Forbes v The King
[2024] NZHC 3177
•12 November 2024
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2024-476-16
CRI-2024-476-17 [2024] NZHC 3177
BETWEEN LISA MARIE FORBES
Appellant
AND
THE CROWN
Respondent
Hearing: 17 October 2024 Appearances:
H V Bennett for the Appellant
A R McRae for the Respondent (via VMR)
Judgment:
12 November 2024
JUDGMENT OF HARLAND J
Introduction
[1] On 29 August 2024, having pleaded guilty to one charge of making a false statement,1 the appellant was sentenced in the District Court to a term of two months’ home detention.2 She was also disqualified from holding or obtaining a driver’s licence for a period of six months and her application for final name suppression was declined. The appellant appeals her sentence and the dismissal of her application for final name suppression to this Court.
[2]The grounds for the appeal are that:
1 Crimes Act 1961, s 111; maximum penalty three years’ imprisonment.
2 R v Forbes [2024] NZDC 20918.
FORBES v R [2024] NZHC 3177 [12 November 2024]
(a) the sentence of home detention was manifestly excessive and a lesser sentence of community detention and/or supervision and/or community work should have been imposed;
(b) the Judge did not have all the relevant information before him for the name suppression application to be properly determined but it should not have been declined; and
(c) the disqualification order (made under s 124 of the Sentencing Act 2002) was wrong in law and the sentencing Judge erred in the exercise of his discretion when ordering it.
[3] An application for leave to adduce fresh evidence on appeal has also been filed. The evidence comprises two affidavits (from the appellant and her employer) and a letter from her counsellor which support the application for final suppression of name that was not filed by previous counsel at the time of the sentencing hearing.
[4] The Crown opposes the first and second grounds of appeal ([2](a) and (b) above) but accepts that there was no legal basis for the order for disqualification to be made and it should be quashed. Although not opposing the application for leave to adduce fresh evidence, the Crown submits that the fresh evidence does not establish a basis for a final order of name suppression for the appellant.
Principles on appeal
[5] Appeals against sentence are brought under s 250 of the Criminal Procedure Act 2011 and must be determined in accordance with that Act. The High Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that, in the event, a different sentence should be imposed.
[6] It is only if the sentence is manifestly excessive that the Court should interfere with the exercise of the sentencing Judge’s discretion.3 The focus is on the sentence imposed rather than the process by which the sentence is reached.4
The offending
[7] As the appellant pleaded guilty to the charge, she was sentenced based on an amended summary of facts which she accepted.
[8] On the evening of 12 August 2023, the appellant was drinking at a relative’s home in Timaru. Around 10:00 pm, the appellant drove, with her cousin in the front passenger seat. A complainant alerted the Police to fact the vehicle was swerving within its lane and driving without headlights. The vehicle stopped opposite the appellant’s cousin’s address, where the complainant informed the appellant that she had called the Police.
[9] The appellant and her cousin walked down the driveway towards her cousin’s home. The appellant’s cousin told the appellant, should the Police arrive, that she would tell them she had been driving.
[10] On arrival, the Police asked who had been driving the vehicle parked on the street. The appellant’s cousin told the Police that she had been the driver of the vehicle. The appellant’s cousin was breath tested, returning a reading of 0.499 micrograms of alcohol per litre of breath.
[11] However, further investigations conducted by the Police identified the appellant as the driver of the vehicle.
[12] On 21 August 2023, the Police spoke to the appellant. She stated she was not the driver and maintained that her cousin had been the driver of the vehicle. When the appellant was told that her cousin had told the Police that she was the driver, the appellant maintained her stance that she was not the driver of the vehicle. The appellant was warned by the Police that she could be charged if she was found to be
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].
4 At [36].
lying. The appellant then admitted she was the driver of the vehicle on the evening of 12 August 2023. The appellant explained that she did not admit to driving because she panicked and because her cousin had offered to put her hand up, believing she would be under the limit.
[13] There is no doubt this situation arose because at the time the appellant had one previous conviction for driving with excess breath alcohol. On 1 October 1996, she was convicted of driving with a breath alcohol level of 568 micrograms per litre of breath, when the legal limit is 400 micrograms. On this occasion, the appellant was fined the sum of $550 and disqualified from driving for a period of six months.
[14] A charge was laid against the appellant on 19 December 2023. This charge was later amended and the appellant pleaded guilty to it.
Decision under appeal
[15] The appellant and her cousin were both sentenced on the same day. The Judge adopted a starting point of six to eight months’ imprisonment for the appellant’s cousin, which he reduced to home detention for a period of three months.5
[16]In sentencing the appellant, the Judge said:6
[5] As I said to her offsider, making false statements to the police in situations like this goes very much to the heart of the justice system and what is required is a sentence that holds the defendant accountable and, perhaps primarily on this occasion, sends a signal to the community that it is to be taken seriously and it is not just tricking the police, it is bypassing the justice system.
[6] We have got breath and blood alcohol legislation for a good reason because drunk drivers kill people. It is in society’s best interest those that choose to drink and drive are held to account and you managed to get around it on this occasion for a while.
[17] The Judge agreed with the Crown that the appropriate starting point for the appellant was a sentence of imprisonment of “around four months”. He said he had “no hesitation in converting that to home detention”. The Judge applied credit to
5 R v Forbes [2024] NZDC 20896.
6 R v Forbes, above n 2.
reflect the appellant’s guilty plea (without specifying how much that credit was) and imposed an end sentence of two months’ home detention.
[18] As to the application for final name suppression, the Judge noted he had not received a formal application for it, despite the four month period between the guilty plea and conviction, further noting:
[13] Some four months have elapsed and I have, still, no application for final name suppression and I have no evidence filed before the Court. What I do have is a letter from the defendant’s employer which outlines her responsibilities. Somewhat ironically, the person who has written the letter describes the organisation as one that is reputable and which understands the importance of transparency and accountability but it, even in the same paragraph, seeks to avoid transparency and accountability.
[14] The application for final suppression is made on the basis that publication of the defendant’s name would see a diminishment in the trust people have in her, that it would provide an impediment to recruitment and retention for her employer and it would impact on business operations. I would have expected to have some evidence before the Court.
[15] At the end of the day, the publication of somebody’s name following convictions for an offence such as this is very much in the public interest because it goes to the defendant’s honesty and reliability and, for that reason, I am not satisfied extreme hardship has been made out to her or undue hardship to her employer. I do this based on a letter, not evidence. As I have said, I would have expected there to have been evidence filed in the interceding four months. I am prepared to allow for the suppression to continue for 10 working days so you can consider your options.
Was the sentence of home detention manifestly excessive?
[19]Ms Bennett, for the appellant, submitted that the sentencing Judge erred by:
(a) conflating the credit for a guilty plea under s 9(2)(b), with the imposition of home detention in lieu of a short term of imprisonment under ss 15A and 80A of the Sentencing Act; and
(b) failing to take into account the appellant’s personal circumstances outlined in the pre-sentence report, including her need for assistance and support to address her alcoholism and her risk of reoffending (assessed as low), when determining the appropriate type and length of sentence.
[20] Although Ms Bennett submitted that the Judge had not correctly assessed parity considerations in her written submissions, at the hearing of the appeal (and because it had been clarified that the appellant’s cousin had also been charged with making a false statement (not wilfully perverting the course of justice)), Ms Bennett accepted that the Judge’s approach to parity did not amount to a material error. Nonetheless, she invited me to consider it in combination with the other two grounds of appeal. Ms Bennett accepted that the two grounds of appeal where errors were alleged were the main basis for her submission that the end sentence was manifestly excessive.
[21] Mr McRae, for the respondent, submitted that, when looked at in the round, an end sentence of less than two months’ home detention would not have adequately reflected the seriousness of the appellant’s offending nor addressed the principles and purposes of sentence which, in this case, require the sentence imposed to denounce such conduct and deter the appellant and others from similar offending.
[22] The appellant does not take any issue with the initial starting point sentence of four months’ imprisonment and neither did Mr McRae for the Crown. There are no tariff judgments for offending of this kind, nor were counsel able to point to any authorities that are sufficiently similar to be of assistance. Ultimately, this Court must stand back and assess the appellant’s culpability, in light of the maximum sentence Parliament has decided is appropriate for this type of offence.
[23] In this case, the facts speak for themselves. The appellant’s actions were designed to avoid confronting what is clearly a longstanding issue with alcohol which, as Mr McRae rightly noted, was further demonstrated by the fact that she has received an additional drink drive conviction, just five months after the incident giving rise to this appeal, but before she was sentenced on this charge.7
7 The appellant was convicted of driving with excess blood alcohol on 17 April 2024, the offending having occurred on 21 January 2024. The sentencing on the charge subject to this appeal was imposed on 29 August 2024.
[24] A sentence that deters and denounces the appellant’s conduct is clearly required. The Judge correctly referred to the sentencing purposes. The Judge referred to credit being applied to the sentence for the appellant’s guilty plea, although he did not articulate the percentage he applied to reflect it. If a 25 per cent discount had been applied (the full amount referred to in Hessell v R), the term of four months’ imprisonment would have been reduced to one of three months’ imprisonment.8
[25] As to whether the Judge ought to have taken into account the appellant’s personal circumstances outlined in the pre-sentence report, it would usually be appropriate for a Judge to acknowledge these and to provide reasons why, if considered inappropriate, any potentially mitigating matters were not considered.
[26] I have reviewed the Provision of Advice to Courts (PAC) report. What is interesting is the observation of the report writer that the watershed in the appellant’s life was not so much this offending, but her drink driving offending in January 2024. The report writer considered that this later offending, for which she was sentenced on 17 April 2024, prompted the appellant to make lifestyle changes, particularly addressing her consumption of alcohol. But, as well, the report writer noted that the appellant is in the early stages of making the necessary lifestyle changes. He observed that, as long as the appellant can refrain from consuming alcohol, her risk of reoffending could be assessed as low.
[27] Even though the report writer recommended that sentences of community work and supervision be imposed for this offending, he also addressed electronically monitored sentences (including community detention and/or home detention) and imprisonment. For all of these options, the appellant’s rehabilitative needs to address alcohol abuse were addressed by way of recommended special conditions.
[28] But as well, Ms Bennett submitted that there was important information in addition to the PAC report that was not before the Court at sentencing. In her affidavit filed in support of her appeal, the appellant outlines that she understood her then lawyer was to apply for an adjournment of her sentencing on the day she appeared for it. The appellant deposed that, on 20 August 2024, she had given her previous lawyer
8 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
a letter from her employer. She was asked on the morning of the sentencing for her employer to do another letter. Up until that point, the appellant had been advised by her lawyer’s wife that an adjournment would be requested and that it was likely she would not have to appear at Court, but she was told to go to Court “just in case”.
[29] When she arrived at Court, the appellant says she learnt that the letter she had provided to her lawyer from her employer had not been filed. Further, she deposes she was not asked by her then lawyer to swear an affidavit, but she also learnt on the day that no written submissions had been filed on her behalf either. As it transpires, another lawyer appeared for her on the allocated sentencing date. Although material that was not presented to the Court was likely more relevant to the application for final name suppression, nonetheless, it is not entirely clear from the Judge’s decision that submissions were made on the appellant’s behalf highlighting other potentially mitigating matters that were covered in the PAC report.
[30] The appellant’s background, as outlined in the PAC report, provides an explanation for her use of alcohol as a likely attempt to self-medicate. The PAC report noted that an internal substance screening test conducted during the pre-sentence interview recorded that the appellant was “at high risk of experiencing severe problems, including health, social, financial, legal and relationship issues from her alcohol abuse”.
[31] Although the appellant’s addiction to alcohol explains her offending, the proximity between her background and the offending is tenuous. Nonetheless, some further mitigating credit may have been applied by the Judge for it. Against that, there were two opportunities for the appellant to “come clean” about who was driving the vehicle, and it was only when threatened with the possibility of a charge that she finally admitted to being the driver. Standing back and taking these matters into account, a small extra credit of around five per cent could have been granted.
[32] If that was the case, a 30 per cent credit could have been applied to the starting point. This would have resulted in a term of imprisonment of around two and half months, however, whether this should have resulted in a lesser term of home detention would depend upon whether the term of home detention imposed was half of the term
of imprisonment imposed. I accept that this is almost always the rule of thumb that appears to be applied, but it is not the required outcome.9 Even if that was the case, the end outcome would be a term of home detention of around six weeks. The question that then arises is whether the difference between six and eight weeks means that the sentence is manifestly excessive.
[33] Given the nature of this offending and the need for the purposes of denunciation and deterrence (both personal and general), I am not persuaded that the end sentence was manifestly excessive. In terms of parity, it is also appropriate.
Could the appellant have succeeded in her application for permanent name suppression?
[34] An application for final suppression of the appellant’s name was made at the sentencing hearing however, due to circumstances beyond her control (outlined above), the information she had provided to her lawyer in support of the application was not filed with the Court in a satisfactory manner. This resulted in the application for final suppression of name being made without an evidential foundation being provided. The Judge dealt with this responsibly by granting interim name suppression to allow the appellant to file this appeal. Interim suppression of the appellant’s identity has continued.
[35] Affidavits from the appellant and her employer have been filed. In the absence of opposition to the application for leave to file this evidence, I grant it. I address the evidence filed in relation to the legal issues I need to address relevant to such applications.
The law
[36] Section 200 of the Criminal Procedure Act is the governing provision. The appellant relies on s 200(2)(a), which provides:
9 Brittin v Police [2017] NZHC 2410, [2018] 2 NZLR 147 at [59].
200 Court may suppress identity of defendant
(1) A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.
(2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(a)cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
(b)cast suspicion on another person that may cause undue hardship to that person; …
[37] It is well established that the starting point, when considering an application for name suppression, is the principle of open justice.10
[38] A two-stage analysis is required.11 In this case I must first be satisfied that the consequence outlined in subs (2)(a) would be likely to follow if no order were made and then I must determine whether, in the exercise of my discretion, I should forbid publication of the appellant’s name.
[39] In determining whether open justice should prevail, the balance must clearly favour suppression for an order to be made.12
[40] The threshold for extreme hardship is high. In Robertson v Police the Court of Appeal held:13
[48] … “hardship” on its own means “severe suffering or privation”. The addition of the qualifier “undue” in s 200(2)(c) indicates that something more than hardship simple is required, while the word “extreme” in s 200(2)(d) indicates something more again.
First stage analysis
[41] In the appellant’s case, Ms Bennett submitted that the appellant will suffer extreme hardship if her name is published that will negatively impact on her
10 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2] and [12].
11 Robertson v Police [2015] NZCA 7 at [39].
12 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 612 at [12].
13 Robertson v Police, above n 11.
employment (with flow on effects) but she accepted that something more than the loss of employment or livelihood is usually required to meet the threshold of extreme hardship.14 However, Ms Bennett also submitted that the impact on the appellant’s mental health, in combination with the potential loss of her employment, is sufficient to satisfy the test of extreme hardship
[42] The appellant is a recruitment consultant, employed in a business that operates two branches. She is one of three employees in one of the branches.
[43] The appellant has been employed in this role with this company for three and a half years. Her tasks include attracting new business, meeting clients, recruiting employees, overseeing the contractual process once a candidate has been selected and undertaking follow up checks. It is clear from the material filed that the appellant enjoys her job and that she is good at it.
[44] The appellant’s employer is concerned that, if the appellant’s name is published, it would tarnish the reputation of her business. She refers to the branch operating within a very small community where everyone knows each other.
[45] In particular, the appellant’s employer refers to the nature of the sentence imposed by the Court and deposes:
If a person applied for a role who had been sentenced to home detention for this type of conviction, [this] would send alarm bells to us and any prospective employer that there was more to this and it was white collar crime, making them virtually unemployable. Nobody would risk being associated with them in a professional business.
Potential publication places Ms Forbes’ job security in serious jeopardy. Should she lose name suppression, I would have no option but to terminate her employment due to the negative implications of publicly being associated with her in a small town …
[46] The appellant’s employer does not have an issue with continuing her employment if she has name suppression, but her employer further deposes:
If she were to lose name suppression, and thus have to apply for a job with another employer, it is unlikely they would be so understanding without knowing Lisa in the capacity that I do and without all of the facts.
14 Blackwood v R [2017] NZHC 1262 at [10]-[12].
[47] The appellant’s employer also deposes that she considers the appellant will struggle to find another professional role in line with her skills and experience, which she considered “sad as she has so much potential and helped so many people find their dream job or employee”. In conclusion, the appellant’s employer says it would be devastating to her business for suppression to be refused.
[48] Overall, I consider the appellant’s employer’s assessment of the likely consequences to be overstated and somewhat alarmist. It would be most surprising if there were grounds for dismissal because the appellant failed in her application for name suppression as the appellant’s employer contends. It is also somewhat surprising that no consideration seems to have been given to how these circumstances might be addressed in a positive rather than a negative way. These days there are many high- profile people who have been prepared to publicly share their difficulties with alcohol, thereby encouraging others to approach their own issues without unfairly stigmatising those who experience it.
[49] But I also recognise that, in this case, it is not so much the appellant’s alcohol addiction that is the issue, given that the appellant’s most recent conviction was somewhat publicised, but it is the nature of the offence in combination with it that is problematic. I accept this proposition at face value but, again, steps could be taken to provide a balanced response or context to the appellant’s offending. The appellant does not have any prior convictions for dishonesty offending and, put in context, although serious, the reasons behind it (alcohol addiction) are being addressed. There is nothing to suggest that there are ongoing concerns for a repeat of such behaviour in the future.
[50] I am not persuaded that the risks relating to the appellant’s employment are as dire as the appellant and her employer contend.
[51] But a more compelling point, as recognised by Ms Bennett, is the impact that publication may have on the appellant’s recovery and, more particularly, her mental health.
[52] A letter from the appellant’s therapist was provided to me. The therapist considers the appellant has been dealing with significant mental health struggles, which she identified as heightened anxiety and panic, negative rumination and worry about her future, which the therapist says is significantly impacting on the appellant’s functioning. Although the letter outlines that the therapist is a registered therapist, her qualifications and experience are not set out in any detailed way in affidavit form and there is no medical report confirming a medical diagnosis of anxiety. There is no evidence about the severity of the anxiety the appellant experiences, whether it is an ongoing issue or whether it is more a situational response. In the absence of these details, it is difficult for the Court to properly assess the severity of what is claimed.
[53] While I can accept that the appellant is very distressed by the thought of publication and that she is anxious about the implications for her, her response is typical of almost all largely law-abiding citizens who find themselves in difficulty with the law. I can accept hardship may result but the evidence before me does not establish the kind of extreme hardship the law requires to have been established to justify suppression.
Second stage analysis
[54] I have concluded that the threshold requirement in s 200(2) is not met. It is therefore not necessary for me to undertake the discretionary assessment outlined by the Court of Appeal in Robertson v Police that would follow had those requirements been met.15
Other
[55] Mr McRae submitted that the Court might consider suppression in relation to the appellant’s employer’s name and place of business. The application was not brought under s 202(1)(c) but, in any event, it is highly unlikely that any of the criteria outlined in s 202(2) would apply.
15 Robertson v Police, above n 11.
Result
[56]The appeal, so far as it relates to the sentence of home detention, is dismissed.
[57] The appeal, so far as it relates to the order for disqualification is allowed. The order is quashed on the basis that the District Court Judge did not have the jurisdiction to impose it.
[58]The appeal against the refusal of name of suppression is dismissed.
[59] The Judge granted bail pending appeal upon application by Ms Forbes’ counsel. This was likely granted under s 54 of the Bail Act 2000. The appeal has been dismissed, meaning s 80ZGD of the Sentencing Act applies. Under s 80ZGD(2), I need to specify a date for Ms Forbes to report to her probation officer (no earlier than 10 working days after the outcome of this appeal is determined) with the sentence of home detention resuming on the date of Ms Forbes reporting, as outlined in s 80ZGD(2)(c). I set that date as 14 November 2024.16
[60] There is a technical issue in that s 80ZGD(3) requires a probation officer to review the suitability of the proposed address before home detention resumes if the appellant has been on bail for over two months which counsel agree is the case here. I have also been advised by counsel for the Crown that his checks with probation indicate the same address is proposed and is suitable.
Harland J
Solicitors:
H V Bennett, Barrister, Christchurch Gresson Dorman & Co., Timaru.
16 This date has been calculated taking into consideration Canterbury Anniversary Day.
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