A soldier with links to far-right groups who thought he was spying on New Zealand has been sentenced to two years in military detention and dismissed from the army.
At a court martial hearing at Linton Military Camp, near Palmerston North, the soldier, whose name is temporarily suppressed, this week admitted charges of attempted espionage, dishonestly accessing a computer system and possessing objectionable material.
After Judge Kevin Riordan and a military panel of three senior officers began their sentencing deliberations at 1pm on Tuesday, the judge began delivering his lengthy sentencing remarks 24 hours later.
Judge Riordan said the sentence aimed to deter others from acting in a similar way.
“The court considers your actions are demanding of strong denunciation,” he said.
“You obtained the property of the Defence Force with the intent of handing the material on to someone you thought was an agent of a foreign power.”
Putting New Zealand’s security and military at risk was serious, the judge said.
“There is no such thing as a non-serious act of espionage. There is no trivial act of espionage.”
This was the first military prosecution for espionage or attempted espionage.
Soldier says scrutiny drove him to defect
The court martial has heard claims from the soldier that in 2019, from when the charges date, he was under such intense scrutiny by the state that he contacted a foreign country to defect. He was 27 at the time.
From there, he was caught in a sting that resulted in him thinking he was handing over information to that country, whose name is suppressed, when he was actually dealing with an undercover New Zealand agent snaring him in their trap.
The soldier came to the attention of authorities due to his desire to defect, and because of his involvement in nationalist groups Action Zealandia and the Dominion Movement.
In a statement read to the court this week, the soldier said he now regretted his involvement in the groups, although he said they were groups of like-minded friends who kept each other company.
Such groups were under the microscope after the Christchurch mosque attacks in March 2019, and the soldier was questioned by police.
He said he felt unfairly targeted by the state.
Judge Riordan said authorities were right to show interest in the soldier and his friends.
The soldier had said the right-wing groups were edgy and provocative, and they did provoke a reaction.
However, the court recognised how the soldier claimed he felt, the judge said.
The soldier was contacted by an undercover agent he thought represented the foreign country in November 2019.
After some back and forward, the soldier handed over, or attempted to hand over, sensitive material such as maps of defence bases, his password to the Defence Force integrated exchange system and his ID card to the person he thought was a foreign agent.
Soldier’s actions naive
Judge Riordan said the offending happened only for a short period of time and that the undercover agent could have ended it.
However, the soldier had several interactions with the agent and could have also halted the activity, but didn’t.
“Each one presented you with an opportunity to say: ‘Stop. What am I doing? This is wrong. This is a breach of my oath of allegiance’.”
The material the soldier handed over or attempted to hand over was classified at a restricted level or not classified at all, but harm could still be done, the judge said.
“There are, in fact, many uses a foreign power could make of things like phone books. If those phone books had been handed across it’s quite possible the information in them could easily be exploited and exploited for years to come.”
The judge said if information had been supplied to a foreign agent the soldier would have become vulnerable, possibly for the rest of his life, to blackmail.
The court recognised, however, no actual harm was caused and that the soldier wasn’t undertaking a sophisticated attempt at espionage.
“The court wonders how you could be so naive.”
The most serious of the soldier’s actions was the attempt to provide passwords to enter the Defence Force communications system, his identity card, and access codes to Linton Military Camp, Ōhakea air base and facilities in there and phone books.
“The names and the details in those books belong to real people. Your comrades. We cannot imagine that any of them would be at all pleased to find that these details are now in the hands of a foreign power,” Judge Riordon said.
When the soldier’s home was searched he was found in possession of a video of the Christchurch mosque attack and a copy of the attacker’s manifesto.
The soldier said he kept them out of a sense of rebellion, because the government had ruled the video and manifesto illegal.
As a member of the military, this did not paint his conduct in a good light, the judge said.
Judge Riordan said sentencing calculations for the soldier began at about three and a half years’ prison before deductions, including for the delay in the case reaching trial, during which time the “sword of Damocles” was suspended above his head.
The first charges were laid in November 2020.
The soldier spent a few days in custody but has since been on open arrest, which has mostly meant he’s had to regularly report to the military while suspended on full pay.
Judge Riordan said despite that, the soldier’s life was on hold. At times he was unable to use the internet or smart phones, which was a hefty restriction.
Soldier claims he loves NZ despite actions
When assessing if the soldier was remorseful, the judge said the soldier’s statement needed close scrutiny.
“We thought it was a step in the right direction, but there is still a flavour in it that you are sorry that you carried out your activities because of all the trouble that it has brought to you, rather than you being sorry for the trouble that it has caused everybody else.”
A large portion of the statement talked about the soldier’s involvement in right-wing groups. Only in the 35th paragraph did he get to the heart of the matter, saying he was sorry his actions could have put his comrades at risk.
“You tell the court you love your country, but a person who loves their country does not provide material to its detriment to a foreign country. I think we can say you loved a version of the country that was in your mind.”
Judge Riordan said the court had reservations the soldier fully understood the consequences of what he did.
He said he and the military panel spent much time deciding whether military detention or civilian prison was appropriate for the soldier.
The issue of the soldier’s name suppression is yet to be finally decided.