A court heard that Corporal Richard Graham was a "secret agent" in the New Zealand Defence Force. Photo / Supplied
A court heard that Corporal Richard Graham was a "secret agent" in the New Zealand Defence Force. Photo / Supplied
An Air Force intelligence operative who was convicted of stealing sensitive material from the Defence Force will take his case to the Court of Appeal.
Corporal Richard Graham was convicted by the High Court on charges of burglary, offering to supply drugs, possession of a psychoactive product and possession of a controlled drug after police appealed a district court judge's decision to discharge him without conviction.
Now, Graham hopes to overturn the High Court's decision.
His lawyer, Karl Trotter, confirmed to the Herald that he had filed an application for leave to appeal to New Zealand's second highest court.
Justice Anne Hinton had overturned Judge Belinda Pidwell's decision and convicted Graham in her December 22 judgment, released to the Herald yesterday, but also expressed sympathy for the war veteran after he endured a traumatic deployment.
Graham's offending happened in September 2016, when the enlisted man was living and working at the Whenuapai Air Force base.
However, until February 2015 he had spent three years as an active Defence Force (NZDF) operative in a sensitive specialist intelligence role overseas, court documents read.
Graham's unit and the nature and location of his deployment remains suppressed, but the mission has been described in court documents as a hostile operation involving at least 13 people.
At the appeal hearing last October, Trotter told the High Court at Auckland that Graham began using drugs during his deployment because "they were highly effective in his role".
After Graham returned to New Zealand he continued to take drugs, which led to his offending when he used his security clearance to access two buildings at the military base three times.
He stole several items, including electronics containing operationally sensitive equipment.
Police searched Graham's home and a storage unit and also found drugs, and two seized cellphones showing "a large number of communications relating to the supply or trading of methamphetamine".
Graham pleaded guilty to all the charges and was sentenced by Judge Pidwell in the Waitakere District Court.
The judge said the offending was a significant breach of trust against the Air Force, particularly because he had used his security clearance at a significant level to commit the crimes.
However, she said it was "a highly unusual case" and discharged Graham because of several mitigating circumstances, such his willingness to help police recover the sensitive material.
Judge Pidwell also said the gravity of the offending was significantly reduced because of the high stress of Graham's deployment, a character reference from a senior military officer, and Graham's rehab efforts.
She added that Graham would likely be dishonourably discharged from the NZDF.
Graham's offending occurred while he was living and working at the Whenuapai Air Force base. Photo / Supplied
At the High Court appeal hearing, the court was told that Graham was a "secret agent" in the NZDF who had a "highly stressful posting overseas".
Trotter said Graham was "trained in ways to be deceptive" and when he returned home his local command structure knew nothing of his overseas operations.
However, Justice Hinton agreed with the police's counsel Scott McColgan, who argued that Judge Pidwell erred in law when assessing the gravity of Graham's offending.
But Justice Hinton did express her sympathy for Graham and said that the "very negative effect" from his hostile deployment overseas did mitigate the offending.
"I acknowledge that this is a highly unusual case. I am sympathetic to Mr Graham's situation. I accept Judge's Pidwell's comments about the difficulties of being sent by the [NZDF] to a hostile environment and receiving no proper treatment on return," she said.
Justice Hinton also referred to an affidavit from one of Graham's commanding officers, whose identity is suppressed, which said of the 13 troops deployed with Graham, three had difficulties assimilating back into normal Kiwi life, and significant behavioural changes had been noted in five others.
Graham is now drug-free and has done a building apprenticeship as he attempts to return to civilian life, his affidavit reads.
