Tointon, R. v

On an appeal against sentence imposed by a Court Martial, the appellate court must give proper weight to the specialist tribunal’s service knowledge and assessment of operational discipline. That deference does not remove the appellate court’s duty to correct a sentence that is wrong in principle or manifestly excessive.

Service sentencing guidelines have no statutory force. A sentence is not shown to depart from an applicable guideline merely because it exceeds the guideline entry point after the tribunal has assessed all offences and relevant aggravating and mitigating circumstances. A specialist Court Martial may take account of the operational prevalence and effects of desertion without the detailed local evidential basis expected where a civilian sentencing court proposes to depart from general guidelines for deterrent reasons.

R v Magnus Tointon was an application for leave to appeal against sentences imposed by a Court Martial on 14 April 2010.

The applicant pleaded guilty to desertion after failing to return from rest and recuperation to his unit in Afghanistan, intending to avoid further operational service. He later remained absent without leave from his unit for 100 days. He received dismissal and 15 months’ imprisonment in total, comprising 15 months for desertion and two months’ imprisonment concurrent for absence without leave.

He contended that the sentence was manifestly excessive because insufficient weight had been given to his guilty plea, youth and mitigation; the tribunal had failed to apply the guidelines in force when he offended; and deterrence had been based on an unsupported assertion of prevalence. The central issue was whether the total sentence was wrong in principle or manifestly excessive.

1. Application for leave to appeal against sentence refused. The total sentence of 15 months’ imprisonment and dismissal was neither wrong in principle nor manifestly excessive.

2. A Court Martial is a specialist sentencing tribunal. Its Judge Advocate and service members bring, respectively, general sentencing experience and service knowledge of disciplinary and operational matters. An appellate court must give proper weight to that expertise and to the tribunal’s feel for the gravity of desertion. That consideration does not emasculate appellate jurisdiction: a wrong sentence remains subject to correction.

3. The tribunal had considered the applicable guidance in force when the offences were committed. The earlier service guidance gave an entry point of dismissal and 12 months’ imprisonment for desertion involving avoidance of active overseas service. The later, more severe guidance did not apply. The 15-month total for two offences did not show that the tribunal had disregarded the earlier entry point, particularly as the tribunal had considered personal mitigation and the overall offending.

4. The tribunal was entitled to recognise the serious operational consequences of desertion, including the added burden and danger for fellow soldiers and reduced operational effectiveness. A civilian sentencing judge proposing to impose a materially guideline-exceeding deterrent sentence because of local prevalence would require a clearer evidential foundation. That comparison did not assist the applicant. The specialist tribunal could properly be assumed to understand the operational stresses caused by such offending, and the court found no departure from the applicable guidance.

5. The purportedly comparable case did not undermine the sentence because it involved a single charge, whereas this case involved both desertion and a later absence without leave.

• Court of Appeal (Criminal Division): The application for leave to appeal against the Court Martial sentence was refused.
• Court Martial: On 14 April 2010, the applicant pleaded guilty to desertion and absence without leave and was sentenced to dismissal and 15 months’ imprisonment in total.