The Court of Appeal set aside rank reduction and discharge penalties imposed on a former Defence Forces corporal, then resentenced him on two counts. It found that the military judge lacked power to impose those penalties after he had already left the Defence Forces, and that the uncertain effect on his pension made the rank reduction an error of principle.
The appeal concerned sentences imposed after a limited court martial. The appellant had been convicted of six counts arising from incidents at Aiken Barracks in Dundalk on 30 October 2013, following allegations by Corporal C. His separate appeal against conviction had been dismissed in June 2016.
Before sentencing, the appellant had been granted a discharge from the Defence Forces on 9 July 2015, after 21 years’ service. The military judge sentenced him in January 2016. Among the penalties were reductions to Private on Counts 3 and 5 and an order discharging him from the Defence Forces on Count 5. The Court of Appeal held that the law permitted trial and punishment for offences committed while subject to military law, but the statutory penalties of rank reduction and discharge applied only to serving members who could still hold rank or be discharged.
The appeal court also found that the military judge imposed the rank reduction without knowing whether it would reduce the appellant’s pension. The possible lifetime financial effect could be substantial, and the court said imposing the penalty without certainty about that consequence was an error of principle.
The court left the sentences on Counts 2, 4 and 7 unchanged. It resentenced the appellant on Count 3, concerning entry into a women’s sauna while undressed, to one month’s imprisonment, suspended for six months on a €100 good-behaviour bond. It also imposed a €500 fine, payable within 12 months, with one week’s imprisonment in default.
On Count 5, the sexual assault count, the court imposed six months’ imprisonment, suspended for 12 months on condition that the appellant enter a €100 bond to keep the peace and be of good behaviour. The judgment described both offences as serious, with Count 5 the more serious, but placed them in the lower to middle range. It said the conduct involved no actual violence or threat of violence, while recognising the difficult and fearful situation it created for Corporal C.
The court noted mitigating factors including the appellant’s first offences, long service and positive reports from four overseas tours. It also recorded that Corporal C had endured a full trial and that there was no evidence of remorse or an attempt to make amends. The supplied judgment excerpt ends after setting out the Count 5 sentence; it does not include a concluding order or any further directions.