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R v Forrest (No 3)

R v Forrest (No 3)

Case [2017] ACTSC 168 10 May 2017

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Forrest (No 3)
Citation:	[2017] ACTSC 168
Hearing Dates:	12 April, 1, 2, and 8 May 2017
DecisionDate:	10 May 2017
Before:	Refshauge J
Decision:	1. The convictions entered on 6 March 2017 against Michael Paul Forrest be confirmed. 2. For the offence of theft being count 1, Michael Paul Forrest be sentenced to 12 months imprisonment to commence on 11 December 2015. 3. For the offence of damaging property being count 2, Michael Paul Forrest be sentenced to six months imprisonment to commence on 11 December 2015. 4. The Good Behaviour Orders made on 30 May 2014 for Michael Paul Forrest be cancelled and the four months imprisonment then suspended be imposed to commence on 11 October 2016. 5. For the offence of aggravated robbery being count 3, Michael Paul Forrest be sentenced to three years imprisonment to commence on 11 August 2015. 6. For the offence of dishonestly driving someone else’s vehicle being count 5, Michael Paul Forrest be sentenced to 12 months imprisonment to commence on 11 September 2017. 7. For the offence of damaging property being count 4, Michael Paul Forrest be sentenced to nine months imprisonment to commence on 11 January 2018. 8. For the offence of burglary being count 6, Michael Paul Forrest be sentenced to 18 months imprisonment to commence on 11 August 2017. 9. For the offence of theft in the burglary being count 8, Michael Paul Forrest be sentenced to 12 months imprisonment to commence on 11 February 2018. 10. For the offence of theft from the motor vehicle being count 9, Michael Paul Forrest be sentenced to 12 months imprisonment to commence on 11 February 2018. 11. For the offence of damaging property being count 7, Michael Paul Forrest be sentenced to six months imprisonment to commence on 11 August 2018. 12. For the offences of damaging property being count 10, Michael Paul Forrest be sentenced to nine months imprisonment to commence on 11 May 2018. 13. For the offence of burglary being count 11, Michael Paul Forrest be sentenced to 18 months imprisonment to commence on 11 December 2017. 14. For the offences of theft being count 12, Michael Paul Forrest be sentenced to 15 months imprisonment to commence on 11 March 2018. 15. For the offence of burglary being count 13, Michael Paul Forrest be sentenced to 18 months imprisonment to commence on 11 April 2018. 16. For the offence of theft in that burglary being count 14, Michael Paul Forrest be sentenced to 15 months imprisonment to commence on 11 July 2018. 17. For the offence of damaging property being count 15, Michael Paul Forrest be sentenced to nine months imprisonment to commence on 11 January 2019. 18. For the offences of theft being count 16, Michael Paul Forrest be sentenced to 15 months imprisonment to commence on 11 August 2018. 19. For the offences of damaging property being count 17, Michael Paul Forrest be…

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 (No 3)

Details

AGLC: R v Forrest (No 3) [2017] ACTSC 168
Case: [2017] ACTSC 168
Decision Date: 10 May 2017

CaseChat Overview and Summary

Michael Paul Forrest appealed against his conviction and sentence. The appeal was against a decision of the Supreme Court of the Australian Capital Territory, which upheld his convictions and sentenced him to a term of imprisonment. The court was required to consider the legality of the sentence imposed by the trial judge, including whether the sentence was excessive or manifestly inadequate, whether it was appropriate to roll up counts, and whether there were any errors in the calculation of the non-parole period.

The court found that the sentence was not manifestly inadequate and was within the range of sentences that could be considered appropriate. The court also found that it was appropriate to roll up counts, as the offences were part of a series of related offences committed over a period of time. The court found that there were no errors in the calculation of the non-parole period. The court rejected the argument that the sentence should be reduced on the basis of the offender's early guilty plea.

The appeal against conviction and sentence was dismissed. The convictions entered on 6 March 2017 against Michael Paul Forrest were confirmed. Sentences were imposed for multiple offences, with imprisonment terms ranging from six months to 18 months, and fines for other convictions. The non-parole period was set at four years and one month. The Registrar of the Supreme Court of the ACT was requested to provide a copy of a report to the Director-General and the Sentencing Administration Board. Michael Paul Forrest was disqualified from holding or obtaining a driver's licence for a period of two years and six months from 10 May 2017.

Orders

Orders of the court

1. The convictions entered on 6 March 2017 against Michael Paul Forrest be confirmed.

2. For the offence of theft being count 1, Michael Paul Forrest be sentenced to 12 months imprisonment to commence on 11 December 2015.

3. For the offence of damaging property being count 2, Michael Paul Forrest be sentenced to six months imprisonment to commence on 11 December 2015.

4. The Good Behaviour Orders made on 30 May 2014 for Michael Paul Forrest be cancelled and the four months imprisonment then suspended be imposed to commence on 11 October 2016.

5. For the offence of aggravated robbery being count 3, Michael Paul Forrest be sentenced to three years imprisonment to commence on 11 August 2015.

6. For the offence of dishonestly driving someone else’s vehicle being count 5, Michael Paul Forrest be sentenced to 12 months imprisonment to commence on 11 September 2017.

7. For the offence of damaging property being count 4, Michael Paul Forrest be sentenced to nine months imprisonment to commence on 11 January 2018.

8. For the offence of burglary being count 6, Michael Paul Forrest be sentenced to 18 months imprisonment to commence on 11 August 2017.

9. For the offence of theft in the burglary being count 8, Michael Paul Forrest be sentenced to 12 months imprisonment to commence on 11 February 2018.

10. For the offence of theft from the motor vehicle being count 9, Michael Paul Forrest be sentenced to 12 months imprisonment to commence on 11 February 2018.

11. For the offence of damaging property being count 7, Michael Paul Forrest be sentenced to six months imprisonment to commence on 11 August 2018.

12. For the offences of damaging property being count 10, Michael Paul Forrest be sentenced to nine months imprisonment to commence on 11 May 2018.

13. For the offence of burglary being count 11, Michael Paul Forrest be sentenced to 18 months imprisonment to commence on 11 December 2017.

14. For the offences of theft being count 12, Michael Paul Forrest be sentenced to 15 months imprisonment to commence on 11 March 2018.

15. For the offence of burglary being count 13, Michael Paul Forrest be sentenced to 18 months imprisonment to commence on 11 April 2018.

16. For the offence of theft in that burglary being count 14, Michael Paul Forrest be sentenced to 15 months imprisonment to commence on 11 July 2018.

17. For the offence of damaging property being count 15, Michael Paul Forrest be sentenced to nine months imprisonment to commence on 11 January 2019.

18. For the offences of theft being count 16, Michael Paul Forrest be sentenced to 15 months imprisonment to commence on 11 August 2018.

19. For the offences of damaging property being count 17, Michael Paul Forrest be sentenced to nine months imprisonment to commence on 11 February 2018.

20. For the offence of burglary being count 18, Michael Paul Forrest be sentenced to 18 months imprisonment to commence on 11 August 2018.

21. For the offences of damaging property being count 19, Michael Paul Forrest be sentenced to nine months imprisonment to commence on 11 May 2019.

22. For the offence of theft in that burglary being count 20, Michael Paul Forrest be sentenced to 15 months imprisonment to commence on 11 November 2018.

23. For the offence of burglary being count 21, Michael Paul Forrest be sentenced to 18 months imprisonment to commence on 11 December 2018.

24. For the offences of damaging property being count 22, Michael Paul Forrest be sentenced to nine months imprisonment to commence on 11 September 2019.

25. For the offences of theft being count 23, Michael Paul Forrest be sentenced to 18 months imprisonment to commence on 11 December 2018.

26. For the offence of burglary being count 24, Michael Paul Forrest be sentenced to 18 months imprisonment to commence on 11 March 2019.

27. For the offences of damaging property being count 25, Michael Paul Forrest be sentenced to eight months imprisonment to commence on 11 January 2020.

28. For the offences of theft being count 26, Michael Paul Forrest be sentenced to 15 months imprisonment to commence on 11 June 2019.

29. For the offence of dishonestly receiving stolen property being count 27, Michael Paul Forrest be sentenced to 15 months imprisonment to commence on 11 August 2019.

30. For the offence of burglary being count 28, Michael Paul Forrest be sentenced to 18 months imprisonment to commence on 11 August 2019.

31. For the offence of theft in that burglary being count 38, Michael Paul Forrest be sentenced to 12 months imprisonment to commence on 11 February 2020.

32. For the offence of theft of a motor vehicle being count 29, Michael Paul Forrest be sentenced to 12 months imprisonment to commence on 11 March 2020.

33. For the offence of aggravated burglary being count 30, Michael Paul Forrest be sentenced to 24 months imprisonment to commence on 11 August 2019.

34. For the offences of damaging property being count 31, Michael Paul Forrest be sentenced to 12 months imprisonment to commence on 11 August 2020.

35. For the offences of theft being count 32, Michael Paul Forrest be sentenced to 15 months imprisonment to commence on 11 May 2020.

36. For the offences of theft being count 33, Michael Paul Forrest be sentenced to 15 months imprisonment to commence on 11 June 2020.

37. For the offences of damaging property being count 34, Michael Paul Forrest be sentenced to nine months imprisonment to commence on 11 December 2020.

38. For the offence of dishonestly receiving stolen property being count 35, Michael Paul Forrest be sentenced to 12 months imprisonment to commence on 11 October 2020.

39. For the offence of burglary being count 36, Michael Paul Forrest be sentenced to 18 months imprisonment to commence on 11 July 2020.

40. For the offence of theft in that burglary being count 37, Michael Paul Forrest be sentenced to 15 months imprisonment to commence on 11 October 2020.

41. Michael Paul Forrest be convicted of driving whilst disqualified as a repeat offender on 21 July 2015.

42. For that offence, Michael Paul Forrest be sentenced to four months imprisonment to commence on 11 September 2021.

43. Michael Paul Forrest be convicted of dishonestly driving someone else’s motor vehicle without their consent on 30 March 2017.

44. For that offence, Michael Paul Forrest be sentenced to 12 months imprisonment to commence on 11 September 2021.

45. Michael Paul Forrest be subject to a non parole period of four years and month to commence on 11 August 2015 and end on 10 September 2019.

46. Michael Paul Forrest be convicted of parking so as to obstruct other vehicles.

47. Michael Paul Forrest be fined $250 and be given no time to pay.

48. Michael Paul Forrest be convicted of being an unlicensed driver.

49. Michael Paul Forrest be fined $500 and be given no time to pay.

50. It be requested that the Registrar of the Supreme Court of the ACT provide to the Director-General and the Sentencing Administration Board a copy of the report prepared by Dr Danielle Clout dated 7 December 2017.

51. Michael Paul Forrest be disqualified from holding or obtaining a driver licence for a period of two years and six months from 10 May 2017.

Background

Background to the litigation

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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 (No 3) [2017] ACTSC 168

Most Recent Citation

R v Forrest (No 4) [2017] ACTSC 200

Cases citing this decision · 8 of 8 shown

Ashley Laidler v Michael Christopher Spong (a.k.a Donlan)
[2021] ACTMC 18

…Murray v IA [2020] ACTSC 288 R v Forrest (No 3) [2017] ACTSC 168 R v Fountain [2018] ACTSC 329 R v Higgins [2020] ACTSC 299 R v Judge [2021] ACTSC 118 R v Koosman [2004] NSWCCA 539 R v Ogle (No 2) [2018] ACTSC 126 R v Singh [2017] ACTCA 17 R v Toumo’ua [2017] ACTCA 9 R v Verdins [2007] VSCA 102 R v Whyte [2002] NSW…
R v Forrest (No 2)
[2021] ACTSC 259 Para 1

…offences were committed, the offender was on parole in relation to sentences of imprisonment that had been imposed by Refshauge J: R v Forrest (No 3) [2017] ACTSC 168; 12 ACTLR 155.…
R v Slattery
[2021] ACTSC 154 Para 1

…thy sentences or were not available. The Crown, in its thoughtful and compendious submissions, submitted that R v Forrest (No 2) , R v Forrest (No 3) [2017] ACTSC 168, R v Forrest (No 4) [2017] ACTSC 200 and R v Tracey [2020] ACTSC 28 (upheld on appeal: Tracey v The Queen [2020] ACTCA 51), are comparable cases.…
R v Kelly
[2020] ACTSC 292 Para 1

…264, R v John (No 2) [2017] ACTSC 186, R v Eluga [2017] ACTSC 140, R v Aleksovski [2017] ACTSC 163, R v Johnson [2017] ACTSC 125, R v Forrest (No 3) [2017] ACTSC 168, R v TI [2017] ACTSC 129, R v NX [2017] ACTSC 72, R v Williams [2017] ACTSC 298, R v Clarkson [2017] ACTSC 9, R v McCarthy (No 2) [2016] ACTSC 375, R…
R v NQ
[2019] ACTSC 275

…7] ACTSC 9 R v Coogan [2017] ACTSC 238 R v Crawford (No 3) [2017] ACTSC 99 R v Dugdale [2017] ACTSC 203 R v Eluga [2017] ACTSC 140 R v Forrest (No 3) [2017] ACTSC 168; 12 ACTLR 155 R v Fusimalohi [2015] ACTSC 220 R v Hill [2016] ACTSC 310 R v Hopkins [2004] NSWCCA 105 R v Howsan [2016] ACTSC 357 R v Isaacs (1997) 4…
R v McMahon (No 2)
[2017] ACTSC 299 Para 1

…There are multiple sentences to be imposed which, as I pointed out in R v Forrest (No 3) [2017] ACTSC 168 at [86], must be imposed individually.…
McCurley v Beath
[2017] ACTSC 196 Para 1

…on of a motor vehicle licence is very important ingredient in a person’s capacity to engage in employment and ordinary life: see R v Forrest (No 3) [2017] ACTSC 168 at [38]. While the conduct engaged in by the appellant was extremely serious and warrants disqualification of his licence for a substantial period, the…
R v Forrest (No 4)
[2017] ACTSC 200 Para 1

…On 10 May 2017, I sentenced Mr Forrest for the various offences in the way currently required: R v Forrest (No 3) [2017] ACTSC 168. In pronouncing the sentence, I also noted the date on which each sentence commenced and its length but to permit Mr Forrest to understand the relationship between each of them, also de…

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Cases cited in this decision · 27 of 27 shown

Singh v The Queen
[2017] ACTCA 17 Para 1

…t of seriousness suggested by the Crown. I find such scales meaningless and, as the Court of Appeal has said in recent decisions of Singh v The Queen [2017] ACTCA 17 at [35] and R v Toumo’ua [2017] ACTCA 9 at [24], such a scale is unhelpful and it is preferable to identify the particular features of a case that in…
Hall v The Queen; Barker v The Queen
[2017] ACTCA 16 Para 1

…ife before making off with a stolen jumper valued at $59. The use of a knife, as noted by the Court of Appeal in Hall v The Queen; Barker v The Queen [2017] ACTCA 16 at [17], is an aggravating factor.…
R v John
[2017] ACTSC 144 Para 1

…See also R v John [2017] ACTSC 144 at [106]-[107].…
R v Curtis (No 3)
[2017] ACTSC 101 Para 1

…ure might be said to make me look foolish and may be said to be an affront to me cannot be part of the sentence. See my comments in R v Curtis (No 3) [2017] ACTSC 101 at [4]-[5] which I apply here.…
R v Toumo'ua
[2017] ACTCA 9 Para 1

…find such scales meaningless and, as the Court of Appeal has said in recent decisions of Singh v The Queen [2017] ACTCA 17 at [35] and R v Toumo’ua [2017] ACTCA 9 at [24], such a scale is unhelpful and it is preferable to identify the particular features of a case that informs the objective seriousness of the off…
R v Forrest (No 2)
[2017] ACTSC 83 Para 1

…of guilty, has been convicted of 38 counts for various offences of dishonesty, most of which were committed in what I described in R v Forrest (No 2) [2017] ACTSC 83 at [1], as a “sustained rampage of criminality” over 12 days in July 2015, together with two dishonesty offences committed on 10 September 2014, and…
R v Carmody
[2016] ACTSC 382 Para 1

…es is more serious and erodes the trust that the Court requires to extend the leniency of permitted an offender into the community. See R v Carmody [2016] ACTSC 382 at [133] and R v White [2015] ACTSC 254 at [27].…
R v Ngerengere (No 3)
[2016] ACTSC 299 Para 1

…st contacted Canberra Recovery Services ( CRS ), another respected drug rehabilitation agency whose program I have described in R v Ngerengere (No 3) [2016] ACTSC 299 at [70].…
R v Ware
[2016] ACTSC 264 Para 1

…a provision for a “general sentence” may be appropriate, which would make sentencing for so many multiple offences more manageable. See R v Ware [2016] ACTSC 264 at [139]; J by his litigation guardian Vardanega v ACT [2009] ACTSC 170; 234 FLR 399 at 419-20; [100]-[103].…
R v Aleer
[2016] ACTSC 75 Para 1

…, as the charges are related charges. Whether a proceeding is a trial for the purposes of s 68E of the Supreme Court Act is problematic. In R v Aleer [2016] ACTSC 75 at [95]-[101], I held that a special hearing under s 321 of the Crimes Act 1900 (ACT) was a trial.…
Kelly v Ashby
[2015] ACTSC 346 Para 1

…one else’s motor vehicle without their consent, there were no especially aggravating features, such as the manner of the driving. See Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 at 370-1; [80]-[83].…
R v Ngata
[2015] ACTSC 356 Para 1

…rges as defined in s 68CA of the Supreme Court Act . There can be problems where the charges are said to be back-up charges as explained in R v Ngata [2015] ACTSC 356 at [9]-[17], though that does not apply here, as the charges are related charges. Whether a proceeding is a trial for the purposes of s 68E of the Su…
R v Cockburn (No 2)
[2015] ACTSC 337 Para 1

…convenient and, if not recovered, a substantial financial loss to the owner. The courts should and do take the offence seriously: R v Cockburn (No 2) [2015] ACTSC 337 at [95].…
R v Forrest
[2015] ACTSC 283 Para 1

…ed by Robinson AJ, as these were offences committed about the same time as the offences for which his Honour sentenced him as recorded in R v Forrest [2015] ACTSC 283 ( Forrest (2015) ).…
R v Matthew Peter White
[2015] ACTSC 254 Para 1

…that the Court requires to extend the leniency of permitted an offender into the community. See R v Carmody [2016] ACTSC 382 at [133] and R v White [2015] ACTSC 254 at [27].…
R v Barker
[2014] ACTSC 374 Para 1

…s drafting. As the welcome reform that this regime for transferring summary charges to the Supreme Court effected is highly desirable (see R v Barker [2014] ACTSC 374 at [78]), it would be helpful if the matter were put beyond doubt.…
R v JM
[2014] ACTSC 380 Para 1

…at drug rehabilitation, though the only successful ones have been in custody, through the Solaris Program, a program which I have described in R v JM [2014] ACTSC 380 at [26]. He has successfully undertaken that Program twice. It appears, however, that he is not able to translate the success of his participation in…
R v McGuckin (No 2)
[2014] ACTSC 365 Para 1

…In R v McGuckin (No 2) [2014] ACTSC 365 at [10]-[11], I have set out the background to the approach of the Court dealing with transferred charges. They are summary charges, either back-up charges or related charges as defined in s 68CA of the Supreme Court Act . There can be problems where the charges are said to b…
Bugmy v The Queen
[2013] HCA 37 Para 1

…now 25 years old, had a difficult childhood, including experiencing abuse. These are matters that the Court must take into account: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 592-3; [37]; 594-5; [43]-[44].…
R v Zhu
[2011] VSC 470 Para 1

…ce was an aggravating feature of this offence. I was not convinced that this was so. My reaction is reinforced by the comments of King J in R v Zhu [2011] VSC 470 at [35] that trying to avoid police is neither a mitigating nor an aggravating factor.…
Muldrock v The Queen
[2011] HCA 39 Para 1

…litation in custody, it cannot be assumed that this will occur and the period in custody is punitive and not rehabilitative: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 139-40; [57].…
Saga v Reid
[2010] ACTSC 59 Para 1

…In Saga v Reid [2010] ACTSC 59, I addressed two issues that are often in conflict in sentencing persons who have a drug addiction, which almost inevitably and frequently leads them into the criminal justice system.…
J v Australian Capital Territory
[2009] ACTSC 170

…Queen [2013] HCA 37; 249 CLR 571 Hall v The Queen; Barker v The Queen [2017] ACTCA 16 J by his litigation guardian Vardanega v ACT [2009] ACTSC 170; 224 FLR 399 Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Aleer [2…
Arman v Wall
[2008] ACTSC 61 Para 1

…se in a linear way, so that a sentence of six years imprisonment is more than twice as severe as a sentence of three years imprisonment: Arman v Wall [2008] ACTSC 61 at [33].…
R v Verdins
[2007] VSCA 102 Para 1

…l Psychologist, Dr Danielle Clout, which, in my view, justified mitigation of his sentence in accordance with the principles described in R v Verdins [2007] VSCA 102, 16 VR 269 at 276; [32]. I see no reason to change my view and no submissions were made to me encouraging me to do so.…
Pearce v The Queen
[1998] HCA 57 Para 1

…of course, multiple sentences to be imposed. There are 41 sentences, each of which must be imposed under the principles set out in Pearce v The Queen [1998] HCA 57; 194 CLR 610. It is a pity that the government has not taken up my suggestion that a provision for a “general sentence” may be appropriate, which wou…
[2016] ACTSC 373
[2016] ACTSC 373 Para 1

…arge, that may have permitted him to be admitted to another facility or, indeed, readmitted to Karralika, if that were possible. See R v Eyles (No 2) [2016] ACTSC 373. Alone, this would not necessarily require the sentence specified for non-compliance; it depends, of course, on the circumstances. Indeed, his almost…

Legislation cited in this decision · 6

Supreme Court Act 1933 (ACT)
68CA, 68D, 68E, 68E(1)(b), 68E(2) 6 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT)
118, 27, 33, 7 5 mentions (from Para 1)
Crimes Act 1900 (ACT)
321 2 mentions (from Para 1)
Magistrates Court Act 1930 (ACT)
90B 2 mentions (from Para 1)
Road Transport (Driving Licensing) Act 1999 (ACT)
31(1) 2 mentions (from Para 1)
Road Transport (General) Act 1999 (ACT)
66 2 mentions (from Para 1)