Court of Appeal dismisses appeal against military sentence for officer whose conduct was corrosive of discipline.

APPROVED JUDGMENT

NO REDACTION NEEDED

THE COURT OF APPEAL [2025] IECA 251 Record No: 132/2023 Edwards J. Kennedy J. Burns J.

Between/ THE DIRECTOR OF MILITARY PROSECUTIONS RESPONDENT V

R.O’S.

APPELLANT

JUDGMENT of the Court delivered by Mr. Justice Edwards on the 4th day of November, 2025.

Introduction

1. In Ireland, the Defence Forces comprise the Permanent Defence Force (“PDF”), which in turn has three branches namely the Army, the Aer Corp, and the Naval Service; and the Reserve Defence Force (“RDF”), which also has three branches, namely the First Line Reserve (comprising certain former members of the PDF), the Army Reserve and the Naval Service Reserve respectively (both of which are comprised of voluntary second line reserve personnel).

2. The appellant, who was a commissioned officer holding the rank of captain in the Army branch of the PDF, having been unsuccessful in his appeal to this Court against his conviction of certain offences at a military Court Martial (see judgment of the Court of Appeal bearing neutral citation [2024] IECA 279), now appeals against the severity of the sentences imposed on him on the 18th of April 2023 by the Military Judge.

3. The appellant, while serving in the PDF, was charged with 18 offences by the Director of Miliary Prosecutions (i.e., “the respondent” or “the DMP”) arising from events which occurred on the 25th of June 2020 at two locations at McKee Barracks, namely, the Barracks’ Gymnasium and the Officers’ Mess, and faced trial by Court Martial.

4. The appellant pleaded guilty on the 9th of September 2022 to a number of the charges on the charge sheet preferred against him (i.e., charges 1, 2 and 5, respectively), namely two charges of behaving in a disorderly manner, contrary to s. 142 of the Defence Act 1954 (“the Act of 1954”), and one charge of committing conduct to the prejudice of good order and discipline, contrary to s. 168(1) of the Act of 1954.

5. He proceeded to trial in respect of the remaining fifteen charges. Of these, four charges (charges 3, 4, 14 and 17, respectively) were withdrawn by the DMP during the trial.

Further, during the trial and following a ruling against him on a legal issue, the appellant pleaded guilty to two further charges (i.e., charges 9 and 12, respectively), being two charges of committing the civilian offence of assault contrary to s. 2 of the Non-Fatal Offences Against the Person Act 1997 (“the Act of 1997”), contrary to s. 169 of the Act of 1954.

6. At the end of the prosecution’s case, the appellant was acquitted by direction of the Military Judge of two of the remaining charges (i.e., charges 10 and 15, respectively).

Then on the 14th of October 2022, the appellant was convicted by the Court Martial of one charge of committing the civilian offence of sexual assault contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990 (“the Act of 1990”), contrary to s. 169 of the Act of 1954 (i.e., charge 13); and of one charge of committing the civilian offence of assault contrary to s. 2 of the Act of 1997, contrary to s. 169 of the Act of 1954 (i.e., charge 18). The appellant was acquitted by the Court Martial of the four remaining charges (i.e., charges 6, 7, 8 and 11, respectively).

7. The appellant was sentenced to fines and reprimands in respect of charges 1, 2 and 5 respectively. In respect of the remaining charges to which he had either pleaded guilty or had been convicted (i.e., charges, 9, 12, 13 and 18, respectively) he was sentenced to terms of imprisonment, varying between one, two and six months in duration to run concurrently, all of which were fully suspended for 12 months. He was also sentenced to the additional penalty on charges 13 and 18, respectively, of dismissal from the Defence Forces.

8. His appeal against the severity of his sentences is confined to the sentences on charges

13 and 18, respectively; and the appeal focusses primarily on so much of the sentence in each instance as directs his dismissal from the Defence Forces.

Factual Background

9. The Court in its judgment dismissing the appellant’s appeal against his conviction has already provided some detail in respect of the factual background to the matter (see [2024] IECA 279 para. 5 et seq.). As this judgment may be read in conjunction with our earlier judgment it is unnecessary to rehearse ad longum the facts underlying the present appeal as adduced in evidence before the Martial Court.

10. In summary, on the 25th of June 2020, Sergeant (“Sgt”) A and Company Quartermaster Sergeant (“CQMS”) B (i.e., “the complainants”) were on security detail at McKee Barracks. They attended at the Barracks’ gymnasium to lock up after a party, when they noticed the appellant, who was intoxicated and asleep in a chair. They had difficulty waking him and sought the assistance of a duty driver.

11. Having got the appellant into the duty driver’s car, they drove to the Officers’ Mess, where CQMS B and the appellant entered into its foyer.

Charge 13

12. The evidence on which this charge was based was that in the Officers’ Mess the complainant was facing to the left and tried to put her right side to the outside door.

She put her arms in front of her with her open palms facing the appellant. She said that in her mind she was saying “don’t touch him”; she believed that if she did, she would “get done”, by which she meant charged or get in trouble. She was shocked to realise that the appellant’s arms were on her lower back, “moving to the top of [her] bum and trying to pull [her] in towards him”. The appellant was pulling her lower body into him and pushing himself against her. The complainant said she was uncomfortable, trying to get out of the embrace and the appellant’s arms were moving up and down her back as he was saying, “come on, come on, come on”, pulling her into him.

13. When the complainant was asked what she perceived “come on, come on” to mean, she stated “Honestly, the only thought in my head was he’s looking for sex. … I didn’t think he was going to force me. The incident happened. He was trying to convince me.” The appellant’s tone was forceful but not shouting. CQMS B was trying to push her shoulders away. There were two lieutenants present, and the complainant asked them if they knew this guy (the appellant). The appellant let her go and went towards the other two individuals. The appellant was described as angry, annoyed and in a rage with them.

Charge 18

14. The evidence in support of this charge was that the appellant then turned and came back towards the complainant; she put her hands up to protect herself. The appellant grabbed her left forearm and her right wrist. They tugged back and forth. The complainant asked the other two individuals for help. The appellant let go of her arms and turned again to the other two individuals and gestured at them and told them to “fuck off”. The appellant turned back to CQMS B again, and she put up her two hands, open palms towards him and shouted “Stop. It’s not happening, sir. Goodnight.” She paused and then ran out of the door of the mess towards the car outside.

15. The appellant denied these two charges (to which he pleaded not guilty), however, he stated that he had no recollection of the events of the night after a certain point.

Specifically, he had no recollection of the events which occurred at the Officers’ Mess.

The Impact on the Victims

16. The military judge received victim impact statements from both Sgt A and CQMS B.

However, as CQMS B is the sole complainant involved in regard to charges 13 and 18, the appeal being confined to the sentences for the convictions recorded in respect of those charges, it is only necessary to review the impact statement of CQMS B for the purposes of this judgment.

17. In her impact statement CQMS B describes how her mental health was affected by adverse comments made about her and negativity directed towards her by others in her workplace in the aftermath of the incident. She felt she was being blamed for disciplinary and criminal charges being preferred against the appellant. She had particular difficulty coping due to her inability to discuss what happened with friends face-to-face due to the Covid lock down. The incident caused a strain in her marital relationship, as her husband is also a serving member of the defence forces. She volunteered for overseas duty, even though it meant being separated for the duration from her husband and children, as a means of escaping these adversities, but it proved to be no escape. Indeed, overseas duty caused her added stress when the circumstances of the case were publicised in the media at home, and it became common knowledge in the close community which she was then working. Her mental health deteriorated to the point where she was granted special leave to return home although there was no leave generally available for overseas personnel. She lost close friends as a result of the incident and considers that, since her return, her children have suffered as a result of her being irritable, snappy and labile due to ongoing stress and mental health difficulties. She has had difficulty in sleeping and has found the strain of the ongoing court proceedings difficult to bear. She concludes by saying that the impact of being involved in this has left her feeling raw with overwhelming sadness.

Personal Circumstances of the Appellant

18. The appellant has no previous convictions.

19. The appellant attested on the 3rd of October 2005 and has served continuously with the Permanent Defence Force since January 2007. He was last promoted, to the rank of Captain, in April 2018 and had not been demoted. The appellant received the following medals during his service: a UN Peacekeeping Medal in 2013; a UNIFIL Medal in 2013; a UNDOF Medal in 2016; a Numero to the UNDOF Medal (indicating a second awarding) in 2019; and a Permanent Defence Force Service Medal (officer) in 2021.

20. The appellant was described as a “young family man” and there was evidence that his wife and children rely entirely upon him and his income from the Defence Forces to “make ends meet”.

21. Positive testimonials were submitted from a Dr. Gerry Waldron, a medical practitioner and former colleague of the appellant now retired from the PDF; from the Very Reverend Fr. Patrick Mernagh, a former military Chaplin; and from the appellant’s father, himself a retired army Commandant.

22. There was evidence that, following the incidents the subject matter of the charges the appellant had presented to a clinical psychologist, Dr. Siobhán Coburn, with anxiety, depression and an existential crisis. He was deemed to be suffering with moderate to severe depression. Dr. Coburn assessed the appellant as being at a low risk of engaging in violent behaviour in the future. The appellant was also determined to be at a “below average risk” for future sexual offending.

23. The Military Judge directed the preparation of a pre-sentence report in respect of the appellant to assist him in sentencing. Such a report, dated the 26th of January 2023, was prepared by a Mr. Sean Maguire, a Defence Forces Occupational Social Worker. It outlined the offences, the appellant’s family background, his education, his career in the Permanent Defence Force, the appellant’s perception of the offences, the appellant’s response to the potential impact of his offences on the victims, and presented the assessor’s conclusions.

24. The assessor concluded that the appellant had demonstrated a pre-occupation with the Defence Forces Regulations A7, and with the procedures for dealing with breaches of those regulations, including asserting his belief that there could and should have been an informal resolution and that the matter should not have come before a military court.

He was described as failing to demonstrate any apparent level of insight into the distress/trauma caused to the Non-Commissioned Officer (“NCO”) victims in this case, while being able to speak openly and freely about the impact of these charges upon himself. The appellant acknowledged the fact of his intoxication on the occasion in question, and was apologetic for putting the NCO’s in the position of witnessing his conduct unbecoming of an officer. However, it appeared extremely difficult for the appellant to link problematic drinking with his offending behaviour.

25. It should be noted for the record and for completeness that at the sentencing hearing counsel for the appellant objected to the Military Judge receiving and taking into account the said Pre-Sentence Report on the basis that, while he acknowledged that his client had voluntarily co-operated with and engaged with the process of its preparation, he had understood and expected that it would be used solely to explore if there was any scope for a restorative justice intervention, which had not ultimately proved possible.

The Military Judge agreed in exchanges with counsel that that was indeed one of the reasons for which he had directed the preparation of the said report, but stated that he had also sought it, as he was entitled to under Rule 58 of the Court Martial Rules setting out pre-sentence procedure, as “the equivalent of, say, a probation report.” The Military Judge then offered to meet counsel’s concerns by making the report’s author available to be cross-examined by defence counsel, but this offer was not taken up. We note that the grounds of appeal against sentence subsequently filed contain no complaint concerning the Military Judge’s reception of, and consideration of, the said pre-sentence report.

26. A report from Forensic Psychological Services, authored by two psychologists, i.e., a Ms.

Hannah Deering and a Dr. Patrick Randell, and dated the 20th of March 2023, was also provided to the Military Judge. This report characterised the appellant as an individual who respects authority and rank. It reported that he displays insight into his behaviour at the time of the incident and that he had spoken respectfully of the victims and reflected on the impact this process must have had upon them. It noted that he had no history of offences and that his risk for engaging in violent behaviour in the future was assessed as low. It recommended that the appellant continue to refrain from alcohol consumption. He had no history of sexual offending, and his risk of sexual offending was assessed using various instruments as being at a level II below average risk. The report noted that the appellant enjoys spending time alone and has difficulty in motivating himself to make new friendships. He has a history of low mood, which first began in his teenage years. More recently he has been struggling with depression, anxiety and suicidal thoughts. However, he had demonstrated insight into his current mental health struggles and was said to be engaging in psychological intervention which was providing him with useful tools to address his symptoms. The report made a number of recommendations, including continued abstinence from alcohol and that he should avail of support services in that regard; that he should continue to engage in individual psychological therapy; and that he would benefit from expanding his support system by developing close meaningful relationships with other people as a protective factor.

27. There was also evidence estimating that the appellant’s pension entitlements, based on a retirement date of the 9th of February 2023, as providing him with a gratuity of €43,256.85 and a pension annuity of €8,409.42. As he was not yet 50 years of age, his gratuity and pension would be preserved until he was 60 years of age.

The Military Judge’s Sentencing Remarks

28. On the 18th of April 2023, the Military Judge passed sentence on the appellant. He noted the factual background to the case as described in evidence, specifically the five charges to which the appellant pleaded guilty (charges 1, 2, 4, 9 & 12) and the two on which the board had made a finding of guilty (charges 13 & 18).

29. The sentencing judge then noted that the sentencing exercise in a court martial may be somewhat different from that in civilian courts, bearing in mind the nature and function of the organisation which is the Defence Forces. He highlighted that “offences which may be at the margin of criminality or seriousness in terms of discipline in a civilian employment may be far more serious when committed by members of the Defence Forces in a service environment”.

30. Following this, the sentencing judge identified that the punishments available to the court when sentencing officers of the Defence Forces are set out in s. 209 of the Act of 1954. He noted that charges 9, 12, 13 and 18 are offences punishable by ordinary law and he identified the relevant statutory provisions as being s. 2 of the Act of 1990 and s. 2 of the Act of 1997.

31. The sentencing judge identified the relevant aggravating factors in this case as follows:

“Now, the aggravating factors and the mitigating factors I've considered in this case are in terms of the aggravating factors, your rank of experience. You are a commissioned officer with the rank of captain with 15 years’ service at the time of the offences. It could also have been said to have been an operational environment in that Operation Fortitude was underway and you were part of the HQ element of the joint task force which was tasked with conduct of operations and assigned tasks in support of the Health Service Executive and An Garda Síochána and other agencies in order to contribute to and support the national effort countering the debilitating effect of Covid 19.

Also, the offences happened when you were in uniform and in barracks, albeit after normal duty hours.

Another factor was the differential in rank, you were a senior captain, a commissioned officer and although the other parties were senior and experienced NCOs, they were subordinate to you by virtue of the rank structure. Also, your conduct involved interference with members of the Defence Forces in the course of armed security duties.

Further, the locus could be said in many ways to be the equivalent of a place of safety. The duty personnel were tasked with ensuring of the security of the installation. They were entitled to assume that they were safe from any threat to their welfare emanating from within the installation and particularly from Defence Forces personnel with whom they were serving as colleagues.

Also, your position of responsibility. Your appointment as PSO to the force commander. But also, your general and ongoing position of responsibility as a senior and experienced captain in the Defence Forces.

Also, there was in your conduct implicit a breach of trust, … of the trust reposed in you by your superiors in promoting you to the commissioned rank of captain and in nominating you to the appointment you held at that point. There was also a breach of the trust that the NCOs were entitled to have in any colleague in the Defence Forces, but more particularly in an officer of your rank and experience and appointment.

Also, the effect on service discipline. Your level of intoxication demonstrated a serious lack of self discipline and control. The interpersonal offences against the two duty personnel, but the type of conduct that seriously undermines morale and discipline and can cause a loss of confidence in the chain of command and difficulties in recruitment and retention in the Defence Forces.

Also, there was a measure of aggression or persistence and application of force both at the gym and in the mess. And I don't want to overstate this point, but your actions did require a physical resistance and push back on the part of each of the duty personnel and physical efforts on their part to disengage from your grip. And that was in addition to the physical dimension of your actions, they were each taken aback by your approach and [CQMS B] particularly said she was shocked by the intensity of the engagement. It was night time and the incident with [Sgt A] when she was on her own with you, the incident with [CQMS B] in the mess occurred largely in the presence of others but you made several efforts to remove the others from the scene which caused her to be apprehensive of being left on her own with you.”

32. In relation to mitigation, the sentencing judge made the following remarks:

“In terms of mitigating factors. I've taken into account your guilty plea on charges 1, 2, 5, 9 and 12 when they were first arraigned. Also, your previous good character, these were first offences, you have no disciplinary record of any type, military or civilian prior to this. Also, your good professional record. You have 17 years of service, you had successfully undergone numerous professional courses, including career development courses, including the Land Command and Staff course which has qualified you for promotion to Commandant. You have four overseas trips, one to Lebanon with UNIFIL and three to the Golan Heights with UNDOF.

I've also reviewed very positive annual reports which have been submitted to the court martial and those I have reviewed consistently show performance ratings by your commanding officers of very good or excellent. And all of that suggests a career on an upward trajectory. You are well regarded professionally as evidenced by your appointment as military assistant, or PSO -- I'm not sure which title, what was the title of the appointment, but that appointment is subordinate to the joint task force commander.

Also in your favour, your education both military and civilian. You've a primary degree in business studies and also a masters in crisis management from DCU.

I've also taken account of your family circumstances. You've a young family and a mortgage and you're the main provider for your wife and children. And I've taken account of the severe adverse impact of any sentence on your family.

Also, I've had regard to the contents of the psychological assessment that was submitted which I'll address in a moment. I've also taken account of the apology which was made directly to the two duty personnel and accepted by them the following week in the course of an in formal resolution of the matter pursuant to the procedures laid down in A7. Now, the weight of that apology however is tempered by the fact that there was no allegation of sexual assault in play at the time of the apology, so there appears to have been an element of mismatch between what you thought you were apologising for and what the victims understood you were apologising for. CQMS B said that she understood you were apologising for and I'm quoting her words, "For saying the words and putting his hands where she shouldn't have been." Nevertheless, you're entitled to some credit for the apology made and for engaging in the in formal resolution process.

I'm also noting and there was advanced by Mr Kavanagh in the plea of mitigation, that as part of that in formal resolution process, you were formally paraded and chastised by your commanding officer. Also, you've also sustained financial consequences in that you've been passed over for promotion twice and have lost out on acting up pay which you might otherwise have expected to receive and which you estimate in the region of €3000. Also, your co operation with the investigation. Also, I've taken account of the references and testimonials submitted, three in number, all of which speak very positively of you and variously a test to your good character, your professional as an officer and your commitment to your role of protector of and provider for your family.

There has also been a measure of rehabilitation in that you've given up alcohol and also you've engaged with professional counselling both within and outside the Defence Forces.

I've taken account also of what, again, Professor Thomas O'Malley refers to as social punishment and he says that, "The Supreme Court has said that the totality of the punitive consequences of an offence has to be considered." He refers to a case of CC v.

Ireland in 2006. He also refers to certain other consequences amounting to what might be described as social punishment as being acknowledged and considered by the courts.

Adverse publicity, social ostracism, impact on the offender's family and similar matters would come under this general heading. And he refers to Judge Keane in DPP v. GT where he said that the Court must have regard to the serious consequences of the conviction for the offender, apart all together from the effect of any sentence imposed by the Court. And O'Malley states that it's entirely reasonable to take account of the collateral consequences when selecting primary punishment and they are issues that I've taken into account.

I've listened also carefully to the plea of mitigation made by Mr Kavanagh on your behalf, and he states that you are regretful and hugely remorseful, that you're anxious to continue to serve and to permit the Defence Forces to benefit from your experience and to allow you to provide for your family. He says you've learnt your lessen in relation to alcohol and you have not consumed since and that this was a once off incident, that there's a below average risk of reoffending. And I've considered all of these points and all of what Mr Kavanagh has to say on your behalf in mitigation.”

33. The sentencing judge then referenced and noted the contents of the victim impact statements that had been submitted, the pre-sentence report on the appellant, and the psychological report of Ms. Deering and Dr. Randall. Then, as prelude to imposing sentence he further observed:

“…given the high bridge jurisdiction of the court martial to deal with both disciplinary and criminal offences and the purpose of the military justice system, the court martial must assess the nature and extent of the offending conduct proven in the seven charges in terms of its impact on the maintenance of discipline in the Defence Forces and the operational effectiveness of the defence forces. It's necessary to take the circumstances in which the individual offences were committed into account and not to view them in isolation from each other or from the relevant context. Offences which might be regarded on the lower end of the range of seriousness in civilian courts have in a military context more serious implications for the parties and for the Defence Forces. The offending conduct reflected in the offences now for sentencing falls in the view of this court martial into the upper range of seriousness of offending conduct coming before the court martial system. The interpersonal offences in particular represent conduct that has no place in the Defence Forces.”

34. It is appropriate to say in regard to the first of the two paragraphs just quoted, that while the transcript records use of the words ‘high bridge’, we are prepared to infer from the context that this was a mis-recording of ‘hybrid’. Nothing turns on it in any event.

35. The Military Judge further considered the Guidance on Sentencing published by the Judge Advocate General of the British Armed Forces in 2018, to which he had been referred by the prosecuting officer. He acknowledged that this document was not binding on him, not least because it emanated from a different jurisdiction and because “our system here is established on a different statutory and constitutional footing and with a different court martial structure”. Nevertheless, he considered that it provided a useful analysis of the applicable principles.

36. He noted, inter alia, that where an offender is an officer, sentences are likely to be higher to reflect the fact that the highest standards of behaviour are expected of those holding the President's commission, and he recalled explicitly the wording of that commission. He opined that the appellant had fallen short of the standards of behaviour expected of him.

37. He further noted that he was entitled to take account of service policy considerations, including the Dignity Charter of the Defence Forces. Again, he opined that the appellant’s conduct “was definitely, most definitely in breach of that charter to a significant degree”.

38. He noted that according to the guidance document, the higher the rank the greater the degree of culpability.

39. Further, he considered it was necessary to take account of the future employability of the appellant, both within the defence forces, and in circumstances where dismissal from the defence forces was a possibility, elsewhere. He noted that with a conviction for a sexual offence the appellant would not be deemed suitable for overseas service. He noted that availability for overseas service was a significant element of effective service for an officer of the appellant’s rank.

40. The Military Judge referenced the plea that had been made in mitigation which had urged upon him that the appellant’s conduct should be seen as a once off lapse and aberrational. In response to that, he commented that, “the military overlay and the other offences and the circumstances and the effect on the duty personnel bring it into the upper range of seriousness of offending in terms of cases coming before the court martial”, and that: “objective analysis of the background and circumstances here indicate to me that the court martial must lay down a marker for you and others that such conduct is just not acceptable, that it has no place in the Defence Forces, and that it has consequences that must be reflected in a proportionate punishment.”

41. The Military Judge then went on to say:

“In the circumstances having reflected on the matter, I do not consider that there's any real scope for any reparative, restorative or rehabilitative measure in the punishment to be ordered here. At its core is conduct which reflects lack of discipline and control in relation to alcohol, but more significantly which runs contrary to all principles of dignity and respect of safety and indeed the concept of teamwork inherent to the military service.

It has had a significant effect on the two duty personnel themselves, their relations with their families and their work and almost three years after the incident the effects are still bearing on them. So, the Court must, court martial must take a serious view of the entire incident and of the individual offences within it.

So, there's a requirement for a significant deterrent element, your conduct was an egregious breach of the ethos of service in the Defence Forces where every member has the right to be treated with respect, equality and dignity and to carry out their duties free from any form of harassment or bullying. Conduct such as yours on the night serves to prejudice maintenance of good order and discipline, to harm professional working relationships, to undermine morale and to compromise sufficiency and operational effectiveness. And the case would not be met adequately by the imposition of fines or reprimands or reduction in rank or seniority on the point or reduction in the point on the pay scale.

It's difficult in one way to separate the sum of the offending from its constitute parts, although it is recognised that the offences are of different nature, various nature. All of the offences are closely related, and all are highly objectionable and must be viewed in the wider context of the requirement for maintenance of discipline in the Defence Forces necessary to underpin operational effectiveness.

So, as I've said in terms of the type of misconduct coming before the court martial this case, given the nature and circumstances of the offences and the effect on the two duty personnel, is clearly above the mid and in the upper end of the range of seriousness.

And the nature and circumstances of the offences in all the circumstances here is such that the court martial finds it impossible to reconcile your conduct with continued service in the Defence Forces. I cannot reconcile your conduct, particularly in the foyer of the mess and what that conduct represents with continued service as an officer of the Defence Forces. This may have been out of character and may have occurred in a state of intoxication, but it was a serious affront to the rights of CQ [B] to dignity and safety in the workplace and it was conduct criminal in nature and corrosive of discipline in the Defence Forces.”

42. The Military Judge then imposed a sentence of 6 months imprisonment and dismissal from the Defence Forces in relation to charge 13. He imposed 3 months imprisonment and dismissal from the Defence Forces in relation to charge 18. All custodial sentences were to run concurrently. To account for the mitigating factors, the sentencing judge suspended the custodial sentences in full on condition that the appellant keep the peace and be of good behaviour during the period of suspension.

The Notice of Appeal

43. By a Notice of Appeal lodged the 12th of May 2023, the appellant advanced the following in support of his appeal against severity of sentence:

“The Court erred in imposing the sentence of dismissal from the defence forces in respect of Charges 13 & 18 which was excessive in all the circumstances and in particular:

1. Concluded that the dismissal from the defence forces was required in this case notwithstanding the significant mitigating factors and personal circumstances of the appellant who was a person with an unblemished character and was without prior or subsequent convictions.

2. Was disproportionate to the offending behaviour.

3. By failing to adequately take into consideration the testimonials and reports furnished in evidence by the appellant’s legal representatives.”

The Submissions of the Parties Appellant’s Submissions

44. The appellant states that no advance notice was given to him that counsel for the DMP was going to provide the trial judge with the United Kingdom Judge Advocate General’s Guidance on Sentencing at Court-Martial, version 5 dated January 2018. The appellant argues that no attempt was made by the DMP to set out what these guidelines consider to be a “serious sexual offence”, and states that this is important as §5.10 read in its entirety provides that “Dismissal (with or without disgrace) is almost inevitable apart from in the most exceptional cases”. It is contended that this left the sentencing judge with the impression that the dismissal of the appellant was almost inevitable as a matter of good practice.

45. The appellant notes that while the respondent opened §5.10.3 concerning minor sexual assaults, this was not done in its entirety. The appellant submits that the section in its entirety demonstrates that such offences, according to the guidance, usually warrant reduction in rank rather than dismissal.

46. It is also submitted that a number of other aspects of the 2018 Guidance were not adverted to by the DMP, namely §215, §214.1, and §2.12. It is stated that these guidelines might provide useful authority to an Irish court martial only if they are opened in full rather than in a selective manner which does not reflect the document.

47. The appellant notes that there appears to be no Irish authorities on the criteria to be applied in whether to dismiss. As such, he refers the Court to the UK cases of R v.

Downing [2010] EWCA 739; R v. Glenton [2010] EWCA Crim 930; R v. Squire [2009] EWCA Crim 2341; R v. McEnhill [1998] All E.R. (D) 723; R v. Whitworth [2003] EWCA Crim 2236; and R v. Coleman [2017] EWCA Crim 2346.

48. The appellant submits that the following mitigating factors are present in the case:

(i) “The offences were brief in duration and did not involve penetration or touching below clothes;

(ii) There was no grooming, violence, or premeditation;

(iii) The offences were not committed in a bedroom in the absence of other witnesses;

(iv) The offences were not committed as an aberration in an otherwise glittering career;

(v) The appellant is a family man with no previous convictions;

(vi) The appellant suffered adverse financial consequences;

(vii) The appellant has taken steps to rehabilitate and is not a high risk of reoffending;

(viii) The appellant co-operated with the investigation;

(ix) The appellant expressed remorse;

(x) The appellant was chastised for the offending behaviour.”

49. The appellant notes that the UK Guidelines relied upon by the respondent suggest that a reduction in rank is inevitable for minor sexual assaults, and that dismissal is said to be inevitable for serious sexual assaults. It is submitted that while the disparity in rank is an aggravating factor, it is insufficient to warrant it being characterised as a serious sexual assault.

50. Ultimately, the appellant submits that the decision to dismiss him from the Defence Forces was too severe and should be quashed. Respondent’s Submissions

51. The respondent submits that on any analysis the sentence imposed was lenient and that there can be no valid criticism with the reasoning of the trial judge in his conclusions.

52. In response to the appellant’s issue with the DMP’s reference to the UK Guidelines, it is stated that consideration should be given to the actual comments made by the trial judge in relation to the relevant guidelines (see transcript from the 18th of April, pg. 20, line 11). It is submitted that no issue could arise with this conclusion and that it is important to appreciate the relatively modest reliance placed on the guidelines by the trial judge.

53. In response to the appellant’s reliance on a number of UK cases (referenced above in para. 46), it is submitted that these cases, which are not binding, must be viewed as representing a “rather dated” view of matters. The respondent also notes that the cases referred to raise quite different issues to the present case. While it is noted that R v.

McEnhill does also involve an assault on a junior officer, the respondent distinguishes this from the instant case insofar as there was both persistence and a degree of force involved here by the appellant. Also, unlike the appellant, Mr. McEnhill had pleaded guilty, which spared the complainant from giving evidence and being cross-examined.

54. Ultimately, the respondent submits that the appellant has failed to identify any error in principle in this case and the sentences imposed were, if anything, lenient.

Court’s Analysis & Decision

55. We consider that there was absolutely nothing wrong with the Military Judge receiving a submission based on the UK Judge Advocate General’s Guidance on Sentencing at Court-Martial, and with him having regard to that material for its persuasive influence where relevant, providing he had due regard to the fact that there are constitutional, statutory and procedural differences in the legal frameworks within which court martials are conducted in the two jurisdictions.

56. That said, and once those differences are recognised and acknowledged, the frameworks in question are not so different as to render the exercise of considering guidance from the neighbouring jurisdictions of no value; on the contrary, we recognise the potential for such guidance to be of considerable assistance in informing a Military Judge’s general approach to sentencing within a military justice system where account requires to be taken of the fact that the court martial is not only an independent court concerned with the enforcement of the criminal law but also an essential part of the process for the maintenance of discipline within the military force concerned.

57. It should be noted that the Irish superior courts have on several occasions previously been prepared to have regard to sentencing guidance from other jurisdictions for its persuasive influence, e.g., see para 40 of the judgment of Charleton J in People (DPP) v.

Faulkner [2024] IESC 16; also, para 86 of the judgment of the Court of Appeal in People (DPP) v. M.R. [2022] IECA 192; and also, paras 32 and 33 of the judgment of the Court of Appeal in People (DPP) v. T.D. [2021] IECA 289.

58. It is clear that the military judge approached the guidance document tendered to him, and the submissions based on it, with due circumspection and with appropriate care. He said:

“…this court martial is not bound in any way by the guidelines set out in that document, but it does provide a useful analysis of the principles applied in the court martial system at first instance and appeal in that jurisdiction. And our system here is established at a different statutory and constitutional footing and with a different court martial structure, the guide does however articulate an approach to sentencing which reflects in many ways principles and rationale already applied and articulated in the sentencing process in our court martial system. It outlines the issues that apply uniquely to sentencing in a court martial that do not apply in the civilian courts and the outline presents a useful commentary on matters of general applicability to military discipline.”

59. In particular, he very properly did not seek to equate the offences of which this appellant had been convicted/had pleaded guilty to, with any offences under the law of the neighbouring jurisdiction or to rely on offence specific guidance from that jurisdiction.

60. In so far as offence specific sentencing was concerned, while the Military Judge had due regard to the specific military justice context in which he was required to sentence, and the requirement that the court martial should in doing so assess the impact of the offending conduct on the maintenance of discipline within, and on the operational effectiveness of, the Defence Forces, he otherwise only had regard to the facts as established in evidence before the Court-Martial, the range of statutory penalties available to him both under Irish civilian law and under Irish military law, and to wellestablished principles of Irish sentencing law. These principles, such as the requirement that a sentence should be proportionate both to the gravity of the offending conduct and the circumstances of the offender, are grounded in the Constitution, on statute law where it applies and on the common law, and they apply equally in the military and civilian criminal justice contexts. We are satisfied that he adopted an entirely proper approach and method of proceeding.

61. In particular, the military judge had due regard to s. 209(1) of the Act of 1954 (as amended) which sets out a scale of punishments that, in the case of officers, can be handed down in a court-martial in decreasing order of gravity. The subsection provides:

“Subject to section 192, punishments may be awarded in respect of offences against military law committed by persons subject to military law as officers and convicted by court-martial according to the following scale: SCALE.

A. Imprisonment for life or any specified period.

B. Dismissal with disgrace from the Defence Forces.

C. Dismissal from the Defence Forces.

D. Where the person convicted is an officer, reduction to any lower commissioned rank.

E. Forfeiture of all seniority of rank or of a specified term of seniority.

F. Reduction to any lower point on the scale of pay for the rank held.

G. (a) In the case of a person subject to military law as an officer under section 118(1)(a), (b) or (c), a fine not exceeding fourteen days’ pay of the person at the most recent rate payable.

(b) In the case of a person subject to military law as an officer under section 118(1)(d) or (e), a fine not exceeding the maximum fine awardable for the time being by a court-martial to an officer holding the rank of second lieutenant who is in receipt of the maximum pay applicable to that rank.

(c) In the case of a person who is not a member of the Defence Forces but who was an officer when the offence was committed, a fine not exceeding an amount equal to fourteen days’ pay at the most recent rate applicable to his former rank.

H. Severe reprimand.

I. Reprimand.”

62. Section 209(5) goes on to provide:

“(a) Where an officer is sentenced to a term of imprisonment of more than six months, the military judge shall, in addition, sentence him to dismissal with disgrace from the Defence Forces or dismissal from the Defence Forces.

(b) Where an officer is sentenced to a term of imprisonment of six months or less (other than under section 208(2)), the military judge may, in addition, sentence him to dismissal with disgrace from the Defence Forces or dismissal from the Defence Forces or reduction to any lower commissioned rank.”

63. The appellant emphasises that there are no Irish authorities on the criteria to be applied in whether to dismiss. The point is made that in the United Kingdom there is a body of case law suggesting that, in that jurisdiction, dismissal for what is characterised as “minor sexual assault” by an officer is not automatic, although a reduction in rank may be inevitable. The cases to which we were referred were R v. Downing [2010] EWCA 739; R v. Glenton [2010] EWCA Crim 930; R v. Squire [2009] EWCA Crim 2341; R v.

McEnhill [1998] All E.R. (D) 723; R v. Whitworth [2003] EWCA Crim 2236 and R v.

Coleman [2017] EWCA Crim 2346.

64. It was accepted on behalf of the appellant that the caselaw suggests that in the UK dismissal is inevitable for a serious sexual assault, but the appellant contends that the circumstances of charge 13 in the present case would not qualify as serious sexual assault, certainly before a civilian court, nor should the circumstances of the (nonsexual) s. 2 assault the subject matter of charge 18 be regarded as serious.

65. The respondent disputes that the circumstances of the offences the subject matters of charges 13 and 18, respectively, were not serious, pointing to the following circumstances, noted by the Military Judge in his sentencing remarks, which the DMP contends are aggravating:

- the fact that the appellant was in uniform and in a barracks;

- the differential in rank where the appellant was a senior captain, a commissioned officer and the other witnesses were subordinate in rank;

- the conduct involved interference with members of the Defence Forces in the course of armed security duties;

- that the locus could be said to have been the equivalent of a place of safety and that the duty personnel were entitled to assume that they were safe from any threat to their welfare within the installation and particularly from Defence Forces personnel;

- the appellant’s position of responsibility and breach of trust;

- the effect on service discipline and the undermining of morale and discipline;

- the aggression and persistence and application of force both at the gym and the mess; and

- the efforts made at the mess to remove the other officers from the scene causing the complainant to be apprehensive of being on her own with the appellant.

66. Further, the appellant pointed to the significant mitigation in the present case. The mitigation relied upon is set out earlier in this judgment at paragraph 47.

67. The appellant contends that given the nature of the offences at issue, and the existence of the mitigating circumstances pointed to, dismissal from the Defence Forces was a disproportionate penalty.

68. We consider that the Military Judge approached this issue with great care. It is manifest that he gave it deep consideration. Though implicitly invited to do so, he neither sought to equate the conduct which was the basis of charge 13 with any offence under UK law, nor sought to opine as to whether it would qualify as a “serious” sexual assault in that jurisdiction. Similarly, he also did not equate the conduct which was the basis of charge

18 with any offence under UK law. He concerned himself solely with assessing the gravity of the offending conduct in each case according to our own law and in doing so took due account of the fact that the offending conduct was committed in a military context. He properly noted that “[o]ffences which might be regarded on the lower end of the range of seriousness in civilian courts have in a military context more serious implications for the parties and for the Defence Forces”, and stated that in his assessment “[t]he offending conduct reflected in the offences now for sentencing falls in the view of this court martial into the upper range of seriousness of offending conduct coming before the court martial system.”.

69. Ultimately, he concluded that dismissal was required in the circumstances of the case, and he gave detailed and cogent reasons for so concluding. The reasons he gave were those set out earlier in this judgment at paragraph 40.

70. We accept that the Court Martial, presided over by the Military Judge, has an expertise in relation to whether dismissal is required in the circumstances of any case and bearing in mind the specific military justice context. As is true in the case of sentencing before any court in this State, when military personnel are being sentenced at Court Martial, the Court Martial must apply a dual proportionality test. What this means is that the sentence to be imposed must be proportionate on the one hand to the gravity of the offending conduct and on the other hand also proportionate to the personal circumstances of the offender; in other words the sentence must be one which is appropriate not just to the offence, but rather to the offence as committed by the particular offender in his/her particular circumstances. However, because the offending has been committed in a military context, where military discipline applies and standards of behaviour appropriate to service in the military are expected - extending in the case of an officer, to the provision of leadership and the setting of an example to subordinates and personnel in lower ranks - there may be additional considerations to be taken into account in the assessment of the gravity of offending conduct and of the mitigatory effect of personal circumstances. A Military Judge engaged in a sentencing following the conviction of a member of the Defence Forces at Court Martial must, in addition to taking into account factors that would fall to be weighed at a sentencing in a civilian court, take into account the impact of the offending conduct on the maintenance of discipline within, and on the operational effectiveness of, the Defence Forces.

71. We do not accept counsel for the appellant’s submissions that the sexual assault the subject matter of charge 13, and the non-sexual s. 2 assault the subject matter of charge 18, necessarily involved low range offending. It was somewhat inappropriate to speak of a range at all, as no court to date has provided sentencing guidance suggesting a division of the range of penalties, and providing indicative examples of cases fitting into different sub-ranges, for sexual assault, or for assault contrary to s. 2 of the Act of 1997. There is guidance which does so in relation to rape and more serious non-sexual assaults, but that has no application here. We accept that the sexual assault in this case was non-penetrative and that the physical contact involved in it amounted to unwelcome touching accompanied by remarks bearing a sexually suggestive innuendo.

The s. 2 assault was confined to the causing of apprehension of unwelcome physical contact. However, the assessment of gravity involves a synthesis of both culpability and harm done. What cannot be gainsaid is that the psychological impact on both victims was significant and lasting, with CQMS B, in particular, being badly affected. All of that being said, we accept that if these matters had been before a civilian court that it is possible that they might have been adjudged as meriting, in the case of a first-time offender, a non-custodial outcome. However, the fact that the offences occurred in the military context changes the calculus. As was correctly stated by the Military Judge, a court-martial enjoys jurisdiction to deal with both disciplinary and criminal offences and in passing sentence it must, in addition to having regard to considerations that would be relevant before a civilian court, also assess the nature and extent of the offending conduct proven in terms of its impact on the maintenance of discipline in the Defence Forces and the operational effectiveness of the Defence Forces. In the present case, and as the Military Judge pointed out, the fact that the appellant was an officer in a disciplined force and that he fell short of the standards and personal qualities that were expected of him (as reflected in the wording of the President’s Commission), were both highly relevant facts. The Military Judge suggested that the conduct of which he was convicted was not just criminal in nature, but that it was “corrosive of discipline in the Defence Forces”. We are satisfied that it was within the legitimate purview of his role to arrive at that conclusion. There was a clear evidential basis for it, and we regard it as unassailable.

72. The ultimate sentences determined upon by the Military Judge as being appropriate were non-custodial ones, but the suspended prison terms he nominated were to be accompanied by a direction that the appellant be dismissed from the Defence Forces.

We find no error of principle on the part of the Military Judge in so determining. We do not consider the sentences to have been disproportionate in all the circumstances of the case, and particularly the finding that the appellant’s conduct was corrosive of discipline in the Defence Forces. The military judge was entitled to conclude, after due consideration, that none of the lesser penalties provided for in s. 209 of the Act of 1954, such as reduction in rank, would have met the justice of the case. Having regard to his judgment that the appellant’s conduct could not be reconciled “with continued service as an officer of the Defence Forces”, his arrival at that conclusion was justified.

73. The appeal against severity of sentence is dismissed.