A former military spy who stole sensitive operational equipment has been convicted on burglary and drugs charges.
The High Court in Auckland Photo: justice.govt.nz
Airforce Corporal Richard Graham had initially walked free from court after admitting six charges including burglary and offering to supply methamphetamine.
The Crown appealed Graham's discharge without conviction at the High Court in Auckland.
The court heard how he stole sensitive operational equipment from the Airforce base and tools belonging to contractors with a combined value of $200,000.
Justice Hinton found the District Court judge had erred in law when she determined the consequences of Graham's offending outweighed the seriousness of the crimes.
The court heard how the Airforce officer spent three years in a sensitive specialist inteligence role, which carried a high-level of risk and included being deployed overseas.
He had security clearance and was able to enter a store room containing what is described as "operationally sensitive equipment".
He also stole tools from a construction site on the Whenuapai airbase.
All up, the stolen items have a price tag of $200,000.
During an investigation, police searched Graham's home where they found 10 BZP pills. In a storage unit they found 391g of NBOME - a psychoactive product that mimics LSD. Police also found two cellphones that had made about 700 calls over a three or four month period.
Graham pleaded guilty in the Waitākere District Court, where Judge Belinda Pidwell granted him a discharge without conviction.
That meant Graham walked free from court, without convictions for his charges that included burglary, offering to supply methamphetamine and possessing drugs.
Effects of war
Judge Pidwell found Graham had planned what to steal and there was a significant breach of trust.
But there was no evidence he had made a commercial gain and the judge concluded there were "exceptional and significant circumstances". She cited Graham's stress from the overseas deployment, a character reference from a senior officer, and rehabilitative efforts.
She also concluded that if Graham was convicted he would likely face a dishonourable discharge from the military and that would have serious consequences of his ability to get a job in the future.
"You have engaged in specific training and had an individual specific experience, sent on behalf of this country to a hostile environment, deployed for a specific purpose and have come back having to work your way through what happened, what you did and what your role was. I do not think anyone can underestimate the effects of war on an individual."
But the Crown appealed the case to the High Court in Auckland.
Crown prosecutor Scott McColgan described the case as "theft as a servant on steroids".
He argued the district court judge had erred in law by failing to determine the seriousness of the offending and the consequences.
Justice Hinton agreed.
She acknowledged Graham was now drug-free.
The High Court judge also noted the negative effect of Graham's deployment overseas. She said the court had an affidavit from a senior officer who said three of Graham's colleagues had approached the officer over difficulties with assimilating back into normal life. The officer also noted behavioural changes in five others.
But she said the offending should not be kept secret from future employers.
Justice Hinton said regardless of whether or not Graham was convicted, the Airforce was aware of the offending and would take that into account when deciding his future.
She also found Graham had already been given an apprenticeship with a building company.
Justice Hinton noted that no other remotely similar case had resulted in a discharge without conviction.
She sent the case back to the District Court for Graham to be re-sentenced.
Justice Hinton ended her judgement by acknowledging it was a highly unusual case. She said she accepted Judge Pidwell's comments about the difficulties of being sent by the armed forces overseas to a hostile environment and not receiving appropriate treatment on his return.
She also said she was impressed by the way Graham had responded to the charges and hoped he was an example to others.
Graham's lawyer, Karl Trotter, said he applied to the Court of Appeal to take the case further. He has yet to hear back from the senior court and would not comment further.