A New Zealand soldier guilty of attempted espionage who feared retaliation if he was named has lost a bid to keep his identity secret.

Jack Alexander Captein was dismissed from service and sentenced to two years in a military detention facility in August last year, after he tried to defect and gave restricted military information to someone he thought was a foreign agent.

The Crown didn’t think the sentence was long enough and appealed the outcome of the first case of its kind in New Zealand history.

Captein, who hasn’t been named until now, feared having his name published would place him and his family at risk of retaliation from the foreign power he thought he was assisting, he said in court documents.

In May this year, the Court of Appeal allowed the Crown’s appeal against the sentence but dismissed Captein’s name suppression appeal.

He then sought leave to bring what Justice Christine French said would be a second appeal against the refusal to grant name suppression, which was declined in a decision released this week.

She said the Appeal Court considered it “not seriously arguable” in the circumstances that the public interest in open justice was outweighed by the interests in favour of non-publication.

Captein, who had links to two right-wing groups, admitted handing over bundles of New Zealand Defence Force (NZDF) documents to an undercover officer.

The offending came to light after an undercover operation in December 2019 during which Captein met several times with an undercover officer posing as an agent of a foreign country.

He provided the officer with documentation and materials likely to prejudice New Zealand’s security or defence.

Captein had also accessed a New Zealand Defence Force computer system and obtained maps, imagery and telephone directories with the intention of handing them to the undercover officer but was arrested before that happened.

A search of his address located an external hard drive containing a video of the Christchurch mosque attacks livestream and a copy of the gunman’s manifesto, both being objectionable publications.

Some of the information he had found belonged to another soldier, while the bulk of it he had taken from the NZDF’s internal computer system, and it included restricted information.

Captein also offered to get a covert device into New Zealand Army headquarters.

The former New Zealand Army private earlier pleaded guilty in the Court Martial of New Zealand (CMNZ) to one representative charge of attempted espionage, a charge of accessing a computer system for a dishonest purpose, and one representative charge of knowingly possessing an objectionable publication.

At sentencing, he was denied permanent name suppression.

Captein appealed the decision at the same time the Crown appealed the sentence imposed by the CMNZ.

In allowing the Crown’s appeal against the sentence, the Appeal Court found that a sentence of two years’ military detention did not adequately reflect the seriousness of the offending and was an insufficient deterrent, Justice French said in the Court of Appeal judgment.

“It was reinforced in that view by reference to cases from other jurisdictions which highlighted the primacy of general deterrence in sentencing for espionage and related offending,” Justice French said.

The Appeal Court considered the appropriate starting point was at least four years and three months’ imprisonment.

It also considered the discounts awarded by the CMNZ were “generous” but they were not reduced.

After applying these discounts to the starting point and giving Captein a further credit for the eight months already spent in military detention, the Appeal Court arrived at an end sentence of 15 months’ imprisonment.

However, that was subject to a Crown recall after an error was found in the commencement date of the sentence because of a technicality in Court Martial Appeals law.

The Crown confirmed it would apply to the Appeal Court to recall and reissue its judgment to clarify the sentencing commencement date.

In dismissing his appeal for name suppression, the court held that the consequences of publication did not amount to extreme hardship and the public interest in publication outweighed the interests in non-publication.

Captein then sought leave to bring what Justice French said was a second appeal but the threshold for granting leave was high.

Captein argued he would “unjustly face public scrutiny” if named, without the ability to respond with classified details of the covert operation targeting him.

He also said he and his family would be at risk of retaliation from the foreign power he thought he was assisting and he would be at risk in a civilian prison from some prisoners, namely those who opposed his “white supremacist views” and prisoners who supported those views and may seek to radicalise him.

He was also at risk from prisoners who may try to obtain details of the offending, Captein said.

Justice French said the court was “not persuaded” that any grounds of the proposed appeal raised issues of general principle that would justify a second appeal.

“Further, we consider the merits of the proposed name suppression appeal to be weak,” she said.

There appeared to be no evidence that the alleged risk to Captein or his family’s safety existed, and what evidence there was pointed to the contrary, the judge said.

The court felt any risks from fellow prisoners could be adequately mitigated by the range of protective measures commonly used by the Department of Corrections.