English and Welsh Courts - Miscellaneous

IN THE COURTS-MARTIAL APPEAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st March 1999

The Vice-President:

(Lord Justice Rose)

1. This is the judgment of the Court, which has been prepared by Mr. Justice Burton, but to which all members of the court have contributed. The Court's jurisdiction results from the amendment of Section 8 of the Court Martial Appeals Act 1968 by Section 17 of the Armed Forces Act 1996 which has introduced a right of appeal against a sentence imposed at a court-martial. There are three appeals, one in respect of a sergeant in the army, Stephen Cooney, and two in respect of personnel in the Royal Air Force, Peter John Allam a corporal and Colin John Wood, master air crew. The same principles apply to Courts-Martial Appeals in respect of both army and air force, and, although no specific submissions have been addressed to us in respect of the Royal Navy there is no reason to believe that there would be any difference. The cases raise matters of some importance in relation to the sentencing of military personnel for civilian offences of which they have been convicted at court- martial.

The Facts

2. Cooney had sixteen years accrued service in the army. He was convicted on 6th February 1998 at a general Court Martial held at Colchester (Assistant Judge Advocate General Woolam) of two charges of indecent assault. He was sentenced to be imprisoned for six months, to be dismissed from the service and to be reduced to the ranks and, an order was made under the Sex Offenders Act 1997: a review of conviction and sentence was refused on 16th March 1998. He sought leave to appeal in respect of both conviction and sentence and, after refusal by the single judge, leave to appeal in respect of sentence only was given by the full court on 15th October 1998.
3. The facts of the offences, which were both committed on the same evening and arose out of the same course of conduct, were that, on 31st January 1997, a 14½ year old girl was acting as baby-sitter for the appellant and his wife and had arranged to sleep at their house as they expected to be back late. In the early hours of 1st February the Appellant returned alone. On the baby-sitter's account he entered her bedroom on two or three occasions, wearing only boxer shorts and tried to kiss her. On the first occasion he asked if he could get in bed with her. She refused and pushed him off, as she did when he tried to kiss her. He asked whether she was warm enough and brought her a blanket, but she said she wanted to go to sleep. He left the room only to come back and again ask if she was warm enough and he tried to kiss her. She again pushed him off, as she did when he made a further attempt to get on top of her. He then desisted. Some time later she heard the appellant's wife return and an argument. The appellant claimed that he only entered her room once and fully clothed. However, the girl accepted that he did not hurt her or touch her physically. So far as mitigation was concerned, the Defendant had one long-spent conviction for theft and one military offence, but was effectively treated as of good character. Unfortunately, his wife had lost the baby she was carrying on the very day before the sentence was imposed. The significant military factor was an excellent reference from his commanding officer Major Berragan, describing him as a dedicated and hard working senior non-commissioned officer, who had provided a fine example of a professional soldier: he wished to retain him in the unit. The Judge Advocate in sentencing said that account was taken of the mitigation, the appellant's previous good character, his long service to the army and the fact that the assaults were opportunistic, relatively minor and did not physically hurt the baby-sitter. But he regarded it as a betrayal of trust of the baby-sitter and her parents, who lived two doors away, and noted that she had been frightened and distressed.
4. Allam was convicted on 14th May 1998 at a general Court- Martial at RAF Station Bruggen (Deputy Judge Advocate General Berkson) of one charge of causing death by dangerous driving. He was sentenced to 18 months imprisonment, to be dismissed from the service and to be reduced to the ranks: his sentence was reviewed and he was notified on 1st July 1998 that there would be no variation to either finding or sentence. He appealed against sentence, by leave of the full court.
5. The facts were that, at about 8.20 pm on 16th April 1997, he was driving at about 50 mph, some 10 mph over the relevant speed limit, from Holland to Germany, with four passengers, including a close friend of his, SAC Davies, who was sitting in the middle of the back seat. On a left hand bend, shortly after crossing the border, he lost control of the vehicle and collided with trees on the right hand side of the road. SAC Davies received fatal injuries. The dangerous driving was found to consist simply of driving too fast into the bend. There was no question of drink, or of racing, and the appellant remained at the scene to help despite his own injury. He was in hospital for 10 days and suffered continuing problems thereafter. He had been in the service 18 years. He was treated as effectively of good character. Although divorced, he had three dependent children. The significant military factor was the excellent reference given by his commanding officer, Flight Lieutenant Lamont, who described him as having "huge potential for the service"; he had "nothing but admiration for the manner in which he had conducted himself" and wanted to keep him on in his unit. The learned judge advocate said that he had taken account of the mitigation, the Appellant's good service record and the favourable reports. He concluded that the dangerous driving was not a momentary reckless error of judgment because he had approached a blind corner at excessive speed.
6. Wood had been in the service for nearly 30 years, but had already decided to take early retirement and had put in for a redundancy scheme which, but for his conviction, would have resulted in his discharge from the service with a sum of approximately £40,000. He pleaded guilty on 18th May 1998 at a general Court Martial held at RAF Station Lyneham (Assistant Judge Advocate General Woollam) to two charges of false accounting and was sentenced to be dismissed from the service and fined £1000. He was put under stoppages of pay until he made good the sums fraudulently obtained, namely £60.30 and £80.40. On review on 18th June 1998, the sentence was varied in that the order for stoppages of pay was quashed and an order was made that he be reduced to the ranks. He appealed against sentence by leave of the single judge.
7. The facts were that, in July 1996, he was given authority for resettlement training in Italy, between August and November 1996, pursuant to the arrangement that he was to leave the service. The charges arose from subsistence claims made in connection with his attendance on that course: he represented that he had been staying in a hotel, thus applying for and receiving subsistence allowance at the hotel rate, when in fact he had stayed in private accommodation. He did this on two occasions, in September and in November, receiving a total of £1146.60 when he should only have received £1005.90, hence a total gain of £140.70. The Appellant, who is now 48, is married with two dependent children: he had earned a Gulf Medal and a UN Medal in Bosnia. He was entitled to be treated as of good character. His explanation for the offences was that he had applied for redundancy, intending to live and work in Italy engaging in his wife's family business: when granted his redundancy he had borrowed about £20,000 from an Italian bank, expecting to repay it once the redundancy sum was received. In the meantime he had been in financial difficulties, although he asserted that, as he had had to pay the business acquaintance with whom he had stayed for the accommodation, he had made no financial gain from the offences in any event. The Certificate of Discharge prepared for his redundancy described his service conduct as exemplary. His Squadron Leader described his work as "of the highest standard" and Wood as "an aviator of considerable ability". There was no question of his being retained in the service, as he wished to leave to join the family business as planned. The submission by way of mitigation in his case was that he should not be dismissed from the service because of the financial impact upon him in respect of his loss of redundancy. The learned judge advocate in sentencing concluded that he should treat the offences seriously because they were easy to commit, not easy to detect and public funds were lost. Having regard to the plea, the relatively small amounts involved and the Appellant's many years of service, he would not impose a custodial sentence. But he imposed the dismissal and fine, indicating that dismissal was not such a severe penalty for the Appellant as he had already decided to leave the air force.

The Financial Impact

8. The issue which is common to all three cases is the financial consequences of the sentence to the appellant. By virtue of Section 71 (3) of the Air Force Act 1955 and the same sub-section of the Army Act 1955 (and Section 43(3) of the Naval Discipline Act 1957 is to the same effect) a person sentenced by court-martial to imprisonment shall also be sentenced to dismissal from the service. Dismissal, whether thus automatically accompanying imprisonment or when expressly ordered, as it was in relation to all these appellants, carries its own automatic sanction, namely loss of entitlement to salary, free or subsidised accommodation and loss of or diminution in pensions, lump sums, gratuities and redundancy payments. The precise loss in relation to the appellants is still not entirely clear. In the case of Wood his only financial loss appears to be of a redundancy payment of £40,000; the scheme for which he was qualified had a time deadline for which, by virtue of the fact that he was facing proceedings, he was no longer able to meet, and no such similar scheme was or would be thereafter available for him. He does not appear to have suffered any diminution in pension entitlement: after credits, his solicitor estimates his total net loss as £23,400.
9. So far as Cooney and Allam are concerned, however, their losses are more substantial.
10. Whereas Wood was leaving the service, Cooney expected to continue in the army for a further 6 years at the salary he was then receiving of £1,189.84 (not including overseas allowance) per month net. Whether or not he would be able to replace this in civilian employment (which, according to a helpful supplementary probation report made in November of last year, was not proving easy), he has, in any event, suffered a permanent loss by way of pension entitlement. Had he served for a further 6 years he would have retired after 22 years service with an annual pension of £6,822 gross, paid to age 55 and thereafter index linked. The total loss of pension has been calculated for the court by counsel for the Army Prosecuting Authority on a simple arithmetical, not an actuarial, basis as £105,058.80 net in respect of the period from age 40 to age 60. Additionally he has suffered loss in respect of his tax free gratuity. On retirement at age 40, after 22 years service, he would have received £20,466. By reason of his dismissal he is only entitled to receive a tax free gratuity at age 60, i.e. not for another 20 years, and then only £13,544.64. Set against this, he receives a tax free resettlement grant of £6417 which he would not otherwise have received.
11. Allam has lost the opportunity of continuing in the air force for a further 5 years and 285 days at a monthly salary of £1,815.05 gross, without allowance for promotion, inflation or accommodation. His chances of alternative employment cannot yet be tested, as he has only just completed serving his sentence. More significant is his inevitable permanent loss of pension entitlement. His net loss of pension from age 40 to age 60 is calculated by his solicitor at some £95,000; in addition, he loses a tax-free gratuity payable at age 40, of £18,474, receiving instead, 20 years later, a lesser sum of £12,579.33. He therefore like Cooney, has suffered a six figure financial loss.

The three cases

12. The three cases have shared features and raise similar issues:-

(i) Scale of criminality. The offences of all three appellants are at the lower end of the scale of criminality. Cooney's indecent assaults, though unpleasant and involving, as the learned assistant judge advocate general pointed out, a breach of trust towards other members of the military community, did not involve any actual physical interference. Wood's dishonesty was a plain breach of trust by a responsible officer, but the sums involved were small. Allam's dangerous driving did not have any of the aggravating features and had all the mitigating features identified in Boswell 79 Criminal Appeal Reports 277. It was speed alone which caused him to lose control on a bend. He himself was injured. The victim who died was a close friend and he did everything to assist at the scene.

(ii) Custodial Sentence. All the offences were, notwithstanding their being at the lower end of the scale of criminality, offences which in a Crown Court would, certainly in the case of Allam, probably in the case of Cooney, and possibly given the breach of trust, in the case of Wood, have attracted a custodial sentence.

(iii) Financial Impact. By virtue of dismissal, the financial impact upon all the appellants was very substantial. In a civilian context, some defendants upon conviction may well lose their job and some, for example policemen or teachers, may lose free or subsidised accommodation, pensions, redundancy payments or gratuities. But this is not, generally, the automatic result of the court's sentence; and, in any event,such substantial consequential loss would usually be put before the Court in mitigation. Allam and Cooney in a civilian context, may well not have lost their jobs and they and Wood would have been unlikely to lose their entitlements to pensions, lump sums and/or redundancy payments.

13. It appears to us essential that there should be put before a court-martial, prior to sentence, the likely financial consequences of dismissal We suggest that consideration be given to amending the Sentencing Guide (to which we refer below) to reflect this.

Civilian and Military Courts

14. The question arises in these appeals as to whether, and to what extent, the sentence for similar offences should differ as between civilian and military courts. There are, it seems to us, four particular factors to be considered:-

1. The types of sentence available.

2. The consequences of some sentences imposed by a court- martial.

3. The differing roles of civilian and military courts.

4. The difference between the service and civilian context of offences and sentences.

x1. The sentences available.

15. We shall refer only to the relevant Army and Air Force Acts but, as we have previously indicated, we do not believe that there would be any difference in principle if naval offences were before us. By Section 71 (1) and (2) of the Air Force Act 1955 and of the Army Act 1955 the following sentences relevant to these appeals are available to a court-martial: in relation to officers, non-commissioned officers and other ranks, sentences of imprisonment, dismissal, with or without disgrace, and a fine; in relation to non-commissioned officers and other ranks only, a sentence of detention for a term not exceeding two years ("service detention"); and for non-commissioned officers, but not for officers, a sentence of reduction to the ranks or reduction in rank. Apart from the direct impact of a court-martial sentence on service employment by virtue of dismissal or demotion, the obvious distinction from civilian courts is the availability of service detention. By virtue of Section 71(4) of the relevant Acts, any non-commissioned officer who is so sentenced must additionally be sentenced to be reduced to the ranks. Service detention is explained, so far as the RAF is concerned, in the Imprisonment and Detention (Air Force) Rules 1980 (the"Detention Rules") at Rules 34-42 and 53. In particular Rule 34 reads:-

"The aim of air-force corrective training is to hold under restriction those airmen who have been awarded air-force sentences of detention and to provide the facilities, instruction and guidance whereby -

(a) those airmen under sentence who are to return to normal air force service after completing their sentence will improve their service efficiency, discipline and morale and will determine to become better airmen.

(b) those airmen under sentence who are to be dismissed from Her Majesty's forces should enhance their potential for self-sufficiency and responsible citizenship."

16. There is a further exposition in a document issued by the Ministry of Defence in December 1997 "Sentencing in the Services Justice Systems: a short guide" (which we call the "Sentencing Guide") at paragraphs 77-84. Paragraph 77 reads as follows:-

"This is often confused or equated with imprisonment because it involves a loss of liberty. It should not be, because it ranks below imprisonment on the scale of punishments. Further the Military Corrective Training Centre, where the majority of such sentences are served, is unlike a prison in many respects and the sentence certainly does not carry the stigma which imprisonment does. It is not available for officers or civilians and when it is imposed upon a non-commissioned officer he is reduced to the ranks. It is important to remember that the Military Corrective Training Centre is not intended for those who have been convicted of serious criminal offences."

17. Paragraph 60 of the Sentencing Guide reads as follows:-

"There are instances where a court-martial will find it easier to avoid a sentence of imprisonment than a judge in a civil court. Where the appropriate penalty is on the border line between imprisonment and Community Service, the Crown Court might take the view that a Community Service Order would not be sufficient to mark the gravity of the offence, and pass a sentence of imprisonment on the ground that the offence is such that the offender ought to be deprived of his liberty. At a court-martial, the next less severe alternative to imprisonment is Service detention coupled with dismissal."

18. Whereas the Sentencing Guide is a generally helpful document, we feel the emphasis of these paragraphs may not be entirely accurate. Although service detention is said to be a lesser sentence than imprisonment, it involves the stigma of reduction to the ranks and can involve up to two years loss of liberty. We agree with what was said by another division of this Court in Ball and Rugg at page 5 of the transcript of the judgment of the Court on 12th February 1998 (and cited with approval by a further division of this Court in Andrews at page 12 of the transcript of the judgment given on 23rd February 1998) namely "It seems to this Court that, however benign service in a military corrective training centre may seem to the outsider, for those who are serving a sentence in such an establishment the central element in the punishment is loss of liberty."

x2. The different consequences of such sentences.

(i) We have already referred to the fact that by sub-section 71(3) of the Acts, dismissal is the automatic result of imprisonment. Dismissal does not however result automatically from a sentence of service detention. This is apparent from the contrast between sub-sections 71(3) and (4), and from rule 34 of the Detention Rules, to which we have referred, and it is expressly set out at paragraph 84 of the Sentencing Guide that:-

"It is almost always the policy of the Army and Royal Air Force to administratively discharge any offender who has not been dismissed by Court-Martial but who has been sentenced to a period of detention which is for one year or more."

It is therefore clear that a sentence of service detention for less than a year does not of itself lead to dismissal but a sentence of service detention of one year or more will, in most cases, lead to dismissal. Dismissal will have serious financial consequences for a person with long years of service.

(ii) There is a particular difference between imprisonment and service detention as to remission. Whereas this would be 50% in relation to a term of imprisonment up to 2 years, in relation to service detention, as appears in Rule 28 of the Detention Rules, and as described in paragraph 82 of the Sentencing Guide, "the maximum period of remission generally available is one-third of the sentence". This was of significance in the case of Ball and Rugg, to which we have referred, where the Court of Appeal adjusted the period of service detention imposed to reflect that difference.

x3. The differing roles of civilian and military Courts.

19. Lord Justice Simon Brown, in giving the judgment of this Court in Love on 11th November 1997, set out the position in a passage which has been cited with approval by other divisions of this Court in Andrews and in McEnhill (in which judgment was given on 11th December 1998: see The Times 4th February 1999). He said at page 8 of the transcript:-

"Court-martial sentences are concerned at one and the same time to achieve two things. First to punish service personnel for the criminality of their conduct; second, to deal with them also on a disciplinary basis. In that they are unique. Members of other professions and occupations who transgress the law of the land are dealt with quite separately, (a) by the civilian criminal courts, followed (b) if appropriate by disciplinary proceedings before their own professional bodies. This would be so, for example, in the case of lawyers, doctors, nurses, architects and police officers. These considerations seem to us to be of some importance when it comes to determining what should be this court's approach to these appeals. Hitherto this court has been concerned exclusively with an Appellant's criminality and whether his sentence is wrong in principle or manifestly excessive. By contrast, statutory appeals from professional disciplinary bodies have gone traditionally to other courts, generally either the Divisional Court or the Privy Council, where a quite different approach is brought to bear upon them............ In the present class of appeal therefore it seems to us that this Court is exercising a somewhat hybrid jurisdiction and that, whilst we are free and clearly intended by Parliament to correct any injustice which we perceive in a court-martial sentence, we must nevertheless be mindful that those imposing and confirming such sentence are, generally speaking, better placed than we are when it comes to assessing the seriousness of offending in the context of service life, and deciding upon what particular penalty is required to maintain the discipline and efficiency of the armed forces."

20. We respectfully agree.
21. So, while respecting the different employment aspects and requirements of military life and service, the Courts-Martial Appeal Court is entitled and bound to look at the total effect of sentences imposed and, in particular, whether there were alternative courses which could and, consistently with the broad principles in the passage which we have cited, should, have been adopted by the sentencing court.

x4. The service context.

22. It follows that it is important for this Court, to seek to understand the needs of the service community before interfering with, or laying down principles in respect of, sentencing by a court-martial. As we have said, the Sentencing Guide is a valuable document. At Section 4.1, between paragraphs 4 and 19, it sets out guidelines for the consideration of civil offences, highlighting offences relating to drugs, theft/deception and dishonesty, violence/bullying and indecency and sexual misconduct in a service context, in passages which are persuasive and illuminating. We refer further to passages in previous judgments of this Court.
23. First, in Love at page 11 of the transcript per Simon Brown LJ:-

"Examples of such instances are ....... given [in the Sentencing Guide] all of which are to our mind eminently sensible and reasonable. A rape is the more serious if the offender takes advantage of his superior rank or position. Drug offences have to be taken very seriously. As is pointed out:-

"The Services are a very close knit community, particularly when abroad, and such community is naturally susceptible to the growth of drug abuse. Drug abuse strikes at the heart of the Services' disciplined codes of conduct and is detrimental to the effectiveness of a fighting force in addition to being especially dangerous in the Service environment."

Dishonesty and theft from fellow service personnel clearly take on a more serious complexion:-

".............. In the Service environment people are accommodated and work very closely together, and, because the opportunity to steal from one's comrade is always readily available, there has to be a mutual feeling of trust. Theft from a colleague in the same barrack room or mess deck .... erodes that trust and is an aggravating feature."

In all these cases and certain other cases too, service personnel must expect to be punished more severely than their civilian counterparts and they should not be surprised to find themselves dismissed from the service."

24. See also in Andrews per Hobhouse LJ (as he then was) at page 15 of the transcript:-

"The service community is not the same as a civilian community, and offences which may be at the margin of criminality in the civilian community may be far more serious when committed by servicemen and personnel in a service environment. They may in themselves be destructive of service discipline and impair the operation of the unit to which the soldier belongs. Barrack room theft is an obvious example of this. Even petty pilferage may create unacceptable strains within the unit and impair its ability to operate properly and effectively. Similarly any breach of discipline creates similar strains .......... Those responsible for military discipline are entitled to take this view about drug offences. The corrosive effect on discipline of drug taking in itself in military units is notorious. "

25. See also McEnhill per Evans LJ at paras 11 and 12, where after citing Love and Andrews with approval, he continued, in relation to a conviction for indecent assault:-

"Service discipline was compromised by the difference in rank between the Appellant and the victim of the indecent assault, as well as by the circumstances in which the assault took place. Moreover, the second offence charged was disobedience to standing orders, in that the female accommodation block was out of bounds to male personnel. In such a case, the breach of discipline was an additional factor which the court must take into account. It could be regarded simply as an aggravating feature which is not present where the defendant is a civilian and the offence is not coloured by the service background. That would make the likely sentence for a civilian the proper starting point and the appropriate sentence for a serviceman would inevitably be more severe. But we prefer to regard this as one of the factors affecting the proper level of sentence in the particular case. Sentencing is not a mechanical or an arithmetical process."

26. It is worth pointing out that, in each of these three cases (and in Ball and Rugg), notwithstanding such cautionary words, this court interfered with the sentence imposed by the court-martial.
27. It seems to us clear that, in a closely-knit and inherently hierarchical organisation such as the armed services, there may be a particular need to mark criminal conduct that is inimical to trust or to discipline with a substantial form of punishment. Further, especially where the offender enjoys senior NCO or officer rank, the question of an exemplary or deterrent sentence may fall for consideration. The issue of whether there is a service context must always be considered by this Court when exercising its jurisdiction. Although, in relation to drugs offences, the supply of drugs may be more serious in a service context, one-off possession may call for similar treatment in a military and civilian context. Violence and sexual offences may call for similar treatment, whether in a military or civilian context, but, in the services the need for deterrence may be more significant if, for example, violence is used by a superior officer, or seniority in rank is abused when committing a sexual offence. Dishonesty may be treated similarly in both contexts, but breaches of trust by officers or senior NCO's may be more serious because of the risk of setting a bad example to lower ranks.

The Approach

28. It seems to us therefore that, although parity and consistency in sentencing are important, there are a variety of reasons why sentences in military and civilian contexts may differ. Some offences in a service context, as in the examples we have given, may be treated more severely, but others may be treated apparently more leniently, because of the availability as an alternative to imprisonment of service detention, with its own objectives and different rules of remission, or because of the serious financial consequences to which we have referred. This inevitable disparity was recognised by the Court of Appeal in Love per Simon Brown LJ at pages 8 and 13 of the transcript, in Andrews per Hobhouse LJ at page 13 at C and in particular and most recently in McEnhill in paragraph 9 at page 4 of the transcript per Evans LJ:-

"The differences [between military and civilian sentencing] - and they are important - are the practical ones (a) that an offence involving indiscipline will in most cases be a serious aggravating feature and (b) that the range of prescribed penalties differs significantly from those in the civilian courts".

See also paragraphs 20-23 at pages 9-10.

29. It appears to this court that a court-martial in sentencing and, in appropriate cases, this court on appeal may helpfully ask itself the following questions:-

1. Is this a case where the offence merits loss of liberty, taking into account (i) the touchstone of what might occur in a civilian court (ii) any issue of service context rendering it the more serious (iii) the length and nature of service and record of the defendant?

2. What are the financial consequences of dismissal?

3. Is imprisonment necessary?

4. Is service detention, if available for the defendant, appropriate, taking into account the nature of the offence, the less serious nature of that punishment compared with imprisonment and, the lower remission available?

5. Is dismissal merited despite (if such be the case) the recommendation of a commanding officer that the defendant should be retained and notwithstanding the financial consequences of such dismissal?

6. If custody is necessary and service detention is available, and there would be severe financial consequences attendant on dismissal, should service detention be imposed, notwithstanding that imprisonment would be imposed in a civilian court?

7. If service detention is appropriate, what should be its duration bearing in mind the different consequences in relation to dismissal of a sentence of a year or more?

Conclusion in relation to these cases

30. In the light of the above, we turn to deal with the appeals before us:-
31. Allam has already served his 18 month sentence of imprisonment. In our view 18 months was longer than appropriate, and a custodial sentence in the region of 6 to 12 months would have been appropriate. However, as we have set out above, imprisonment and automatic dismissal carried with them very substantial financial consequences, which imposed a penalty disproportionate to the offence. We consider that there is no aggravating feature arising from the service context. The sentencing court-martial, in accordance with the approach which we have suggested, should have considered service detention and imposed a term, taking into account the lesser period of remission, of 9 months and that is the sentence we substitute, quashing the sentence of imprisonment. We do not think it appropriate that he should be reduced to the ranks. We quash that order and the order for dismissal from the service.
32. Cooney has served his sentence of 6 months imprisonment which, in itself, would have been appropriate. However, the combination of imprisonment for that period with automatic dismissal and the very substantial financial consequences to which we have referred means that a period of service detention should have been ordered without, given the recommendation of his commanding officer, dismissal from the service. Taking into account the lesser period of remission available, consistent with Ball and Rugg, our view is that a period of 4 months service detention would have been appropriate and we substitute this sentence and we quash the sentence of imprisonment and the order for dismissal. Given the clear service context of the assaults, we conclude that reduction to the ranks was appropriate and we do not disturb that order. So far as the order under the Sex Offenders Act is concerned, although we have heard no argument on this, the consequence of quashing the sentence of imprisonment appears to be that the period for registration under that Act will be 5 years rather than 7.
33. Wood It may be that there was a misunderstanding on the part of the court-martial and the appellant's solicitor as to whether there was any chance of his recovering the redundancy payment. It is unfortunate that the clear picture given to this court, namely that there was no question of Wood being eligible to receive the redundancy payment, was not given to the courts-martial. The loss of redundancy entitlement, albeit that there were credits to be set off, was a substantial penalty in itself. We propose to quash the sentence of dismissal, but, in the light of the service context of the offence, consider that reduction to the ranks was appropriate. By virtue of the quashing of the dismissal, he will now be entitled to receive back pay, albeit at the reduced rate resulting from his reduction to the ranks. The consequence is that he will receive an adventitious gain in respect of such back pay. Taking this into account, we propose to increase the fine from £1000 to £2500. We therefore quash the sentence of dismissal, leave unaffected his reduction to the ranks and substitute a fine of £2500 for that of £1000.
34. To the extent indicated each of these appeals is allowed.