Z v Chief of Navy [2008] ADFDAT 1

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Z v Chief of Navy [2008] ADFDAT 1

DEFENCE – appeal against sentence – whether manifestly excessive – misuse of Commonwealth credit card – connection with illegal drug use – full restitution made – exceptional mitigating factors Held: appeal allowed – mitigating factors sufficient to overcome seriousness of offences Crimes Act 1914 (Cth) s 16A, 17A Defence Force Discipline Act 1982 (Cth) s 70 Financial Management and Accountability Act 1997 (Cth) s 60(1) Elliott v Harris (No 2) (1976) 13 SASR 516 followed House v The King (1936) 55 CLR 499 applied Malvaso v The Queen (1989) 168 CLR 227 cited Markarian v The Queen (2005) 228 CLR 357 followed R v Boushard (1996) 84 A Crim R 499 cited Wood v Samuels (1974) 8 SASR 465 followed Z v CHIEF OF NAVY DFDAT 2 of 2008

HEEREY j (president), MILDREN & DUGGAN JJ (MEMBERS)

5 March 2008

MELBOURNE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 2 OF 2008

ON APPEAL FROM THE AUSTRALIAN MILITARY COURT BETWEEN: Z

APPELLANT

AND: CHIEF OF NAVY

RESPONDENT

TRIBUNAL: HEEREY j (president), MILDREN & DUGGAN JJ (MEMBERS)

DATE OF ORDER: 5 march 2008

WHERE MADE: MELBOURNE

THE TRIBUNAL ORDERS THAT:

1. The appeal is allowed. 2. The sentence is varied by directing that the appellant be released forthwith upon the same recognisance as he has already entered into. 3. The time already spent in custody be treated as time served. 4. Otherwise the penalties are affirmed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

ON APPEAL FROM THE AUSTRALIAN MILITARY COURT BETWEEN: Z

APPELLANT

AND: CHIEF OF NAVY

RRESPONDENT

TRIBUNAL: HEEREY j (president), MILDREN & DUGGAN JJ