Forbes v The King - [2024] NZHC 3177

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…

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 Forbes v The King

Details

AGLC: Forbes v The King [2024] NZHC 3177
Case: [2024] NZHC 3177
Decision Date: 12 November 2024

CaseChat Overview and Summary

Lisa Marie Forbes appeals her sentence and the dismissal of her application for final name suppression. The appellant pleaded guilty to making a false statement to police and was sentenced to two months’ home detention, disqualified from holding or obtaining a driver’s licence for six months and her application for final name suppression was declined. The appellant appeals the sentence and the dismissal of her name suppression application. The grounds for the appeal are that the sentence of home detention was manifestly excessive and a lesser sentence should have been imposed; the Judge did not have all the relevant information for the name suppression application to be properly determined but it should not have been declined; and the disqualification order was wrong in law and the sentencing Judge erred in the exercise of his discretion when ordering it. An application for leave to adduce fresh evidence on appeal has also been filed. The Crown opposes the first and second grounds of appeal but accepts that there was no legal basis for the order for disqualification to be made and it should be quashed.

The Court found that, given the nature of the offending and the need for the purposes of denunciation and deterrence, the end sentence was not manifestly excessive. As to the application for final suppression of the appellant’s name, although the Court accepted the appellant will suffer hardship if her name is published, the evidence did not establish the kind of extreme hardship required to justify suppression. The appeal, so far as it relates to the sentence of home detention, is dismissed. The appeal, so far as it relates to the order for disqualification is allowed and the order is quashed. The appeal against the refusal of name suppression is dismissed. The sentence of home detention resumes on 14 November 2024.

Harland J

Orders