IN THE COURT MARTIAL APPEAL COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2016-485-659 [2016] NZHC 2133

BETWEEN	JACOB DANE MCCARTIN
Appellant	

AND	
THE QUEEN Respondent	

Hearing:

Court:	7 September 2016

Simon France J Judge D McGregor Judge J R Billington QC	

Counsel:	
P L Murray for Appellant
Captain R L Goguel and Lieutenant Commander P McIntosh for
Respondent	

Judgment:	
8 September 2016	

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Simon France J)

Introduction

[1]       This is an appeal against sentence pursuant to  s 9 of the Courts Martial Appeals Act 1953.   Sapper McCartin pleaded guilty to various drug offences.   He was sentenced to dismissal and four months’ imprisonment.1   The focus of the appeal
is  on  the  sentence  of  imprisonment.  It  is  contended  the  alternative  sentence  of

1	R v McCartin Court Martial Linton, 24 August 2016.

MCCARTIN v THE QUEEN [2016] NZHC 2133 [8 September 2016]

detention should have been imposed. It is therefore convenient to first identify the sentencing options that were available.

Sentencing options

[2]       The starting point is Schedule 2 to the Armed Forces Discipline Act 1971 (The Act) which establishes a hierarchy of sentences:

(a)	imprisonment;

(b)	dismissal from Her Majesty’s Services;

(c)	detention;

(d)	reduction in rank;

(e)	forfeiture of seniority; (f)	a stay of seniority;
(g)	a fine;

(h)	a severe reprimand; (i)	a reprimand.
[3]       Regardless of the number of charges only one sentence is to be imposed, albeit that sentence can consist of more than one of these options.2    Hence in the present  case,  the  sentence  was  both  imprisonment  and  dismissal.    Schedule 2 provides that each type of sentence is to be treated as more severe than any of the type below it in the list.  However, a period of detention that would be longer than
any sentence of imprisonment that would be imposed is not to be seen as less severe.

2	Armed Forces Discipline Act 1971, s 79.

[4]       A sentence of imprisonment is served in a civilian prison.   The primary difference is that the Parole Act 2002 does not apply.3     Rather, a system of reconsideration as set out in Part 8 of the Act applies.  This mandates reconsideration every six months by a Reconsidering Authority.   For sentences of less than six months’ imprisonment, reconsideration is possible but is not mandatory.4   A military prisoner may petition for reconsideration.5   The sentence may be remitted in whole or in part on the grounds of good conduct, on compassionate grounds, or for any other proper reason.6    The expectation in the present case is that Sapper McCartin will serve the full fourth months.

[5]       Concerning the sentence of detention, s 168 of the Act provides that the sentence shall be served in a detention quarter or in service custody.7   The Court was advised that the sentence of detention is administered by the Services Corrective Establishment (SCE). The sentence is served at a dedicated facility.

[6]       A memorandum was provided to the Court which sets out how a detention sentence runs over its term.   The focus of the programme is both corrective and rehabilitative, and set programmes have been developed.   Many detainees will be returning to the Services following their sentence and that obviously influences the structure. However, if a detainee is leaving the Services at the conclusion of the sentence, there is instead a greater focus on career prospects with emphasis on assistance with building a CV, and job interviewing techniques. The programme uses outside agencies to assist with individual needs such as drug and alcohol issues.

[7]       Presently the basic module runs for 14 days, although longer modules are being developed.   The SCE considers a minimum term of 28 days is required to maximise potential benefits. The sentence will usually occupy a detainee for 16 hours a day, seven days a week.  It is divided into four stages. During the term of the
sentence, most privileges are removed.  It is described a “very strict” regime where

3	Section 168.
4	Section 152.
5	Sections 153, 154.
6	Section 158.
7	The Act also provides for what is to happen where the detainee is on service abroad.

discipline and motivation are key factors.   The maximum available term is two years.8

[8]       We were advised that a detainee continues to receive half their salary whilst serving the sentence.

Facts

[9]       As  the  result  of  a  tip  off,  military  police  confiscated  the  phone  of Sapper McCartin.   Text messages were discovered which are suggestive of drug dealing.  Sapper McCartin was interviewed and admitted offending.  Charges were laid and Sapper McCartin pleaded guilty to all charges.9    The charges span a six week period and involve three substances.  The text messages are the key source of evidence.10

[10]     On 23 December 2014, Sapper McCartin offered to sell 10 NBOMe tablets for $250.  The tablets being offered were “the same ones we had at the flat”.  Two recipients of the offer were also military personnel.  The following day the appellant texted  an  acquaintance  seeking  to  purchase  an  ounce  of  cannabis.    Next,  on
22 January the appellant texted someone seeking to purchase cannabis tinnies.  Then on 28 January an acquaintance approached him seeking cannabis.  The appellant said he had none but could “hit up a dude” in Palmerston North to see if some could be had.

[11]     Lastly on 13 February, the appellant was approached to see if he had any ecstasy.  He replied he had two tablets.  The buyer asked if he could pay for one and put the other on tick, which the appellant agreed to.  This last offence is the only one involving a class B drug.   It should finally be noted that one of the text messages disclosed admissions to also consuming cannabis, and he admitted another occasion,
and charges were laid in relation to those.

8	Section 83.
9	There was first a challenge to the lawfulness of seizure of the phone and the admissibility of the subsequently obtained evidence – McCartin v R [2016] NZHC 1807.
10	He  gave  an  interview  that  explained  some  of  the  texts’ meaning  but  did  not  give  fuller explanation for the offending.

[12]     Other than for the first charge, all other participants were civilians.   The offending occurred off base when the appellant was either on leave, or at least not on duty.

Personal circumstances

[13]     Sapper McCartin is 25 years of age.  Whilst in the army he had been doing an apprenticeship  as  a plumber and  gas fitter.   He was  some distance through  his training at the time the offending was discovered.  It seems there was then a hiatus whilst matters were put on hold pending determination of the charges.  This turned out  to  be  an  unfortunately  long  period.    Accordingly,  the  training  eventually resumed, but the lost time meant Sapper McCartin had not completed his apprenticeship by the time he was sentenced.

[14]     The appellant has no previous convictions and until these charges had been progressing satisfactorily in the armed forces.

[15]     The sentence of dismissal is accepted by the appellant as appropriate and is not  contested.    A  consequence  therefore  of  his  offending  is  the  loss  of  his employment   and   the   ability   to   finish   his   apprenticeship   within   the   same environment.   On the other hand, the period of time to which Sapper McCartin would have been bonded to the Army is also extinguished.

Sentencing

[16]     The Court Martial concluded imprisonment was the only sentence that could meet the deterrence purposes required as a response to this offending:

This has taken some considerable time for us to decide but our conclusion is that deterrence is the paramount consideration in respect of your offending and in respect of drug offending in the military context.  The Court wishes to send a message to other personnel, that dealing in drugs will result in a sentence of imprisonment, and that is seen as the least severe sentence that one can impose to establish that necessary deterrent element.

[17]     The Court had earlier referred to a passage from the Court Martial Appeal

Court ruling on the admissibility challenge. We cite the relevant passage in full:

[49]      The charges against the appellant are serious.   Much more serious than if he were a civilian.  Soldiers are part of a uniformed and disciplined force trained and equipped to use lethal violence.  The use of drugs cannot be tolerated in such an environment.  Military law, upon conviction, would treat the appellant more severely than if he were a civilian.

Decision

[18]     We are satisfied the appeal cannot succeed.  Dealing in drugs at any level, as long as there is a commercial aspect to it, will normally attract a sentence of imprisonment.11    There is no doubt that the present offending has that commercial overtone.   In a short space of time the appellant was dealing with three types of drugs.  In the first offence he initiated the offer to sell, and set a price.  On another occasion  he  is  seen  sourcing  cannabis  in  a  quantity  that  would  trigger  the presumption of supply.   On another occasion he agrees to supply “on tick”.   It is
plain others see him as a source, and the overwhelming impression is of a bottom level, middleman type dealer.  That being our assessment of the facts, it cannot be said a sentence of imprisonment was either unavailable or manifestly excessive.

[19]   We agree with the Court below that general deterrence is an important consideration in the area of drug dealing, but that is because it is a principle well established in civilian law.12   We resist the proposition implicit in the lower Court’s decision that membership of the Armed Forces is itself always an aggravating factor or that there is a separate tariff.  If the offending were wholly unconnected with the military context, then an armed forces offender should expect a similar sentence to a civilian. That said, any link between the offending and the offender’s position within the Armed Forces is likely to constitute an aggravating factor.  The stronger the link,
the more serious the matter may well be viewed because of the potential danger. Here the link is at the lower end.   In the first transaction, an offer to sell, two recipients  of  the  offer  were  also  soldiers.    Other  than  that,  the  offending  was
unconnected.

11         R  v  Terewi  [1999]  3  NZLR  62  at  [13]–[14];  Jarden  v  R  [2008]  NZSC  69  at  [12]–[15]; R v Andrews [2000] 2 NZLR 205.  Personal circumstances are given little weight:  R v Drever (2003) 20 CRNZ 96 (CA) at [22].
12	R v Terewi, above n 11, at [13].

[20]     Still on the topic of general deterrence, we accept the Crown’s submission that a sentence of detention may often provide insufficient deterrence in this area of drug dealing.   That is not to ignore the punitive elements of this sentence but it nevertheless still has the armed services context, the other detainees will be armed services personnel and the detainee is still on pay, albeit reduced.   Ultimately, however, whether these features satisfy the need for deterrence will be case specific.

[21]     We were referred to a large number of cases both from the military courts and courts of general jurisdiction.  None were on all fours and we did not find them of particular assistance.    Counsel had located only one previous case where imprisonment had been imposed by the military Court for drug offending.13    The details are sketchy but it seems to have involved obtaining and using cannabis oil, and  providing  it  to  another  person.    It  is  not  clear  whether  this  supply  was
commercial but it does not seem to have been.  The offending seems to have been much more closely linked to the offender’s base.   The sentence was nine months’ imprisonment.

[22]     That case appears to us to be a different type.  The offender was more of an addict than a dealer, and it seems he brought his addiction into his service life.  One of  the  charges,  for  example,  involves  trading  military  clothing  for  drugs.    By contrast, as noted, we see the present case as involving a member of the armed forces, outside his normal employment, acting as a very low level drug dealer.  As such the primary source of precedent are decisions of civilian courts.

[23]     We recognise the appellant has otherwise suffered hardship.  He has lost his employment and has been unable to complete his apprenticeship.  The matter was delayed, and it was hanging over him for quite some time.  He is a first offender who must now start again.  Notwithstanding this, we are not persuaded that a sentence of imprisonment, nor a term of four months, was a manifestly excessive response to the present  facts.    As  noted,  drug  dealing  and  imprisonment  are  always  a  likely
combination.

13	R v Froggatt, Court Martial 2048, Linton, 20 January 1992.

Conclusion

[24]	The appeal is dismissed.