTTOMMR JUSTICE GOSS
Between
REGINARespondentDANIEL JEFFREY MARTINAppellant
Miss Gemma White appeared for AppellantCommander D J Ward MBE appeared for RespondentHearing Hearing date: 14 March 2017Additional written submissions: 17-23 March 2017
Judgment Approved
[1]On 18 May 2016, at the first hearing at Bulford Military Court Centre, the Appellant, Sgt Daniel Jeffrey Martin, pleaded guilty to two charges of common assault contrary to section 39 of the Criminal Justice Act 1988 and section 42 of the Armed Forces Act 2006 (“the 2006 Act”). On 14 July 2016, at the same court, he was sentenced by Assistant Judge Advocate General McGrigor and a sentencing board to reduction in rank by one rank, from Sergeant to Bombardier, the equivalent of Corporal in other parts of the service. With the leave of the single judge, the Appellant now appeals against sentence.[2]The facts can be briefly put. In the summer of 2015, the Appellant was stationed on the Falkland Islands. On the evening of 4 July 2015, he went to the Mount Pleasant Airfield Sergeants’ Mess. Later, he moved on to the Gull and Penguin public house, which is also on the airfield. By that time, he was drunk. Craftsman Reilly, who was known to the Appellant, was in the pub. He too had been drinking that evening. At around 11pm, the two men began talking and engaging in banter which was initially friendly, but became heated. The Appellant slapped Craftsman Reilly in the face, with his open palm, no more than three times. That formed the basis of the first charge.[3]The Appellant was asked to leave the pub, which he did. Craftsman Reilly left fifteen minutes later, and began making his way to his accommodation with some friends. En route, he encountered the Appellant again. It seems that that was an unfortunate coincidence, there being no evidence that the Appellant had sought him out. The Appellant approached him, and said, “Let’s settle this now”. When Craftsman Reilly tried to walk away, the Appellant punched him once to the face, causing his lip to swell, an injury which required no medical treatment. Others quickly intervened, and there followed a scuffle during which the Appellant himself sustained a black eye. The punch was the basis of the second charge.[4]The following day, a complaint was made, and the Appellant was interviewed. It is fair to say that his recollection of the previous evening was very vague, although he accepted that he had slapped and later punched Craftsman Reilly. He initially suggested that he had been provoked and had struck Reilly in self-defence; but, as we have described, he pleaded guilty to the two charges at the first court martial hearing, and the court indicated that he was entitled to full credit for his plea. That first hearing took place about ten months after the incidents, and no real explanation as to why the matter took so long to come before the court has ever been given.[5]At the relevant time, the Appellant was a longstanding member of the Armed Forces. He was born on 14 January 1983, and so was 32 at the time of the offences, and 33 at the date of sentence. As at that latter date, he had completed 16 years 208 days from his enlistment at the age of 16.[6]He joined the Army as a gunner. Following completion of training, he served with 7th Parachute Regiment for four years; but injury prevented him from continuing, and he returned to 32nd (Minden) Battery Royal Artillery. He was promoted to Sergeant in November 2013, serving as Motor Transport Sergeant and Battery Quartermaster Sergeant. He was the subject of numerous deployments, including two in Iraq as part of Operation Telic, and three in Afghanistan as part of Operation Herrick, the most recent of which had been April 2012. He had been awarded the appropriate service medals.[7]At the time of sentence, he was a serving soldier. However, on 13 March 2017 he was honourably discharged, on medical grounds. He had been diagnosed as suffering from post-traumatic stress disorder, as result of his active service. At the time of sentence, he appeared to be suffering from some symptoms, but no diagnosis had been made and he made it clear to the court that he wished to have the matter dealt with and did not want an adjournment whilst the medical position became clearer. In the event, understandably, the Appellant’s condition does not appear to have featured large in the sentencing hearing. We shall return to the consequences of his discharge from the service, upon which the Appellant relies, shortly.[8]The Appellant had two previous convictions, both for common assault whilst in drink, in 2002 and 2005, for which he was sentenced by a civilian magistrates’ court to a conditional discharge and a £500 fine respectively. There were no convictions between 2005 and 2015, and none since the index offences. Indeed, the reference from Capt D J Wright RA, his senior officer, written for the sentencing board, indicates that the Appellant’s conduct and behaviour both before and after these incidents had been “exemplary”; the Appellant had shown himself to be “extremely apologetic and remorseful”; and, in the officer’s view, these incidents were “absolutely out of character for him”. There is reference to the Appellant’s “high leadership ability and consistently impressive personal standards”.[9]In sentencing the Appellant, the Assistant Judge Advocate on behalf of the sentencing board said, with some force, that, if these assaults had been by a subordinate upon a superior, then the sentence would almost certainly have been custodial. He then focused upon what might be described as the service considerations of these offences:
“Now violence by superiors upon their subordinates undermines the trust and loyalty that underpins the ethos of soldiering. It has the potential to affect operational effectiveness. We note that you have two previous incidents of violence, although they are over ten years old. We find that your excessive consumption of alcohol aggravates the matter. We find it too serious for a fine or a fine or reprimand and you must be reduced by a rank to demonstrate to both your subordinates and colleagues that such behaviour by a senior non-commissioned officer cannot be tolerated in the Army. We accept that this is a harsh punishment on a guilty plea but you only have yourself to blame.”
That was a clear conclusion that, in the board’s view, the Appellant was not fit to hold the rank of Sergeant. In the event, in respect of the second charge (the punch) the board imposed a sentence of reduction in rank to Bombadier, with no separate penalty for the first count.[10]In this appeal, Miss Gemma White for the Appellant submits that that sentence was, in all the circumstances, manifestly excessive. Those circumstances, she contends, include substantial mitigation, notably(i) the fact that he pleaded guilty at an early stage,(ii) his service record, including (she submits) the absence of evidence that he was unfit to hold the rank of Sergeant, and the positive evidence (particularly from Capt Wright) that he was fit to hold that rank, and(iii) the delay of about a year in bringing this matter to a conclusion, a period in which he continued his good service as a Sergeant.[11]Miss White further submits that the sentence is out of line with the relevant services and general sentencing guidance, and with sentences imposed by other military courts for similar offences. The guidance within the courts martial upon which she relies is the Commanding Officers’ Guide to Sentencing, which, for common assault where the offence is “low” (i.e. where there is a “preponderance of mitigating features and no serious aggravating features present”), has a sentencing range after an admission is a “fine or restriction of privileges/stoppage of leave”. The relevant Sentencing Guideline Council’s guideline is that for common assault, in which a case such as this, with lesser harm and lower culpability, has a starting point of a Band A fine (equivalent to half a week’s pay for a Sergeant); and, indeed, a range that does not go above a financial penalty at Band C (the equivalent of a week and a half’s pay).[12]That strand of the appeal has been made the more forceful, it is said, because of the consequences of the Appellant’s recent discharge from the service, which means that his pension will be for ever based upon the rank of Bombardier rather than Sergeant, because he effectively lost the opportunity of regaining rank. Miss White submitted that, even taking account of the importance of discipline in service life, the financial impact of the sentence imposed is both outside the relevant guidelines, and disproportionate, amounting to perhaps thousands of pounds per year, as well as the loss of seniority and associated benefits.[13]In the light of those submissions, which were developed at the hearing before us, we sought further assistance from the parties in relation to two specific matters; and we thank Miss White and Commander Ward for their helpful further written submissions on those.[14]First, it is well-established that the Court of Appeal (Criminal Division) is a court of review; and, as such, it maintains a particularly restrictive approach to receiving new evidence, in particular with respect to matters which have occurred since the original sentence upon which generally an appellant cannot rely. However, we asked for submissions as to whether the approach of the Court Martial Appeal Court differed. Although we considered it unlikely, the courts martial have a disciplinary role, which civilian courts do not; and we considered that it was at least conceptually possible that there might be some difference. We were told at the hearing that there were no authorities on this point.[15]The diligent researches of Miss White and Commander Ward resulted in their coming to the common view that the Court of Appeal and Court Martial Appeal Court have a materially identical review role, with no significant difference between their practice and procedure with regard to the way in which post-sentence matters are treated.[16]We share that view. The relevant statutory provisions are found in the Criminal Appeal Act 1968 for the Court of Appeal (Criminal Division), and in the Court Martial Appeals Act 1968 for its services equivalent. The powers on appeal are set out in section 11(3) and section 16A(2) respectively; the powers to consider fresh evidence in section 23(1)(c) and section 28(1)(c) respectively; and the matters to which the court must have regard in section 23(2) and section 28(2) respectively. These provisions are each materially the same. Of course, this court on appeal will give particular deference to a sentence of a court martial insofar as it is disciplinary in nature – because a sentencing board has particular experience and expertise in services discipline including the extent to which an offence might be potentially detrimental to operational effectiveness, a factor absent from sentencing criteria in a civilian court – but, in a sentence appeal, the Court Martial Appeal Court performs the same review function as the Court of Appeal (Criminal Division).[17]Second, it was clear from the hearing before us, that the consequences of a reduction in rank are far from straightforward; and, the Appellant’s discharge having taken place only the day before, Commander Ward had had insufficient time to make enquiries of those that deal with such matters in Armed Forces. There can be no criticism of him for that; but we asked that further evidence and/or submissions be made in respect of the financial position of the Appellant since his discharge.[18]Evidence has been obtained by the Appellant’s former regiment from Veterans UK, for which we are most obliged. It shows that the position is not as feared by the Appellant himself. Some of the elements of his pension will be unaltered by his reduction in rank (e.g. his ill health pension award and the pension scheme lump sum payable immediately on discharge). Two will be reduced, namely(i) a further, tiered lump sum award payable on discharge was reduced by £186; and(ii) his deferred pension (payable monthly from state pension age) will be reduced by £36 per annum. Those figures are not in dispute.[19]The grounds of appeal relied upon by Miss White have to be read in the light of this new material. Despite the vigour with which the submissions were made, we are unpersuaded by them.[20]The starting point is the relevant sentencing guidance. In relation to the services guidance, by section 259 of the Armed Forces Act 2006, in sentencing, a court martial is required to take into account relevant Sentencing Council Guidelines, but, importantly, the court may depart from the guidelines “if in its opinion the departure is justified by any features of service life or of the service disciplinary system that are relevant to the case”. That is a reflection of the principle, set out in the Judge Advocate General’s Guidance of Sentencing in the Court Martial (“the JAG Guidance”) at paragraph 2.7, that “the Court Martial must take account of what is in the best interests of the Service because the whole Services justice system is designed to underpin the operational effectiveness of the Armed Forces”.[21]Thus, in relation to offences of violence, the same JAG Guidance, under the heading Service Policy Considerations, states (at paragraph 5.9.1) that:
“Personnel in the Armed Forces are trained to exercise controlled and lawful violence towards the enemy. Unlawful violence displays a lack of discipline and can corrode unit cohesiveness and operational effectiveness, particularly when directed towards service colleagues. Deterrent sentences are often necessary particularly where violence is associated with excess alcohol. The entry points for more serious offences of violence are those provided in the [Sentencing Council] guidelines. Where the violence is directed at superiors, or is an abuse of rank or authority against junior personnel, the aggravation may justify heavier sentences than the [Sentencing Council] guidelines…”
. That guidance was cited with approval by the Vice President, Hughes LJ (as he then was), in this court, in Birch [2010] EWCA 46 at [9].[22]In respect of a sentence of reduction in rank – which is necessarily unique to the services – section 248 of the 2006 Act proscribes such a sentence by a court martial “unless it is of the opinion that the offence… was serious enough to warrant such a sentence.”[23]The JAG Guidance deals with reduction in rank in paragraph 3.6. Paragraph3.6.1 notes the financial effect of such a sentence; but paragraph3.6.2 goes on to say:
“It would be wrong to consider this punishment in purely financial terms. A reduction in rank is mainly a reduction in responsibility and status which remains a visible indication of conviction, and may include changes in messing and accommodation arrangements. The important question is whether the offender by committing this offence has demonstrated that he is unfit to hold his present rank. Whether he is reduced to the ranks or allowed to retain some intermediate rank will depend on how seriously the court views his conduct, and on the mitigating factors.”
Paragraph 3.6.5 makes clear that the court should be aware of the likelihood of the offender regaining rank, and the probable timescale. In that context, the Royal Artillery Soldier Wing Military Secretary Soldiers Combat Support: Soldier Instruction 4.1 states that:
“Soldiers reduced to a lower rank due to discipline… will be eligible for substantive or acting promotion once they have an SJAR (over 6 months in rank) in the lower rank and a recommendation for promotion within this report. The individual filling all these criteria would attend the next promotion board.”
[24]Given this guidance, looked at as a whole, we consider that Miss White’s focus upon the financial impact of the sentence upon the Appellant was misplaced. Whilst that impact is of course material, the focus must be on the question of whether the offender, by committing the offence(s), has demonstrated that he is unfit to hold his present rank. Indeed, we note from the transcript of the proceedings before the sentencing panel that Miss White – who also appeared for the Appellant there – made clear that he was not so concerned about the necessary financial implications of reduction in rank, but the importance of the rank to him.[25]From the full transcript, which we have seen, it is clear that the sentencing board clearly had that central question in mind, and Miss White addressed her submissions to the board to that very issue. She rightly accepted – and said that the Appellant well-appreciated – that that the most aggravating factor here was that he, as a senior non-commissioned officer, assaulted a subordinate of three ranks below, on two separate occasions. As we have described, that feature (including the risk posed to operational effectiveness) was, rightly, central in the Assistant Judge Advocate’s sentencing remarks.[26]Furthermore, whilst it is open to this court, extraordinarily, to consider on appeal post-sentencing matters, in this case there is no evidence that the Appellant’s subsequent discharge has had any unforeseen detrimental effect upon him, that we should take into account.[27]A sentence after conviction of an offence often has an adverse financial effect upon the perpetrator. The financial effect of the Appellant’s reduction in rank was something which the sentencing board no doubt had in mind; but, as seems to have been accepted by Miss White at that hearing, it was not a matter which warranted any substantial weight in the face of a finding that the Appellant was not fit to hold the rank of Sergeant. As the recent evidence shows, the Appellant’s discharge has not had had any substantial compounding effect on the reduction in rank; and clearly does not begin to approach the sorts of case in respect of which this court might consider intervening on grounds of mercy.[28]In our view, in sentencing the Appellant, it is clear that the sentencing board had in mind all of the relevant factors, and all that Miss White had put before it in mitigation. Whilst the board did not expressly say what sentence it would have imposed if the charges had been contested, it clearly had the basis of plea in mind and it expressly remarked that the sentence being imposed was “harsh on a guilty plea”. In our view, there is no proper basis for the contention that the board did not properly take into account the plea as mitigation. It clearly took into account the supportive reference from Capt Wright, to which it referred; it also expressly referred to the pre-sentence report. It took into account the Appellant’s military record, both before and after the offences. Furthermore, the board also had well in mind the absence of other factors that might have aggravated the offence, such as serious injury to Craftsman Reilly or that the Appellant went looking for him, the sentencing board making expressly clear that the second meeting was purely coincidental.[29]We do not accept the contention that there was no evidence that the Appellant was not fit to hold his rank. The sentencing board, rightly, considered the aggravating factors – notably that these were assaults in drink on a subordinate, where there was a significant disparity in rank – to be serious. Despite the reference of Capt Wright to which we have referred, it is noteworthy that the Appellant himself accepted that this was unacceptable behaviour from a senior non-commissioned officer. Further, we note that the author of the pre-sentence report said that the offences exhibited impulsive thinking and behaviour, the Appellant had at times minimised the seriousness of the offences, and that there was a low to medium risk of further conviction and a medium risk of him causing serious harm to someone. The report concluded that alcohol had been, if intermittent, a long-standing theme in his offending. The court was entitled to take all of this into account in considering the appropriate sentence.[30]We, like the court martial, consider that, for a man with the military record of the Appellant, the sentence imposed was severe. However, in our view, the sentencing board clearly approached the question of sentence in this case properly. It did not take into account any extraneous matters. It took into account all matters which it was required or entitled to take into account, giving weight to those factors as it considered fit. It was entitled to give the fact that these assaults were by a senior non-commissioned officer on a subordinate, in drink, considerable weight, for the reasons it gave. The sentence was not, in our view, outside the sentencing guidance, looked at as a whole and taking into account the service considerations. Nor do we consider the sentence out of kilter with other sentences imposed by military courts, to which we were referred. Those other cases were significantly different on their facts: for example, in Robinson [2014] EWCA Crim 1601, upon which Miss White substantially relied, the assault was not upon a service man at all, but upon a taxi driver, so that the service considerations were different. We did not find the fact-specific cases to which we were referred of any significant assistance.[31]In all the circumstances, and given the deference that this court pays to sentences of the court martial – particularly in respect of those offences which are considered potentially detrimental to operational effectiveness – we cannot say that the sentence imposed was either manifestly excessive, or wrong in principle.[32]This appeal is dismissed.