A “traitor” soldier with links to far-right groups and who tried to spy on New Zealand should be sent to prison, the Crown says.
The soldier, whose name is for now suppressed, was at a court martial at Linton Military Camp near Palmerston North in August, and was sentenced to two years of military detention after admitting a charge of attempted espionage.
At the Court Martial Appeal Court in Wellington on Thursday, the Crown argued the soldier should instead serve a sentence in a civilian prison.
The defence said the soldier’s sentence was appropriate.
RNZ was also seeking permission to appeal against the ruling suppressing the name of the country the soldier thought he was passing information to.
Traitor soldier disloyal – Crown says
Crown prosecutor Lieutenant Colonel Rob Goguel said the sentence imposed at the court martial was “manifestly inadequate”.
The soldier came to the attention of authorities after the 2019 Christchurch mosque attacks due to his links to far-right groups, Action Zealandia and the Dominion Movement.
His court martial heard claims from the soldier that in 2019, from when the prosecution dates, he was under such intense scrutiny by the state that he expressed a desire to defect from New Zealand. He was 27 at the time.
He was caught in a sting that resulted in him thinking he was handing over information to a foreign country, whose name is suppressed. He was actually dealing with an undercover New Zealand agent snaring him in their trap.
After some back and forward the soldier handed over, or attempted to hand over, sensitive material such as maps of defence bases, his password to the Defence Force integrated exchange system and his ID card.
The soldier was arrested in 2019 and, after a short period in military detention, was on open arrest. It took more than five years for his court martial to happen.
He also admitted charges of dishonestly accessing a computer system and possessing objectionable material – a video of the 2019 Christchurch mosque attack and copy of the terrorist’s manifesto, found when he was arrested.
The soldier’s sentence was discounted for the time he spent on open arrest and his guilty plea to amended charges.
Goguel said the Crown didn’t object to those discounts, but did to the further small reduction given for the delayed hearing, as that was double counting the open arrest discount.
During that time the soldier was still paid, his family lived in subsidised military housing, and he could have a non-military job.
Goguel said if the court martial had properly set its sentencing starting point before giving discounts, military detention wouldn’t have been an option.
“The court martial failed to stand back and see where the end sentence adequately reflected the seriousness of the offending.”
To a soldier serving military detention a loss of privilege and strict regimentation would seem like their initial training, he said.
“It’s not the fear of the unknown.”
The soldier was on half pay for his term of military detention, whereas in prison he’d have no salary.
The “stigma of prison” was also needed for deterrence, and required the “clang of prison gates”.
Goguel said too much weight was placed on rehabilitation when sentencing he soldier.
But, there was no real remorse and the soldier wasn’t young and had no addictions.
“The absence of loyalty, betrayal of oath and being a traitor to his country are characteristics of this offending.”
His offending struck at the heart of the military’s values and the need to deter others should be the main part of sentencing.
Goguel said the Crown wanted a sentence of at least one year and eight months in civilian prison instead.
Soldier at risk living in military setting – Defence says
The soldier’s lawyer, Steve Winter, said the delay in getting to a hearing could have been longer if the charges weren’t amended late last year.
The soldier pleaded guilty to the changed charges as soon as he could in the first-of-its kind prosecution.
The discounts for the delay and for the lengthy period of open arrest were justified.
During open arrest, the soldier and his family lived at Linton Military base with his family, alongside people he’d potentially put at risk.
This placed extra stress on his family and was like placing an informant to live among a group of people they’d informed on, Winter said.
He said he wasn’t sure if the soldier had to live on the military base, but there would have been disruptions to his family if he’d left.
Prosecutors chose to charge the soldier in the military justice system knowing the option of military detention was available.
Winter said it was wrong to say rehabilitative aspects outweighed other factors.
The soldier’s crimes were military offending against the military ethos, and a military solution would be best for a charge of attempted espionage.
“It cannot be said that two years of rigourous military detention can be anything other than a significant deterrent and significant denunciation for a member of the military.”
The appeal judges, Justice Ian Gault, Judge Craig Ruane and Judge Robyn Loversidge, have reserved their decision on the sentence.
‘Heightened’ concerns at suppression order
RNZ was represented by Robert Stewart, KC, in seeking permission to appeal against the ruling suppressing the country.
Stewart said it was difficult for the media to argue against this order without seeing related material.
He and RNZ’s in-house counsel had since undergone security clearance so they could view the evidence.
Having now seen it, Stewart said it was fair to say concerns about the basis of the suppression order were “heightened”.
He said RNZ should have legal standing to appeal the suppression order.
The defence is also appealing against an order made at the court martial lifting suppression of the soldier’s name.
Due to sickness of the defence lawyer dealing with that matter, submissions for that would be made in writing.
The appeal continues.
rnz.co.nz
