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Judgment
Title:
Director of Military Prosecutions -v- McDonagh
Neutral Citation:
[2011] IECMAC 1
Courts-Martial Appeal Court Record Number:
174CM/09
Date of Delivery:
07/15/2011
Court:
Courts-Martial Appeal Court
Composition of Court:
McKechnie J., McGovern J., Clark J.
Judgment by:
McKechnie J.
Status:
Approved
Result:
Leave to Appeal Refused
Judgments by
Link to Judgment
McKechnie J.



THE COURTS-MARTIAL APPEAL COURT
[RECORD NO 174CM/09]

MCKECHNIE J.
MCGOVERN J.
CLARK J.

BETWEEN


THE DIRECTOR OF MILITARY PROSECUTIONS
APPLICANT/RESPONDENT
AND

CORPORAL DAMIEN MCDONAGH

RESPONDENT/APPELLANT

JUDGMENT of the Courts-Martial Appeal Court delivered on the 15th day of July, 2011

1. The appellant is a non-commissioned officer in the permanent Defence Forces holding the rank of corporal. He is in the army ranger wing attached to the Second Infantry Battalion, Cathal Brugha Barracks, Dublin. On the 26th May, 2009, he was arraigned on twelve counts, being those contained in a single charge sheet dated the 1st May, 2009. He pleaded not guilty to each charge. By way of what was described as a “plea in bar” (erroneously so: s. 185 of the Defence Act 1954, as amended by s. 35 of the Defence (Amendment) Act 2007. More accurately, it was a special plea as to jurisdiction: Rule 41(1)(a) of the Court-Martial Rules S.I. No. 205 of 2008), counsel on his behalf submitted that the further prosecution of these offences should be prohibited, firstly, on the grounds of delay, and secondly, on the basis that the charges as framed were unsatisfactory in a variety of ways such as, being oppressive and by reason of the multiplicity of counts, prejudicial to the accused. Having considered these matters, the military judge issued his ruling on the 27th May, 2009, in which he rejected all such submissions. The court-martial was then adjourned to the 8th June, 2009, with the expectation that the trial would proceed on that occasion.

2. However, after some amendments to the particulars supporting the fifth and sixth charge, the appellant, at the commencement of the hearing on the 8th June, was re-arraigned and pleaded guilty to five charges, numbered 1, 3, 5, 6 and 10 on the charge sheet, as amended. On that basis, the Director of Military Prosecutions entered a nolle prosequi in respect of the remaining charges. Having received evidence and considered submissions made on behalf of the accused, the military judge, in a ruling given on the 9th June, 2009, ordered that his rank be reduced to that of private and imposed a fine of €500.00. It is against the former part of that sentence which the appellant has appealed to this Court.

3. The court-martial which tried the appellant was a summary one exercising its original jurisdiction pursuant to the provisions of s. 187A of the Defence Act 1954 (“the 1954 Act”), as inserted by s. 38 of the Defence (Amendment) Act 2007 (“the 2007 Act”). As is provided for by that section, the presiding military judge, who constitutes the court-martial, has jurisdiction, subject to s. 192 of the Act (which is not relevant), to hear and determine all charges referred to it by the Court-Martials Administrator at the direction of the Director of Military Prosecutions (“DMP”). Commandant Richard Brennan, B.L. appeared on behalf of the DMP with Mr. Gerard Humphries, B.L., appearing on behalf of the appellant. Nothing turns on the nature or jurisdiction of the court-martial so established. It is also accepted that the appellant was at all relevant times subject to military law.

4. The charges which the appellant pleaded guilty to were as follows: retaining for the purposes of this recital, the original numbering as appears on the indictment:-


    “First Charge:

    Committed an offence contrary to s. 169 of the Defence Act 1954, that is to say assault contrary to s. 2(1) of the Non-Fatal Offences against the Person Act 1997;….

    In that on or about the 17th March, 2007, at the Best Western Boyne Valley Hotel and Country Club, Drogheda in the County of Louth, did assault Miss. L.B. by putting his hands around her head and pulling it towards him.

    Third Charge:

    Committing conduct to the prejudice of good order and discipline contrary to s. 168(1) of the Defence Act 1954;….

    In that he on or about the 17th March, 2007, at the Best Western Boyne Valley Hotel and Country Club, Drogheda in the County of Louth, did grab 301039 Private Elizabeth Ray ‘B’ Coy 5th Infantry Battalion, by her head and pull it towards him.

    Fifth Charge:

    Committing conduct to the prejudice of good order and discipline contrary to s. 168(1) of the Defence Act 1954;….

    In that he on or about the 17th March, 2007, at the Best Western Boyne Valley Hotel and Country Club, Drogheda in the County of Louth, did expose himself.

    Sixth Charge:

    Committing conduct to the prejudice of good order and discipline contrary to s. 168(1) of the Defence Act 1954,

    In that he on or about the 17th March, 2007, at the Best Western Boyne Valley Hotel and Country Club, Drogheda in the County of Louth, did use inappropriate language towards Miss. L.B.

    Tenth Charge:

    Committing conduct to the prejudice of good order and discipline contrary to s. 168(1) of the Defence Act 1954,

    In that he on or about the 17th March, 2007, at the Best Western Boyne Valley Hotel and Country Club, Drogheda in the County of Louth, did become involved in an affray with 862810 Private Andrew Jennings ‘B’ Coy 5th Infantry Battalion.”


5. The details underpinning this indictment showed that, in relation to the first charge, the accused placed his hands around the head of a Miss L.B., a civilian person, and pulled her head towards him without her consent and without lawful excuse. The third charge was in identical terms save that the person involved was Private Elizabeth Ray. The fifth charge alleged that the accused pulled down his trousers and underpants and, in so doing, exposed himself in the presence of Private Elizabeth Ray and her civilian guest. This conduct was also witnessed by a second member, Private Andrew Jennings. Charge number six was founded upon an allegation that the accused used inappropriate language to the civilian person by referring to her as “the dog’s bollocks”, or in some similar such words, with the final charge being referable to his involvement in an affray with Private Jennings.

6. As will be seen from these charges, there was a civilian female person involved as well as two members of the Defence Forces. One of the charges, the first charge, constituted an offence contrary to s. 169 of the 1954 Act, as amended – this notwithstanding the fact that ordinarily it could be described as a civilian offence, being an assault contrary to s. 2(1) of the Non-Fatal Offences against the Person Act 1997. The remaining four charges were violations of s. 168(1) of the 1954 Act, each relating to conduct prejudicial to good order and discipline.

7. Section 168(1) of the 1954 Act reads as follows:-


    “Every person subject to military law who commits any act, conduct, disorder or neglect to the prejudice of good order and discipline is guilty of an offence against military law and shall, where a charge under this section is disposed of summarily under section 177C, 178C or 179C, as the case may be, be liable to suffer any punishment awardable thereunder or on conviction by court-martial, be liable, if an officer, to suffer dismissal from the Defence Forces or any lesser punishment awardable by a court-martial.”

8. Section 169(1) of that Act reads:-

    “(1) Subject to the provisions of this Act, every person who, whilst he is subject to military law, commits any of the offences referred to in this section shall be deemed to be guilty of an offence against military law, and if charged under this section with any such offence (in this Act referred to as a civil offence) shall be liable to be tried by court-martial, and on conviction to be punished as follows, that is to say”

As inserted by s. 56(a) of the Criminal Justice (Terrorist Offences) Act 2005, subsection (3)(g)(ii) of that section goes on to provide that a person, subject to military law, who is convicted of an offence, such as that described in the first charge above outlined, shall be liable to:-

    “imprisonment for any term not exceeding two years or any lesser punishment awardable by a court-martial”.

Section 58(1) of the 2007 Act also makes provisions for the reduction in rank, reduction to any lower point or scale of pay and reprimand.

9. The background circumstances giving rise to these charges are as follows. On the 17th March, 2007, the appellant was attending a function at the Best Western Boyne Valley Hotel, Drogheda, to celebrate the passing out of the 78th and 79th Recruit Platoons, B Company, 5th Infantry Battalion. At that time, he was a corporal, a non-commissioned officer, and was in the appointment of a defence force instructor, with authority over Private 2 Star Elizabeth Ray, for the duration of her training as a 2 Star and pending her training as a 3 Star. As such he had command, authority and responsibility over her. He played a similar role and held a similar position with regard to Private 2 Star Andrew Jennings. The civilian person mentioned in the first and sixth charge was attending the function as a guest of Private Elizabeth Ray.

10. As part of the mitigation plea, the appellant gave evidence on his own behalf before the military judge. Therefrom it appears that he was born on the 8th June, 1983, is the father of an eighteen month old child and resides in his own house in Co. Kildare, which has attached to it a mortgage of €280,000. In the lead up to the events on the night in question it appears that he began socialising on the previous afternoon at about 2.00 p.m. when he had four bottles of Millers. He repeated that level of consumption some three hours later. Having arrived at the function venue he had some more beer but then went on to vodka, which he stayed on for the rest of the night. Single and double measures were evidently consumed in great quantities. He eventually got drunk and was unable to recall when the function ended. During the course of the evening he had a meal and engaged in jovial dancing with other attendees.

11. He also unreservedly apologised for his conduct and freely acknowledged its unacceptability. He claimed it was entirely out of character and that he was ashamed of what he had done. He voluntarily declared that he had let himself down, his unit and the Defence Forces in general. He was remorseful and grossly apologetic and outlined his desire to stay in the army.

12. His military service records showed that he enlisted with the Defence Forces on the 29th November, 2002, and that since then he had obtained several military qualifications, together with being the meritorious recipient of a number of medals. He served in Liberia in 2004 and Kosovo in 2005. Lieutenant Katherine Lundon, who gave character evidence on his behalf, first came into contact with the appellant when he, as a private, attended an NCO course in 2006 where she was a training officer. She again met him some time later whilst both were on the training staff at Gormanston, Co. Meath. She spoke about his enthusiasm, his communication and integration skills, his application to work and dedication to physical fitness, his respect for authority both to his superiors and his subordinates, and, overall, whilst expressing shock at what occurred on the night in question, spoke highly of him as a solider. Company Sergeant Ahern, who had known him since 2003, echoed this view. He, likewise, was very impressed with the appellant. The sergeant gave details of a number of courses which the appellant successfully completed, identifying, in particular, a reconnaissance course where the failure rate was more than 50%. In addition, he emphasised his belief that the appellant “wanted to be a solider rather than…just coming to the army for a job”. Notwithstanding his great surprise as to what had occurred on the 17th March, 2007, the sergeant was quite satisfied to have the appellant in his unit.

13. The appellant has no previous convictions as a civilian and this Court is satisfied to proceed on a similar basis with regard to his military career.

14. Legal submissions were made to the Court-Martial Court, relying upon the above facts, none of which were in dispute. Emphasis was placed on the appellant’s remorse, his previous good character, his dedication to army life and his guilty plea, which demonstrated a willingness and capacity to benefit from rehabilitation. Whilst accepting that his client’s behaviour could be described as “appalling”, counsel reminded the court of the fact that the occasion was social in character and not duty based, and that his client’s conduct had been fuelled by alcohol of which he was an infrequent user. Impressing his client’s desire to continue with army life, the court was urged not to impose a sentence which might be “life changing” in character and was asked in the interest of leniency to refrain from jeopardising the appellant’s continuing army career.

15. The military judge, in a ruling which he considered overnight, made reference, by way of general observation, to the appellant’s position within the Defence Forces being that of an NCO, and also relative to the particular circumstances which had occurred, to the fact that for the duration of the recruit training he had been an instructor with that group. As a result therefore of his rank and the position so occupied, he had exercised authority over such recruits. As such, he was obliged to behave properly which he had failed to do. The judge described the assault on the civilian guest as disgraceful; the grabbing of the female private solider by the hair and the pulling of her towards the accused as conduct abusive of authority and amounting to mistreatment of a subordinate, which could not be tolerated; and the act of exposing himself was an affront to common decency and demonstrated disrespect for all those present. The language used to ground the fifth charge was vulgar, crude and offensive and getting involved in an affray with a private solider showed a clear lack of self-control.

16. The conduct was further described as being truly substandard and as constituting a serious breach of military discipline. The actions undermined such discipline and showed an unacceptable disregard for the respect of military authorities. In the words of the military judge, “discipline is of the essence in a military force”. He went on to say “the principal governing the punishment of offences committed against military law is the maintenance of discipline and the proper amount of any punishment is the least by which discipline can be maintained”. He concluded that the offences were in the mid-range of seriousness which a summary court-martial had to deal with. Subject to factors of mitigation, he held that the conduct was of a type which might well justify dismissal and a custodial sentence.

17. Matters considered in mitigation were:-

      (a) the guilty plea and thus the saving of court time, the avoidance of witnesses having to give evidence and being subject to cross-examination;

      (b) the apology;

      (c) the influence of drink;

      (d) the occasion being social;

      (e) the number of years of good service, both before and after this event;

      (f) the positive character evidence;

      (g) his age, personal and domestic circumstances, including his daughter and a substantial mortgage which he carried;

      (h) the overseas service previously undertaken;

      (i) the number of important career courses successfully attended and the rewards received by him.

18. Having taken these matters into account, the military judge decided against imposing a custodial sentence and also refrained from discharging the appellant from the Defence Forces. However, as his actions on the night in question demonstrated a clear failure to self-control, it had to follow that he was not a fit person at that time to hold the rank of corporal. Whilst giving every encouragement at rehabilitation, nonetheless, the appropriate sentence was a reduction to the army rank of private, together with a fine of €500.00.

19. By Notice of Appeal dated the 29th June, 2009, the appellant has sought leave to appeal to this Court from the sentence above so imposed and described. Although the grounds of appeal number five, the essence of the application is to say that the sentence was excessive and disproportionate in the circumstances.

20. The written submissions filed on behalf of the appellant were spoken to by counsel on his behalf during the currency of this appeal. Reference was made to The People (D.P.P.) v. Tiernan [1988] I.R. 250 at 255, which emphasised the importance of a plea offered at the “earliest reasonable opportunity”. That was the situation which pertained in this case. In addition, however, the core point of the appeal was argued under the heading of “Proportionality”. The fine of €500.00 is not the issue. It is the reduction in rank with the resulting significant loss of salary, including a number of allowances, which will be forfeited. The appellant will be disadvantaged by some €130.00 net per week, which is over €6,500.00 net per annum. This significant loss must be considered by reference to his personal circumstances, including the mortgage on his existing dwelling house. In addition, however, the severity of the punishment, and thus its proportionality, must be viewed in the context of the existing embargo on promotion and recruitment within the army. It is said that it is highly unlikely such prohibition will change in the medium term, with the result that, even with exemplary conduct and proven and acceptable commitment to duty, it will not be possible for the appellant to regain his former status at any time soon. This particular point, it is acknowledged, may have much lesser weight in other economic circumstances, such as where perhaps there was a shortage of military personnel. However, it is the present circumstances and the almost inevitable incapacity to regain rank that this submission on proportionality must be judged by.

21. On behalf of the respondent, it was submitted that the military judge took a serious view of these charges (as he was entitled to do) and he could not be said to have misdescribed their position on the appropriate scale of seriousness which he judged at about midway. All matters referred to by way of mitigation were taken into account, including the giving of credit for the so-called early plea which, in reality, was offered late in the day and after the trial had commenced. Given the requirement to maintain good order and discipline, the sentence was within the spectrum of that available to the military judge. It was said, following Scariff v. Taylor [1996] 1 I.R. 242, that this Court should not intervene unless there was a material error in the ruling or unless the sentence so imposed was evidently unjust. Since neither has occurred, the appeal should be dismissed.

22. A number of decisions were referred to in support of this submission including R. v. Bourne [2009] E.W.C.A. Crim. 1634, R. v. Appleyard [2005] 205 E.W.C.A. Crim. 2750 and R. v. Cooney & Ors [1999] 3 All E.R. 173.

23. This application is moved under s. 13 of the Courts-Martial Appeals Act 1983, as inserted by s. 11 and Sch.4, Pt.1 of the Defence (Amendment) Act 2007, which gives the applicant a right to appeal to the Courts-Martial Appeals Court (“the Appeal Court” or “this Court”) against conviction or sentence.

(This Court, which is very similar in composition to the Court of Criminal Appeal (“C.C.A.”), exercises a similar, but not identical, jurisdiction and in practice proceeds as the C.C.A. does, namely that before intervention takes place an error of principle must be established. In the instant case the area of review relates to sentence only and not conviction).

24. In Re Gunner Michael Connolly, (1984-1989) Frewen 1, Finlay P. when giving the judgment of the appeal court described the circumstances by which such an error may arise. He said:-


    “Furthermore, the Court will be obliged to correct the sentence if it were satisfied that matters not relevant in law to the sentence were taken into consideration or if it were satisfied that other matters which were relevant in law were ignored….these are the only functions of this Court in regard to appeals against sentence.”

This passage has subsequently been reaffirmed on several occasions, including in Re Sergeant David Corcoran (Unreported, Courts-Martial Appeal Court, 22nd April, 1991) and in Re Private Richard Nagle (Unreported, Courts-Martial Appeal Court, 22nd April, 1993).

25. The words so used in the phrase as quoted are strikingly similar to what we are accustomed to on the civil side when administrative actions are under scrutiny by way of judicial review, classically in the context of the exercise of discretionary power. Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 K.B. 223 speaks of the necessity “[to] exclude from…consideration, matters which are irrelevant” or “extraneous”, and of the requirement of the decision maker to “call his own attention to the matters which he is bound to consider”. Henchy J. in The State (Lynch) v. Cooney [1982] I.R. 337 outlines in what is described as a “seminal passage” (Hogan & Morgan, Administrative Law in Ireland, (4th Ed., Roundhall). para. 15.11) various infirmities which will render an administrative action invalid, including “…taking into consideration irrelevant matters of fact, or through ignoring relevant matters…” (pp. 380-381). To understand that correspondence of language it is necessary to consider in a bit more detail the nature of the proceedings which come before any one of the three classes of courts-martial provided for by s. 186 of the 1954 Act, as substituted by s. 36 of the 2007 Act, and which, on appeal, arrive before this Court. Before so doing, however, it is important to consider general principles.

26. In The People (Attorney General) v. O’Driscoll (1924-1978) Frewen 351 at 359, Walsh J. said:-


    “It is therefore the duty of the Courts to pass what are the appropriate sentences in each case having regard to the particular circumstances of that case – not only in regard to the particular crime but in regard to the particular criminal.”

Therefore, both the circumstances of the crime and the circumstances of the offender are the principal pillars upon which a sentence should be constructed.

27. In addition, however, such a sentence must be proportionate. In The People (D.P.P.) v. W.C. [1994] 1 I.L.R.M. 321, Flood J., grounding his comments on The State (Healy) v. Donoghue [1976] I.R. 325, said:-


    “In my view the selection of the particular punishment to be in imposed on an individual offender is subject to the constitution of principle of proportionality. By this I mean that the imposition of a particular sentence must strike a balance between the particular circumstances of the commission of the relevant offence and the relevant personal circumstances of the person sentenced.”

This viewpoint has been endorsed in several subsequent cases including People (D.P.P.) v. M [1994] 3 I.R. 306. In essence, these later cases may have done no more than to put into express language that which can be inferred from the principles outlined in People (Attorney General) v. O’Driscoll (1924-1978) Frewen 351. If the court has to consider the circumstances of the offence and offender, one would have thought, that the sentence has to relate in a rational and balanced way to both. In any event, the concept of proportionality, which is grounded in Articles 38.1 and 40 of the Constitution, has been well established in mainstream criminal law for many years and in its existence is entirely uncontroversial. It is, therefore, unnecessary to further dwell on its constituent element as it might be if this was a vires or constitutional case. The principle, however, was formulated by reference to persons not subject to military law and an issue thus arises as to how and in what respect that principle can be given effect to when the offenders are members of, as in this case, the army.

28. The special position of the Defence Forces in this country is recognised by the Constitution in which Article 38.4 provides for the establishment of military tribunals for the trial of offences against military law. That position, in a broader sense, has also been acknowledged by the courts in several cases such as C. v. The Court-Martial (Unreported, Supreme Court, 15th February, 1994) where Finlay C.J. said:-


    “And the court must in my view initially approach this application with regard to a matter of significant importance in principle…that is that the Court can and should pay a particular respect to the fundamental importance under the Constitution and under the structure of society of the disciplinary machinery and disciplinary codes of the Defence Forces but that of course that respect and in a sense reluctance to intervene can never possibly interfere with the duty of the Court to do justice to a member of the Defence Forces as well as to everyone else in relation to any particular proceedings or position in which they find themselves.”

Although that decision was on the judicial review side, the observations clearly apply to all circumstances in which military law is involved.

29. The role which discipline plays within the military service is so obvious that perhaps its recitation in this judgment is unnecessary. However repetitious as it might be, it remains a striking feature of the life of those who have enlisted and remain in service. As Carroll J. in Scariff v. Taylor [1966] 1 I.R. 242 at 250 said “…the purpose of military law is to ensure the maintenance of good order and discipline within the defence forces…obedience to commands is integral to a soldier’s whole existence. Therefore, the maintenance of good order and discipline is a key element in army life. The strict disciplinary code of the army includes elements which have no equivalent in civilian life but it should be remembered that a recruit on joining, submits voluntarily to this code”. So both recognition and affect must be given to these requirements within the community of service.

30. The individual character of offences against military law is readily demonstrated by the nature of the charges preferred against the appellant in this case. In essence, the first charge is an offence under s. 2 of the Non-Fatal Offences against the Person Act 1997, and if the offender had been a civilian he would be charged as such and in the ordinary way amenable to civilian courts. However, being in military service the applicant is not charged, per se, with a s. 2 assault; rather, the assault in question constitutes the foundation for a violation of s. 169 of the 1954 Act. Likewise, with the remaining charges, all are grounded upon conduct which is described as being prejudicial to good order and discipline of the force. Such criteria for criminal infringement does not exist and cannot be found in mainstream civilian law. Therefore, this type of charge is peculiar to members in service. Accordingly, sentence for military offences affecting discipline within the force must be reflected in this Court’s consideration of the appeal as it was in the trial court. Therefore, the appropriate sentence must be constructed having regard to such matters.

31. This differentiation in the roles of civilian and military courts was captured by the judgment of Simon Browne L.J. in R. v. Love [1988] 1 Cr. App. R. 458 where at 461-462 the learned judge said:-


    “…court-martial sentences are concerned at one and the same time to achieve two things. First, to punish service personnel for the criminality of their conduct; second, to deal with them also on a disciplinary basis. In that they are unique. Members of other professions and occupations who transgress the law of the land are dealt with quite separately, (a) by the civilian criminal courts, followed (b) if appropriate, by disciplinary proceedings before their own professional bodies. This would be so, for example, in the case of lawyers, doctors, nurses, architects and police officers. These considerations seem to us to be of some importance when it comes to determining what should be this Court’s approach to these appeals. Hitherto this Court has been concerned exclusively with the appellant’s criminality and whether his sentence is wrong in principle or manifestly excessive. By contrast, statutory appeals from professional disciplinary bodies have gone traditionally to other courts, generally either the divisional court or the privy council, where a quite different approach is brought to bear upon them…in the present class 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.”

32. What that passage seeks to convey is that violations of military law by people in service have or can have not only a criminal context but also a disciplinary context. In all other areas of regulated activity each different context would be deliberated upon in quite a separate and distinct way; the former by civilian criminal courts and the latter by regulatory or, what might loosely be called, disciplinary bodies. This, in general, equally applies at an appellate or review level, with disciplinary issues being moved on the civil side; most frequently by resort to judicial review relying on one of the several well recognised grounds by which such decisions may be impugned. With people who are subject to military law, however, both at trial and at appellate level, issues of criminality and ill discipline are dealt with in conjunction, one with the other. For present purposes, I am disregarding remedies, such as judicial review, because the context of this assessment is merit based. Those aggrieved by a decision of a military court have but a single appellate structure available to them, namely this Court, which, in essence, parallels the jurisdiction of the C.C.A., but with the added significant dimension of having to reflect the disciplinary side of the force to which a person in service voluntarily submits on entry. To that extent, and as so understood, we respectfully agree with the passage from Love as quoted above.

33. There is, however, another central point in that passage. It appears at the latter end of the section quoted. It points out that by reason of the disciplined nature and structure of the force, those in a position like the military judge, who is a member of that force, is generally in a better position than an appellate court in deciding upon what level of penalty is appropriate to maintain that discipline and that structure. As a general observation, that, indeed, may be so. It reflects some form of Curial difference towards the decision maker.

34. However as described, such an understanding of the process should not be overstated. This Court, although established in the same manner as the Court-Martial Courts, is strikingly different from that court in that its members are judges also appointed under the Constitution. Unlike any specialist body to which “appreciation” is shown, it must be remembered that the subject in question is not one dealing with civil law, but rather with law which is penal in nature. In addition, the consequences of a conviction under military law can be, for the reasons stated above, much more severe than on the civilian side. Therefore, in my view there is no justification, which cannot otherwise be satisfied, as to why this Court should be unduly deferential to a trial court. Furthermore, the level of respect which should be shown must always yield to constitutional rights which a serving member retains despite his membership of the force. (See the relevant passage from C. v. Court-Martial (Unreported, Supreme Court, 15th February, 1994), para. 28 supra).

35. In addition, this Court must also reflect upon the general principles of sentencing which are available in civil criminal courts, but must of course apply such principles in the context of the offence being against military law and the offender being in service and thus being subject to the discipline and structure of his or her unit. To give proper effect to this situation, the appeal court, when dealing with an appeal against sentence, should seek to understand the needs of the service community. Once so understood and applied however, I do not believe that any further special treatment is required when the Courts-Martial Appeal Court is exercising the jurisdiction conferred upon it by the 1954 Act, as amended. Within mainstream principles, some of which are identified above, there is ample scope, either by reference to the offence or to the offender, when sentencing a military law offender to apply all the particular position of military law and those subject to it. Accordingly, but subject to these important qualifications, I believe that all principles applicable to sentencing on the civilian criminal side should equally apply to this appeal court.

36. In this case, therefore, it is necessary for the appellant to establish an error of principle before leave to appeal can be granted. He has relied primarily on the financial consequences which result from a reduction in rank which he says, in the present economic conditions, include an embargo or prohibition on recruitment or promotion: as a result the sentence is disproportionate. In essence, this is the sole ground of appeal. There is not, nor could there be, any complaint about the manner in which the military judge approached the task of sentencing. He outlined in considerable detail and in a careful and structured way the background to the case, the military context in which the offences were committed and the personal circumstances of the offender. He considered all matters advanced by way of mitigation and, having decided against dismissal or imposing a custodial sentence, he concluded that a reduction in rank was both appropriate and required.

37. In fact, one could say that he took a benign view of the circumstances which gave rise to the guilty plea. It will be recalled that the appellant sought to prohibit his trial on the grounds of delay and by reason of alleged infirmities with the wording of the indictment. He was unsuccessful in that regard. Only then was he re-arraigned and entered his plea. Despite this he was given credit, without qualification or adverse comment, for such plea. The amendment to the indictment was inconsequential and could not be said to have had any influence on the decisions made by him. Therefore, it would equally have been open to the military judge to take a view, in applying People (D.P.P.) v. Tiernan [1988] I.R. 250 that the plea was not entered at the earliest available opportunity.

38. During the course of his ruling, the military judge, having considered what might be an appropriate sentence, addressed himself by asking whether a reduction in rank was the least severe punishment required in order to maintain good order and discipline within the force. It is clear, therefore, that he was totally alive to the principle of proportionality. He concluded that by reason of the offending conduct, as so described by him, the appellant was not, at that time, a fit and proper person to hold the rank of corporal. Demotion from that rank was therefore essential for military discipline. Hence, the ultimate decision.

39. Can it be said, in light of all of the circumstances, including his rank as corporal, his position of authority and influence over the recruits, and his conduct on the night in question, that the decision to demote him was not rationally connected to the objective of maintaining good order and discipline within the force, or that such requirement could have been achieved by some lesser or more lenient sentence? While acknowledging the strong supporting evidence of good character and service provided by Lieutenant Lundon and Company Sergeant Ahearn, and that such conduct on the night in question may have been a once off offending piece of behaviour fuelled by the intake of excessive alcohol, nonetheless, this Court cannot identify any other means by which the objective in question could be achieved, even if it could substitute its own view for that of the military judge, which of course it can’t. We have considered the submission with regard to the financial consequences of the demotion but very much take the view that these are consequential from that step and were not intended to be a focal point of punishment in any way. Again we recognise the difficulties outlined in relation to entry into and promotion within the force, which undoubtedly may adversely impact on the appellant’s prospects, if he should remain in active service when his current term expires. Yet notwithstanding all of these features, we cannot identify any factor, either individual or in conjunction with others, which could possibly give rise to the establishment of an error in principle in this case. The court is satisfied that the approach of the judge was impeccable and that in a practical and realistic sense he duly weighted all relevant factors in arriving at the conclusion which he did. Therefore, leave to appeal will have to be refused.

40. Before concluding, however, there is one further matter which the court would like to comment upon. Having imposed the sentence which he did, the trial judge on several occasions highlighted the importance of and the opportunity which the appellant had to rehabilitate himself before his current contract would expire. The judge urged the appellant in the intervening period to earn and regain the trust of his superiors, to attend diligently to his duties, to show respect to his comrades and to avoid any form of misbehaviour or acts of indiscipline. The judge’s appraisal of the situation and his intention at that time are captured by this passage from his ruling:-


    “However, since you are still a young man of only 26 years, in time, the court is of the view that you may, once again, earn and regain the trust of your superiors. Your future is entirely in your own hands.”

It is abundantly clear from this and several others comments that, whilst having no control over the decision, the military judge was expressing the view that at renewal date the appellant may have sufficiently rehabilitated himself and that the sentence so imposed may not act as a continuing barrier to his further retention in the army or promotion to his previous rank.

41. This Court, whilst immediately acknowledging the absence of any decision making role in this context, would adopt and support the relevant and material remarks of the military judge.

42. It follows from the above that leave to appeal will be refused.











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