1998 WJSC-CMAC 13073
THE COURTS-MARTIAL APPEAL COURT
Words & Phrases:
This is an appeal by Private Michael Waters against a decision of a Court-Martial by which he was found guilty of desertion. He was directed to be imprisoned for twenty-one days and to be discharged from the army.
Mr. O'Keeffe, acting on behalf of Mr. Waters, accepts that before this Court can interfere in any way with the decision of the Court-Martial that it is necessary that he should show that that decision was in some way wrong in principle. He says that there was an error in principle - the principle he says was that of proportionality. In other words in effect that the punishment decided upon by the Court-Martial should have been proportionate to the particular offence. That perhaps is another way simply of saying that the sentence was excessively severe.
The Court is not satisfied that a principle of proportionality does, in fact, exist while obviously a court always has to look at a severity of sentence but even if the Court were to accept that such a principle did exist we are satisfied that there was no breach of that principle here.
Private Waters was absent from the army for a period of nine years from the 9th September, 1983 to the 24th September, 1992. It is impossible not to have sympathy for him because obviously he did suffer a very great emotional trauma when his girlfriend deserted him for his best friend but one has to look at the situation from the point of view of the army as well as from his point of view. It seems to the Court that the Court-Martial, having come to the conclusion on the facts that it was a case of desertion rather than being absent without leave, and the fact being that the desertion had lasted for nine years that it could not be said that the sentence of discharge from the army was too severe.
I might add that it seems from the evidence which was given by Private Waters in the Court-Martial that the main reason that he gave himself up was a very sensible reason that he wanted matters put right. He did not want to remain in this invidious position of having been in the army and there having been no clear and appropriate break of...
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