Corporal Michael Foley

 
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1998 WJSC-CMAC 7227

THE COURTS-MARTIAL APPEAL COURT

Blayney J.

Carroll J.

Geoghegan J.

4CM/92
CORPORAL MICHAEL FOLEY
CORPORAL MICHAEL FOLEY
Appellant
Blayney J.
1

This appeal has been very fully presented by Mr. de Bruir on behalf of the appellant, Corporal Michael Foley. Corporal Foley pleaded guilty to the offence of assault, occasioning actual bodily harm. He was fined £300, which subsequently was reduced, by Corporal Foley's commanding officer, to £150.

2

One of Mr. de Bruir's main submissions to us is that the effect of this fine is to produce a totally unfair and inequitable consequence because Corporal Foley, who has been in the army for twenty-one years and who has an excellent record, having nothing on his records since 1976 and had only two minor matters before that. The effect of a fine of £150 is that Corporal Foley will now automatically be rated as unsatisfactory, that his term in the army will come to an end next month and that because his ratings are unsatisfactory he will be ineligible to engage in the army again. He submits that this Court should take into account the fact that the consequences, which such a fine would have, were not made known to the solicitor, who was defending Corporal Foley, but more importantly, were not put before the Court so that the Court-Martial in deciding what was the appropriate sentence would be aware of the effect that their sentence would have???

3

The Court takes the view that the latter part of this submission is a valid submission. The Court also takes the view that the Court-Martial should have been informed of the effect that a fine in excess of a particular figure would have in the particular case. It seems to this Court that this was a very relevant matter for the Court to consider in deciding what the appropriate punishment was. By reason of the fact that this was not put before the Court-Martial it seems to this Court that the probability is that while the members of the Court-Martial may or may not have had knowledge of the particular regulations in question nonetheless it is not clear to this Court that they necessarily had such knowledge and so it is not clear that they would have taken these regulations into account in coming to their decision.

4

It seems to this Court that it is a matter which they ought to have taken into consideration and so...

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