Forde v The the Queen - [2022] NZHC 2062

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2022-412-9

CRI-2022-412-10 [2022] NZHC 2062

BETWEEN
JACOB JAMES FORDE

Appellant

AND

REGINA

Respondent

Hearing: 16 August 2022 (By way of VMR)

Appearances:

S A Saunderson-Warner for Appellant R P Bates for Respondent

Judgment:

19 August 2022

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 19 August 2022 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

FORDE v REGINA [2022] NZHC 2062 [19 August 2022]

Introduction

[1] Jacob Forde was sentenced to three years and two months’ imprisonment on one charge each of wounding with intent to injure,1 arson with intent to cause loss,2 possessing methamphetamine,3 possessing utensils4 and possessing a firearm5 by Judge Robinson.6

[2] Mr Forde appeals. He says excessive uplifts were imposed for the arson and firearm charges and for his personal aggravating factors.

Background facts

[3] Mr Forde’s brother Marcus Forde was the target of Operation Devil, an investigation run by the Southern District Organised Crime Squad into methamphetamine supply in the Southern District. At approximately 1.00 pm on 14 June 2021, Marcus was driving from Invercargill to Dunedin, with his partner, to source methamphetamine. He rolled his vehicle and then stole the vehicle of a member of the public who had stopped to assist him. He later dumped the stolen vehicle on his journey to Dunedin and contacted Mr Forde to assist them by picking them up. He also asked Mr Forde to collect his pistol, which Marcus had left at his mother’s home.

[4] Mr Forde picked up Marcus, who then drove him, Marcus’ associate and Marcus’ partner back to Dunedin. Marcus stopped at a dairy, and Mr Forde remained in the vehicle. Armed police executed a search warrant on the vehicle. The 9 mm pistol with blank rounds of ammunition was located, as was a methamphetamine pipe in a bag Mr Forde carried. 0.73 grams of methamphetamine were located in Mr Forde’s underpants.

[5]Mr Forde was released on bail on those charges on 15 June 2021.

1      Crimes Act 1961, ss 66 and 188(2); maximum penalty seven years’ imprisonment.
2      Crimes Act, ss 66 and 267(1)(c); maximum penalty 14 years’ imprisonment.
3      Misuse of Drugs Act 1975, s 7(1)(a) and (2); maximum penalty six months’ imprisonment.
4      Misuse of Drugs Act, s 13(1)(a) and (3); maximum penalty one years’ imprisonment.
5      Arms Act 1983, s 45(1); maximum penalty four years’ imprisonment.
6      R v Forde [2022] NZDC 3830.

[6] In the early hours of 16 July 2021, Mr Forde, his co-offender Mr Coffin, and the victim arranged to meet and smoke methamphetamine. They met at a KFC in North Dunedin. The victim drove his own vehicle while Mr Forde and Mr Coffin travelled together. They smoked methamphetamine together at the KFC before travelling to Woodhaugh Gardens in North Dunedin. Mr Forde and Mr Coffin joined the victim in his vehicle.

[7] At one point, Mr Forde put…

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 Forde v The the Queen

Details

AGLC: Forde v The the Queen [2022] NZHC 2062
Case: [2022] NZHC 2062
Decision Date: 19 August 2022

CaseChat Overview and Summary

Jacob Forde appeals his sentence on various charges, including wounding with intent, arson, and firearm possession. The appeal focuses on the excessiveness of the uplifts imposed for the arson and firearm charges, as well as the personal aggravating factors. The case was heard in the High Court of New Zealand, Dunedin Registry. Forde was sentenced to three years and two months’ imprisonment by Judge Robinson. The appellant’s counsel argues that the uplifts for the arson and firearm charges were excessive, and that no uplift for personal aggravating factors was necessary.

The court first considers the cumulative sentence for the arson charge. The court finds that while Forde's role in the arson was minor, the cumulative starting point of 12 months was too high. Instead, the court determines a cumulative starting point of six months was appropriate. Regarding the firearm charge, the court acknowledges that a loaded pistol should be treated more sternly, but does not consider much distinction between a pistol loaded with blanks or live ammunition. The court concludes that the Judge's uplift of 12 months was within the available range.

The court then examines the uplift for personal aggravating factors. The court finds that the 10% uplift for Forde's previous convictions and the fact that the offending occurred while on bail and subject to sentence was justified. The court notes that the loss of parole under s 86C does not preclude an uplift being imposed, but it is a matter to take into account when deciding whether an uplift is required.

The court concludes that the cumulative starting point for the arson charge should be six months rather than 12, and that a reduction of four and a half months is sufficient to justify a finding the Judge's sentence was manifestly excessive. The appeal is allowed, and Forde is resentenced to two years and nine and a half months' imprisonment.

Orders