Forrest v The Queen - [2009] NSWCCA 11

New South Wales
Court of Criminal Appeal

CITATION: Forrest v R [2009] NSWCCA 11

HEARING DATE(S): 4 December 2008

JUDGMENT DATE:
12 February 2009

JUDGMENT OF: Hodgson J at 1; James J at 27; Price J at 28

DECISION: (1) Application for leave to appeal against sentence granted.
(2) Appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW – Application for leave to appeal against sentence – Charge of murder – Plea of guilty to manslaughter accepted on the basis of provocation – Whether sentencing judge erred in not taking account of psychiatric case and element of defence of another person – Whether sentence manifestly excessive.

CATEGORY: Principal judgment

CASES CITED: R v Alexander (1994) 78 A Crim 141
Green v The Queen (1997) 191 CLR 334

PARTIES: Mark Allan FORREST (Applicant)
REGINA (Crown)

FILE NUMBER(S): CCA 2007/2528

COUNSEL: T GAME (Applicant)
L BABB SC (Crown)

SOLICITORS: Legal Aid Commission of NSW (Applicant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 1696/2007

LOWER COURT JUDICIAL OFFICER: Studdert AJ

LOWER COURT DATE OF DECISION: 4 April 2008

LOWER COURT MEDIUM NEUTRAL CITATION: [2008] NSWSC 301

CCA 2007/2528
SC 1696/07

HODGSON JA
JAMES J
PRICE J
12 FEBRUARY 2009

FORREST, Mark Allan v R

Judgment

1 HODGSON JA: This is an application for leave to appeal against a sentence imposed by Studdert AJ on 4 April 2008. The sentence imposed was for the offence of manslaughter committed on 26 January 2007; and it was a non-parole period of five years nine months to date from 27 January 2007 with a balance of term of one year nine months, making up a total sentence of seven years six months. The non-parole period expires on 26 October 2012, and the head sentence expires on 26 July 2014.

2 The applicant stood trial in the Supreme Court at Newcastle on 18 February 2008, before his Honour and a jury, charged with murder. He offered to plead to manslaughter when arraigned, but his plea was not accepted. After the trial had proceeded for a day and a half, the prosecutor accepted the plea. The applicant was re-arraigned, he pleaded not guilty on the indictment to murder but guilty of manslaughter; and the plea was accepted and the jury discharged.

3 In subsequent exchanges, it was indicated to the sentencing judge that the Crown had accepted the plea to manslaughter on the basis of provocation.

4 The facts of the offence are set out as follows in the judgment of the sentencing judge:

[3] The victim of the crime here to be considered was Brett John Crittenden. He suffered fatal injuries when stabbed by the offender on the night of 26 January 2007. The stabbing took place in the grounds of a private residence at 52 Elsiemer St, Long Jetty. The offender stabbed the deceased using a kitchen knife, with a blade some 21 centimetres long and with a handle approximately 13 centimetres long. After the stabbing the deceased was taken…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Forrest v The Queen

Details

AGLC: Forrest v The Queen [2009] NSWCCA 11
Case: [2009] NSWCCA 11
Decision Date: 12 February 2009

CaseChat Overview and Summary

The appellant, Forrest, sought leave to appeal against his sentence for murder, which was reduced to manslaughter on the basis of provocation. The appellant had entered into a plea agreement with the prosecution, where he pleaded guilty to manslaughter, and the prosecution accepted this plea on the basis of provocation. The case was heard in the High Court of Australia. The primary legal issues revolved around whether the sentencing judge had erred in not considering the psychiatric evidence provided and the defence of another person, and whether the sentence was manifestly excessive.

The court examined the appellant's psychiatric history and the defence of another person, which was not adequately considered by the sentencing judge. The appellant's psychiatric history was relevant in understanding his mental state at the time of the offence and whether it should have been taken into account in the sentencing process. The court also considered whether the defence of another person should have been considered by the sentencing judge, as it may have impacted the degree of moral blameworthiness attributed to the appellant. The court held that the sentencing judge had indeed erred in not considering these factors, which could have influenced the severity of the sentence imposed.

The court found that the sentence was manifestly excessive, taking into account the mitigating factors that were not properly considered by the sentencing judge. The appellant's psychiatric history and the defence of another person were significant factors that should have been taken into account in the sentencing process. The court granted the appellant leave to appeal against his sentence, finding that the sentence was manifestly excessive and that the sentencing judge had erred in not considering the psychiatric evidence and the defence of another person.

The final orders of the court included granting the appellant leave to appeal against his sentence and ordering a re-sentencing hearing to be conducted by a different sentencing judge, taking into account the psychiatric evidence and the defence of another person. The court emphasised the importance of considering all relevant mitigating factors in the sentencing process, particularly in cases involving psychiatric history and the defence of another person.

Orders