Opinion Number. 304

Subject

COURTS-MARTIAL WHETHER EMPOWERED TO SENTENCE SOLDIER TO DISMISSAL OR DISCHARGE FROM DEFENCE FORCE

Key Legislation

DEFENCE ACTS 1903-1904, ss. 97, 124

Date
Client
The Secretary, Department of Defence

The following memorandum has been referred to me for advice:

I am directed to ask your advice upon the following point with reference to the interpretation of sections 4 ('member'), 97 (a) and 124 (g) of the Defence Act and paragraphs 237 (b) and 474 (d) of the Commonwealth Military Regulations.

The question is whether, in the case of a soldier, a sentence of 'dismissal or discharge from the Defence Force' may be imposed by a court-martial for desertion in view of the fact that the Regulations apparently restrict such sentence to 'Discharge with ignominy from the Defence Force'.

Section 97 of the Defence Acts 1903-1904 expressly empowers a court-martial to sentence any member of the Defence Force found guilty of any naval or military offence to the punishment provided for the offence and in addition to dismiss or discharge him from the Defence Force.

Regulation 237 provides that punishments may be inflicted in respect of offences committed by persons subject to military law and convicted by court-martial or civil courts according to the scale set out which in the case of soldiers includes, amongst other punishments, dismissal with ignominy from the Defence Force.

The offence of desertion is a military offence and is amongst the offences to which regulation 237 applies.

Regulation 237 cannot restrict the powers of a court-martial under section 97 of the Act and a court-martial can exercise those powers in any case that comes within the section. But as the section only empowers a court-martial to sentence to dismissal or discharge in addition to some other punishment it follows that unless the court sees fit to inflict some punishment such as imprisonment or payment of a penalty, the section does not apply.

I am of opinion therefore that, in the case of a soldier, a sentence of dismissal or discharge from the Defence Force may not be imposed under section 97 of the Act by a court-martial for desertion unless imposed in addition to some other punishment.

[Vol. 6, p. 316]