Navy recruits’ obscene images

Group of five avoided a court martial as it wasn’t deemed to be in the public interest, writes David Fisher

Agroup of Navy recruits caught sharing “extreme” sexual and violent imagery involving animals and children avoided a court martial because it was considered there was no “public interest” in a prosecution.

Yet an agency fighting the sexual exploitation of children says being found with such images could have led to up to 14 years in prison in the civilian system of justice.

“This makes me question the efficacy of the military justice system in dealing with such offences and appropriately addressing it in a way that respects the level of harm caused to the victims featured in this online content,” said Synteche Collins, acting director of Ecpat NZ.

In this case, one of the five left the Navy so received no punishment.

Of the remaining four, the decision to not carry out a court martial saw them dealt with through the military’s “summary trial” system.

A summary trial is the most basic stage of military justice in which hearings are overseen by officers, lawyers are not allowed in the room, and the defence and prosecution are run by other military staff.

Two people had their sentences deferred for 12 months while two others received “cautions”. The fifth quit the Navy.

An NZDF spokesperson told the Herald on Sunday: “The offending, while serious, consisted of a small number of images and was driven by immaturity rather than of sinister nature.

“The offending was done by trainees who were new to Defence at the time.”

The case was revealed to the Herald through the Official Information Act with documents setting out the extreme and graphic nature of the content being shared between the group using Facebook’s Messenger service.

The unlawful content was discovered by the US National Centre for Missing and Exploited Children and referred to the Department of Internal Affairs, one of three agencies in New Zealand that enforce laws around online sexual exploitation of children.

DIA then referred the case to NZDF, along with details of which sailors had been identified by the US agency.

In the November 2018 raid that followed, phones belonging to the five people were seized by military police who found “disturbing publications”.

NZDF then sought advice from the Office of Film and Literature Classification, which gave a formal opinion in July 2019 that the content was “objectionable” and illegal to possess and share.

The recruits were interviewed in late 2019 with one telling military police the Messenger group was originally about staying in contact but “changed and became a sharing platform of who had seen the worst things on Facebook”.

Charge sheets were drawn up with consequences for sharing the imagery beginning in March 2020 with a 12-month deferred punishment handed down to one recruit.

In December 2020, the commander of the Devonport naval base deferred further action on the case in a memo to the director of military prosecutions.

He did so citing a section of the law where a commander sends a case to the more serious stage of a court martial when they believe they had “insufficient powers of punishment”.

That came after one or more of the recruits pleaded guilty to some of the charges.

A separate OIA document said: “The [director] considered that the [commanding officer] had sufficient powers of punishment and it was not in the public interest to lay charges in the Court Martial. The charges were referred back to the CO.”

The four remaining recruits were ordered to face summary trial, the first of which took place in February 2021 and resulted in a deferred sentence.

One recruit quit the Navy in March 2021 and fell outside military justice.

The remaining two faced summary trial in April 2022 and were punished by being issued “cautions”.

Their punishment was the following words: “I hereby caution you that any behaviour of this nature is not regarded as desirable in the NZDF. I encourage you to therefore stop, check and think in the future when you are caught up in behaviour that is not desirable so that you can progress.”

Labour’s defence spokesman Peeni Henare said he was briefed on the case while he was Minister of Defence on a “no surprises” basis which provided an overview of what occurred but without operational detail on how it was being handled.

He said the end result — with a recruit departing — raised questions about how that person faced consequences for their actions.

A spokesperson for NZDF said it “took this offending very seriously” when it occurred and it was “appropriately investigated” and managed “independent of the chain of command” and in line with civilian prosecution guidelines.

The level of punishment through a summary trial was assessed against a likely court martial sentence and was central to taking that prosecution route, they said.

“The decision to refer the charges to Summary Trial should not be confused for not taking the matter seriously, or choosing a prosecution route that ‘hides’ it from the public. That is not the case.

“A Summary Trial is a military tribunal that can dispose of charges serious enough to warrant up to 28 days’ detention.”