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R v Forrest

R v Forrest

Case [2016] ACTSC 321 28 November 2016

Jurisdiction

Restorative Justice

Referral for Restorative Justice

Explanation of Restorative Justice

Accepting Responsibility

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Forrest
Citation:	[2016] ACTSC 321
Hearing Date:	29 September 2016
DecisionDate: Reasons Date:	29 September 2016 28 November 2016
Before:	Refshauge ACJ
Decision:	Michael Paul Forrest be referred to restorative justice
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Restorative justice – explanation of restorative justice – referral for restorative justice – consideration – reasons for referring offender to restorative justice STATUTE – INTERPRETATION – Crimes (Restorative Justice) Act 2004 (ACT) – ‘relates to’ – ‘relates to money and property’ – ‘eligible victim’ – ‘capable’ – division of offences into serious and less serious offences – ‘eligible offender’– suitability – referring entity – explanation of restorative justice to eligible offender – ‘accepting responsibility’ – relevant consideration for sentencing
Legislation Cited:	Crimes Act 1900 (ACT), Pt 3 Crimes (Restorative Justice) Act 2004 (ACT), ss 8, 12, 17, 19, 20(2), 22, 24, 25, 27, 28, 30, Pt 4, Pt 7 Crimes (Sentencing) Act 2005 (ACT), s 33, 33(1)(w), Pt 4.3 Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT) Criminal Code 2002 (ACT), s 308, 310, 311, 312, 313, 318(1), 403 Domestic Violence and Protection Orders Act 2008 (ACT), ss 13(2), 90, Sch 1 Legislation Act 2001 (ACT), s 42 Victims of Crime Act 1994 (ACT), s 6 Explanatory Statement, Crimes (Restorative Justice) Bill 2004 (ACT)
Cases Cited:	Cameron v The Queen [2002] HCA 6; 209 CLR 339 Della-Vedova v The Queen [2009] NSWCCA 107 Fares v Longmore (1998) 148 FLR 255 Fusimalohi v The Queen [2012] ACTCA 49 Hogan v Hinch (2011) 243 CLR 506 Johnson v The Queen [2016] NZCA 144 Joye v Beach Petroleum NL (1996) 67 FCR 275 R v Ardler [2004] ACTCA 4; 144 A Crim R 552 R v Goodwin [2009] ACTSC 111; 233 FLR 473 R v McCurley [2016] ACTSC 219
Texts Cited:	Michael King et al, Non-Adversarial Justice (Federation Press, 2^nd ed, 2014) Don Weatherbourn and Megan Macadam, ‘A Review of Restorative Justice Responses to Offending’ (2013) 1 Evidence Base
Parties:	The Queen (Crown) Michael Paul Forrest (Accused)
Representation:	Counsel Mr M Fernandez (Crown) Mr J De Bruin (Accused)
Solicitors ACT Director of Public Prosecution (Crown) Legal Aid ACT (Accused)
File Number:	SCC 128 of 2016

REFSHAUGE ACJ:

On 5 August 2016, the accused, Michael Paul Forrest, was arraigned on an indictment containing 37 counts, being 12 counts of theft, 11 counts of causing damage to property belonging to someone else, eight counts of burglary, one count of aggravated burglary, two counts of dishonestly receiving stolen property, two counts of dishonestly taking and using a motor vehicle without the owner’s consent, and one count of aggravated robbery.

The matter has been listed for sentence on 15 February 2017.

Mr Forrest requested that the offences to which he has pleaded guilty be referred for restorative justice.

Restorative justice

In 2004, the ACT Legislative Assembly enacted the Crimes (Restorative Justice) Act 2004 (ACT) establishing a regime for the referral…

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 R v Forrest

Details

AGLC: R v Forrest [2016] ACTSC 321
Case: [2016] ACTSC 321
Decision Date: 28 November 2016

CaseChat Overview and Summary

The matter in question involved a defendant, Michael Paul Forrest, who was before the court on criminal charges. The nature of the dispute centred on the appropriate sentencing approach, specifically whether the defendant should be referred to restorative justice as a part of his sentence. The case was heard in the Magistrates Court of the Australian Capital Territory. The court had to determine whether the referral to restorative justice was appropriate under the provisions of the Crimes (Restorative Justice) Act 2004 (ACT).

The legal issues before the court involved interpreting and applying the provisions of the Crimes (Restorative Justice) Act 2004 (ACT). The court needed to assess if the offence committed by Forrest "related to money and property" and whether Forrest was an "eligible offender" who could be referred to restorative justice. Additionally, the court had to consider the suitability of Forrest for restorative justice, including whether he was "capable" of accepting responsibility for his actions. The court also needed to ensure that the referring entity had adequately explained the concept of restorative justice to Forrest.

In determining the appropriate sentence, the court found that the offence did indeed relate to money and property, making Forrest eligible for referral to restorative justice. The court considered that Forrest was capable of accepting responsibility, which was a relevant factor for sentencing. The court also found that referring Forrest to restorative justice would be in the interests of justice, given the nature of the offence and Forrest's potential to benefit from the process. The court concluded that the referral was appropriate and ordered that Michael Paul Forrest be referred to restorative justice as part of his sentence.

Orders

Orders of the court

Michael Paul Forrest be referred to restorative justice

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Forrest [2016] ACTSC 321

Most Recent Citation

R v Forrest (No 2) [2017] ACTSC 83

Cases citing this decision · 14 of 14 shown

Director of Public Prosecutions v McKay
[2025] ACTSC 42

…Ngata v The Queen [2020] ACTCA 18 R v Ali (No 4) [202] ACTSC 350 R v Aroub [2017] ACTSC 187 R v Forrest (No 2) [2017] ACTSC 83 R v Forrest [2016] ACTSC 321; 11 ACTLR 311 R v Goboly [2016] ACTSC 322 R v Kilic [2016] HCA 48; 259 CLR 256 R v Kindl [2015] ACTSC 128 R v Lindsay [2020] ACTCA 25 R v Miller [2019] ACTCA 2…
Director of Public Prosecutions v Dunn
[2025] ACTSC 8

…my v The Queen [2013] HCA 37; 249 CLR 571 DPP v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP v Ledbrook-Miller [2024] ACTSC 254 R v Forrest [2016] ACTSC 321; 11 ACTLR 311 R v Hancock [2021] ACTSC 52 R v KN [2018] ACTSC 111 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Verdins [2007] VSCA 102; 16 VR 269 Sh…
Director of Public Prosecutions v Houghton
[2024] ACTSC 68

…9; 244 CLR 120 R v Bugmy [2013] HCA 37; 249 CLR 571 R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 R v Deng [2022] ACTSC 143 R v Forrest [2016] ACTSC 321; 11 ACTLR 311 R v Forrest (No 2) [2017] ACTSC 83 R v Houghton (Unreported, ACT Supreme Court, 3 August 2012) R v Howell [2018] ACTSC 155 R v Hudson […
DPP v Chen
[2023] ACTSC 154 Para 1

…I note that the mere fact of participation in the restorative justice process may or may not, of itself, be demonstrative of remorse: see R v Forrest [2016] ACTSC 321 at [63]. However, s 33(1)(y) of the Sentencing Act requires the Court to take into account the acceptance of responsibility of an offender to take pa…
DPP v XK
[2023] ACTSC 141 Para 1

…The mere fact of participation in the restorative justice process may or may not, of itself, be sufficient evidence of remorse: see R v Forrest [2016] ACTSC 321; 11 ACTLR 311 at [63]. However, s 33(1)(y) of the Sentencing Act requires the Court to take into account the acceptance of responsibility of an offender to…
R v Fleury (No 2)
[2022] ACTSC 293 Para 63

…. … The mere fact of participation in the restorative justice process may or may not, of itself, be sufficient evidence of remorse: see R v Forrest [2016] ACTSC 321 at [63]. However, s 33(1)(y) of the Sentencing Act requires the Court to take into account the acceptance of responsibility of an offender to take part…
R v Winters (No 2)
[2022] ACTSC 378 Para 8

…contained in the Crimes (Restorative Justice) Act 2004 (ACT), but this is the approach to its interpretation that the Court has accepted: R v Forrest [2016] ACTSC 321; 11 ACTLR 311 at 318; [39].…
R v Winters (No 2)
[2022] ACTSC 377 Para 8

…contained in the Crimes (Restorative Justice) Act 2004 (ACT), but this is the approach to its interpretation that the Court has accepted: R v Forrest [2016] ACTSC 321; 11 ACTLR 311 at 318; [39].…
R v Loeschnauer
[2022] ACTSC 30 Para 1

…ng. The mere fact of participation in the restorative justice process may or may not, of itself, be sufficient evidence of remorse: see R v Forrest [2016] ACTSC 321 at [63]. However, s 33(1)(y) of the Sentencing Act requires the Court to take into account the acceptance of responsibility of an offender to take part…
R v Carpenter
[2022] ACTSC 6 Para 1

…rative justice in the sentencing exercise. See also: R v BC [2019] ACTSC 233; R v Catania [2017] ACTSC 264; R v Gordon [2018] ACTSC 94; R v Forrest [2016] ACTSC 321; 11 ACTLR 311.…
R v Antonovic (No 2)
[2021] ACTSC 198 Para 1

…I have discussed what restorative justice is and its operation in more detail in R v Forrest [2016] ACTSC 321 at [4]-[34] and do not need to repeat that here. I rely on what I there said.…
R v John
[2017] ACTSC 144 Para 1

…s noted above (at [73]-[74]), Ms John participated in a restorative justice process. I have described the basis of restorative justice in R v Forrest [2016] ACTSC 321; 11 ACTLR 311 at 312-3; [4]-[8].…
R v Wyatt
[2017] ACTSC 87 Para 1

…The Supreme Court is empowered to make such an order only upon satisfaction of a number of criteria under the Act. In R v Forrest [2016] ACTSC 321; 11 ACTLR 311 ( Forrest ) at [4]–[34], Refshauge J set out a comprehensive analysis of the Act and its objectives, but that was in a context where both parties consented…
R v Forrest (No 2)
[2017] ACTSC 83 Para 1

…y to 37 offences, and on 29 September 2016, I referred him for restorative justice under the Crimes (Restorative Justice) Act 2004 (ACT): R v Forrest [2016] ACTSC 321; 11 ACTLR 311 ( Forrest (2016) ).…

View all 14 citing cases →

Cases cited in this decision · 10 of 10 shown

R v McCurley
[2016] ACTSC 219 Para 1

…g and successful participation in restorative justice may well be regarded as indicative of remorse as found, for example, by Burns J in R v McCurley [2016] ACTSC 219 at [13]. That, however, may not necessarily be so and a willingness to participate in itself may not be sufficient evidence of remorse: Johnson v The…
Fusimalohi v The Queen
[2012] ACTCA 49 Para 1

…f guilty and remorse, which may well be evidence of an acceptance of responsibility, is an important factor in sentencing. See Fusimalohi v The Queen [2012] ACTCA 49 at [31]; Della-Vedova v The Queen [2009] NSWCCA 107 at [51]. It is, under s 33(1)(w) of the Crimes (Sentencing) Act a sentencing consideration. Indee…
Hogan v Hinch
[2011] HCA 4 Para 1

…ipation in such a process will assist the rehabilitation of the offender, which ultimately, is for the protection of the community. See Hogan v Hinch (2011) 243 CLR 506 at 537; [32].…
R v Goodwin
[2009] ACTSC 111 Para 1

…ore problematic. No victim appeared before me and I did not have any Victim Impact Statement. I had, however, a draft Case Statement (see R v Goodwin [2009] ACTSC 111; 233 FLR 473 at 478-9; [26]-[35]. I also had a police statement of facts in relation to the aggravated robbery and some associated offences.…
Della-Vedova v R
[2009] NSWCCA 107 Para 1

…f an acceptance of responsibility, is an important factor in sentencing. See Fusimalohi v The Queen [2012] ACTCA 49 at [31]; Della-Vedova v The Queen [2009] NSWCCA 107 at [51]. It is, under s 33(1)(w) of the Crimes (Sentencing) Act a sentencing consideration. Indeed, it is regarded as a very relevant consideration.…
R v Ardler
[2004] ACTCA 4 Para 1

…the criminal law. It may mean, for example, the physical acts that constitute the offence; cf R v Ardler [2004] ACTCA 4; 144 A Crim R 552. Thus, a person may accept responsibility for hitting another person but deny that it was an assault because it was accidental. I do not have to express a final view on this i…
R v Goodwin
[2003] NTCCA 9 Para 1

…o victim appeared before me and I did not have any Victim Impact Statement. I had, however, a draft Case Statement (see R v Goodwin [2009] ACTSC 111; 233 FLR 473 at 478-9; [26]-[35]. I also had a police statement of facts in relation to the aggravated robbery and some associated offences.…
Cameron v the Queen
[2002] HCA 6 Para 1

…33(1)(w) of the Crimes (Sentencing) Act a sentencing consideration. Indeed, it is regarded as a very relevant consideration. See Cameron v The Queen [2002] HCA 6; 209 CLR 339 at 343; [11], [14].…
Joye v Beach Petroleum NL
[1996] FCA 502 Para 1

…nces committed by Mr Forrest is an offence which “relates to money or property”. “Relates to” is, as pointed out in Joye v Beach Petroleum NL (1996) 67 FCR 275 at 285, “a wide term”, as the High Court has acknowledged, and “it will depend upon the context whether it is necessary that the relationship be direct or su…
NZHC 1027 and Johnson v R
[2016] NZCA 144 Para 1

…]. That, however, may not necessarily be so and a willingness to participate in itself may not be sufficient evidence of remorse: Johnson v The Queen [2016] NZCA 144 at [27].…

Legislation cited in this decision · 7

Crimes (Restorative Justice) Act 2004 (ACT)
12, 17, 19, 20(2), 22, 24, 25, 27, 28, 3... 12 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT)
33, 33(1)(w) 3 mentions (from Para 1)
Domestic Violence and Protection Orders Act 2008 (ACT)
13(2), 90 3 mentions (from Para 1)
Legislation Act 2001 (ACT)
42 2 mentions (from Para 1)
Victims of Crime Act 1994 (ACT)
6 2 mentions (from Para 1)
Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT)
1 mention
Crimes Act 1900 (ACT)
1 mention (from Para 1)