Friday, February 14, 2014

Appellate review of sentence in Royal Navy case

Lord Justice
The Courts-Martial Appeal Court in London has reduced the sentence of Leading Seaman Kevin Moffat, a Royal Navy sailor with 25 years' service, who entered the stateroom of the executive officer of HMS Edinburgh carrying an assault rifle. According to this account in The News, "Moffat held up the weapon in one hand – without pointing it at anyone – and showed the bullets in the other, saying: ‘This is a loaded weapon. You know what that means. I want to talk to you’." Moffat, who was suffering from an adjustment disorder, was sentenced to three years confinement at trial. Reducing this to 14 months, the appellate court, per Lord Justice Christopher Pitchford, said the court-martial "failed to make significant allowance for the fleeting nature of Moffat’s loss of judgment" and that his previous experiences and background might have ‘overwhelmed him’. . . . We recognise the judgement was difficult. However, we are clear that, on the special facts of the case, in particular the character and personality of Moffat himself, three years was excessive."

The Courts-Martial Appeal Court is composed of civilian judges. What should be the standard for appellate review of court-martial sentences? What is it in your country?


  1. “Sentencing is far from being an exact science “ the Supreme Court of Canada ruled in R. v. L.M., (2008) 2 S.C.R. 163, at par.17. Under Canadian criminal law including military law, the sentencing judge is owed substantial and considerable deference by the appellate courts: R. v. Nasogaluak, (2010) 1 S.C.R. 206, St-Onge v. R., 2010 CMAC 7 in which the dissenting opinion of Cournoyer J.A. was approved by the Supreme Court, (2011) 1 S.C.R. 625.
    The reason for the deference owed to the sentencing judge is due to the “profoundly contextual nature of the sentencing process, the competence and expertise of the sentencing judge who has “served on the front lines of our criminal justice system” and possesses unique qualifications in terms of experience and the ability to assess the submissions of the prosecution and the offender: ibidem.
    Consequently the Court of Appeal can only intervene if the sentencing judge erred in principle in determining the sentence, failed to take into account relevant facts or took into account irrelevant facts, or gave undue or insufficient weight to a relevant factor.
    Applying these considerations to the facts and circumstances of this case, I have no doubt that the Court Martial Appeal Court of Canada on which I sat for almost 21 years would have intervened like the London CMAC did.

  2. The (civilian) U.S. Court of Appeals for the Armed Forces could not have adjusted a sentence on the grounds relied on in R. v. Moffat.


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