Police are appealing a decision to allow a former military spy who stole sensitive operational equipment to walk away without conviction.
Airforce Corporal Richard Graham was discharged without conviction in July after stealing from the Defence Force, including equipment requiring high security clearance, and for offering to supply methamphetamine.
Police have appealed that District Court decision, by Judge Belinda Pidwell, arguing she made errors in law in assessing the seriousness of his offending.
Corporal Graham's lawyer, Karl Trotter, told the High Court in Auckland his client had been acting as a "secret agent" in a highly stressful situation overseas.
While overseas he said Graham started using drugs which he found "helpful" and "highly effective" for his job and was likely sparked by stress.
"When he came back into the military it's important to understand because of the separation his local command structure knew nothing of his activities."
It is not known what was stolen from the military other than what was described as "sensitive operational equipment".
When asked by RNZ what that meant, Mr Trotter said he could not say and Crown lawyer Scott McColgan said the Defence Force had not given him any more detail.
He also took tools from contractors working at the Whenuapai Airforce base.
Mr Trotter said the Crown was submitting that the offending could not fit within a discharge without conviction and normally he would agree.
However he said this was a rare case.
"This is far from ordinary, it is quite exceptional."
He argued Mr Graham had gone to extraordinary lengths to recover the stolen items and to go through rehabilitation, and the police had failed to prove an error of law.
"There's nothing that says anywhere in the law that one can't get a discharge for this offending."
He said his client wanted to continue his career in the military and a conviction would likely automatically lead to dishonorable discharge but noted the Defence Force could do so regardless.
Thefts should have been treated more seriously - Crown
Mr McColgan argued that because of the high value and high security clearance needed for the burglaries it was too serious to "fit within the scope of discharge without conviction".
"It should have been treated as more serious and the mitigating factors should have only taken it to serious offending.
"This is theft as a servant on steroids."
Justice Hinton said she had to be satisfied that Judge Pidwell was wrong.
"I fully understand the seriousness of offending but the court has to be able to recognise what can be quite extraordinary features that mitigate against that."
Mr McColgan said that while the military was well aware of the proceedings, others would not be.
"A lack of these criminal convictions would potentially allow him to apply for sensitive jobs outside of the Defence Force without the employer knowing about this offending.
"It's the fact that actually to a large extent Corporal Graham walks away from the court without even convictions to mark the offending."
Justice Hinton has reserved her decision.
