Forde v The the Queen
[2022] NZHC 2062
•19 August 2022
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 his arm around the victim’s throat from behind, starting to choke him. Mr Coffin then started punching the victim to his head, face and left side of his body. A struggle ensued, during which either Mr Forde or Mr Coffin said “grab it, get it”. The victim was unable to breathe at this time. Mr Coffin told the victim he had ripped off his mate. He stabbed the victim in the face with a knife or sharp object, causing a laceration below the victim’s eye. The victim managed to free himself and escaped to a nearby rest-home. Mr Forde and Mr Coffin left the scene, with Mr Forde driving his vehicle and Mr Coffin driving the victim’s. Mr Forde said there was no discussion but he assumed Mr Coffin would abandon the victim’s vehicle somewhere. He said the fight was over a gram of methamphetamine.
[8] At approximately 7 am, police attended a car fire on Puddle Alley near Mosgiel. Mr Forde said he followed Mr Coffin to that location where Mr Coffin said he was going to burn out the victim’s vehicle. Mr Forde said, “that’s a bit extreme isn’t it?”. Mr Coffin walked to the victim’s vehicle, ripped out the roof lining and set the vehicle alight with a gas torch. Mr Forde assisted Mr Coffin by remaining with him when Mr Coffin lit the victim’s vehicle and then acting as getaway driver for Mr Coffin. Both Mr Coffin and Mr Forde were located later that day by police.
[9] The victim received a 3-centimetre puncture wound below the left eye, requiring stitches, a split lip, swelling and bruising to the eye and his head. He had minor cuts to his head and bruising to the left side of his body and shoulder. On 27 July, the victim still had a sore head and neck and found it sore to swallow.
District Court decision
[10] The Judge noted Mr Forde was subject to the three strikes regime and, as a second strike offence, he would be required to serve any sentence on the wounding with intent charge without parole.7 He separated that sentence from the sentence on the other charges so as to prevent uplifts for the other charges increasing the sentence Mr Forde must serve without parole.
[11] On the wounding with intent charge, the Judge accepted there was no premeditation and Mr Forde did not know his co-offender had a weapon. However, there were multiple attackers, the victim was vulnerable and Mr Forde facilitated attacks to the head by holding the victim around the neck. The Judge determined this was category two offending, according to the guideline judgment of Nuku v R, and adopted a starting point of two and a half years’ imprisonment.8
[12] Turning to the arson charge, the Judge found an aggravating factor was that it was to destroy forensic evidence. He noted there is always a risk of a vegetation fire and risk to firefighters where such an arson occurs in a remote location. He referred to authority which suggested a 16-18 month starting point would be appropriate for a single offence of setting fire to a vehicle.9 The Judge noted Mr Forde had a lesser role in this offending, accepting he had only acted as getaway driver, so adopted a cumulative starting point of 12 months.
[13] For the possession of the pistol, the Judge noted the context which was that Mr Forde was taking it to his brother who was at that time evading police. The Judge referred to authorities suggesting a starting point of 18-30 months would be available for the firearm charge alone.10 He found a 12-month uplift was appropriate on a totality basis.
7 Sentencing Act 2002, s 86C(4).
8 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].
9 Gray v Police HC Wellington AP139/99, 27 July 1999.
10 Pue v R [2014] NZCA 273; and Torea [2011] NZCA 96.
[14] The Judge imposed a further 10 per cent uplift for Mr Forde’s previous convictions and the fact the offending occurred on bail and while he was subject to sentence.
[15] In terms of mitigating factors, the Judge accepted 25 per cent credit was appropriate for Mr Forde’s guilty plea. Ten per cent credit was afforded for addiction, which the Judge found was an underlying theme of his offending. Further credit of five per cent was granted for remorse and payment of reparation.
[16] That resulted in an end sentence of three years and two months’ imprisonment broken down as follows:
(a)on the charge of wounding with intent to injury, 21 months’ imprisonment;
(b)on the charge of arson, eight and a half months’ imprisonment cumulatively; and
(c)on the firearms charge, eight and a half months’ imprisonment cumulatively.
Principles on appeal
[17] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.11 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.12
11 Criminal Procedure Act 2011, ss 250(2) and 250(3).
12 Ripia v R [2011] NZCA 101 at [15].
Submissions
Appellant’s submissions
[18] Ms Saunderson-Warner, for Mr Forde, advanced a focused appeal. No issue was taken with the starting point on the wounding with intent to injure charge. Instead, she took issue with the starting point for the other two charges and the uplift for personal aggravating factors.
[19] She submitted the uplift for the arson charge was excessive. It was accepted that Mr Forde’s co-offender was the principal offender on this charge, but she noted he was not held liable for it as the arson charge against him was subsequently withdrawn. She submitted it offends against the parity principle in s 8(e) of the Sentencing Act 2002 for Mr Forde to be held accountable by 12-month uplift where the principal offender escapes liability entirely. In any event, she submitted Mr Forde’s culpability is extremely low, and is essentially limited to driving away after his co-offender had set the car alight. She referred to R v Campbell, where the defendant was described as “at least a party” to arson of a vehicle following an aggravated robbery and where he received a six month uplift on the aggravated robbery sentence for the theft of the vehicle and arson. In her submission, the appellant in this case is less culpable, and the uplift should have been no more than three months’ imprisonment.13
[20] Ms Saunderson-Warner also submitted the uplift for possession of the pistol was excessive. She referred to this Court’s recent decision in the sentence appeal of Mr Forde’s brother, Marcus Forde and the authority cited therein.14 She submitted this decision indicated an uplift of 12 months was at the top of the range for possession of a pistol and submitted the uplift here should be something less because Mr Forde’s possession was only temporary, and the pistol did not contain live ammunition but blanks.
13 R v Campbell HC Napier CRI-2009-069-2003, 15 December 2010.
14 R v Forde [2022] NZHC 904.
[21] Ms Saunderson-Warner submitted no uplift was necessary for personal aggravating factors having regard to the fact Mr Forde is required to serve his sentence without the possibility of parole. In Wipa v R, the Court of Appeal concluded that:15
… [W]hen considering an uplift for previous convictions, or for offending while on bail or subject to sentence, the court should decide whether, having regard to the loss of parole under s 86C, an uplift is needed to achieve the sentencing purposes of denunciation, accountability, deterrence and community protection.
Respondent’s submissions
[22] Mr Bates, for the Crown, submitted the Judge’s uplift for the arson charge was within range and adequately considered Mr Forde’s lesser role. The 12 month sentence was less than in both R v Mohi,16 and Police v Gray,17 which appropriately reflected Mr Forde’s lesser role.
[23] Mr Bates submitted the uplift for possession of the pistol was appropriate having regard to the authorities the Judge cited. He distinguished the cases referred to by Ms Saunderson-Warner as cases involving lengthy sentences of imprisonment for serious drug offending and, by implication, not requiring high uplifts because of totality considerations. He suggested a higher uplift was appropriate here. Mr Bates argued the possession was aggravated by the fact the pistol was loaded, and it did not matter that it was loaded with blanks rather than live ammunition. The firearm could still have a significant effect on victims, police or members of the public.
[24] Mr Bates maintained the 10 per cent uplift for personal aggravating factors was justified on the basis Mr Forde’s offending occurred while he was subject to sentence and the July offending while he was on bail. This alone warranted an uplift and no reliance on an uplift for previous convictions was necessary.
Analysis
[25]I first consider the cumulative sentence for the arson charge.
15 Wipa v R [2018] NZCA 219 at [36].
16 R v Mohi [2007] NZCA 139.
17 Police v Gray, above n 9.
[26] I do not accept Ms Saunderson-Warner’s argument that it offends against the parity principle for Mr Forde to be sentenced according to his culpability where the charges against his co-offender have been withdrawn. It is inevitable that parity cannot be achieved in such cases. The question is whether a cumulative sentence of 12 months appropriately reflected Mr Forde’s culpability and accounted for the totality principle.
[27] Mr Forde’s role in the arson was minor. It was accepted by the Crown he did not anticipate the car would be torched and there was no premeditation. He also made an initial protest at his co-offender’s decision to torch the car. His culpability is limited to encouragement by lack of continued protest and driving Mr Coffin away following the arson. The case referred to by the Crown at sentencing, R v Mohi, involved the offender settling alight two vehicles with clear premeditation, one of which was completely destroyed.18 A starting point of 30 months was considered appropriate by the Court of Appeal. Mr Forde’s offending was considerably less serious.
[28] Similarly, the case of Gray v Police, referred to by the Judge, involved the principal offender setting fire to an ex-partner’s car with premeditation and then attempting to commit a similar arson against his next ex-partner. A starting point of two years and three months was adopted. The Judge referred to the Court’s comment that a starting point of 16-18 months was the appropriate sentencing range for a single offence of deliberately setting fire to a car.19 The Court also noted the offender’s associate, who drove them to and from the arson location, was charged with being an accessory and received a “nominal” sentence. Mr Forde’s culpability here appears closer to that of the offender’s accessory in Gray rather than the principal offender. However, I must be mindful that Mr Forde has been convicted as a party to the charge, not as an accessory, and the offence carries a maximum penalty of 14 years’ imprisonment.
[29] The case of R v Campbell, referred to by Ms Saunderson-Warner, is of some limited assistance. There, the offender was “at least a party” to setting a stolen vehicle alight following an aggravated robbery. An uplift of six months was adopted for the
18 R v Mohi, above n 16.
19 Gray v Police, above n 9.
charges of theft and arson on a sentence of nine and a half years for the aggravated robbery.20 However, I also accept that this was likely a very modest uplift given the lengthy sentence imposed on the most serious charge. In my view, having regard to the totality principle21 and Mr Forde’s limited role in the offending, the cumulative starting point of 12 months was too high and a cumulative starting point of six months was appropriate.
[30] I next turn to the cumulative sentence for the firearm charge. The Judge referred to Pue v R and Torea v R in support of the 12-month cumulative starting point for the firearms offending.22 Torea involved the possession of a loaded pistol with the safety catch disengaged while awaiting the arrival of police. Mr Torea was a long-standing patched member of Black Power, holding the role of Sergeant at Arms. He had a history of both firearms and violent offending. A starting point of two years and six months was adopted. This offending is distinguishable because of the gang overtones, the fact the weapon was ready for use and because the Judge had to consider totality across multiple charges here.
[31] Pue involved a 12-month uplift for possession of a loaded pistol available for use in the course of offending where the offender, Mr Ryder (a party to the possession charge), had previous convictions for firearms offending. Mr Pue faced a starting point of 18 months’ imprisonment for the possession of the same pistol, the only charge on which he was sentenced. This case is broadly supportive of the Judge’s approach, though Mr Forde’s offending was, in my view, less serious than that of Mr Ryder.
[32] The cases referred to by Ms Saunderson-Warner; Harris v R and Forde v R, indicate a 12-month uplift was at the top of an available range. In Harris v R, the Court of Appeal did not disturb a Judge’s uplift of six months for possession of a pistol loaded with live ammunition.23 In a footnote, the Court of Appeal commented:
20 R v Campbell, above n 13.
21 Haywood v R [2015] NZCA 551 at [11].
22 Pue v R, above n 10; and Torea v R, above n 10.
23 Harris v R [2021] NZCA 143 at [22].
Compare with Mills v R [2016] NZCA 245 at [18], where this Court refers to uplifts of 12 to 18 months for firearms offending associated with drug dealing. We note, however, that the appropriate uplift depends on the circumstances and a number of cases have involved uplifts of six months: see for example Tuuta v R [2019] NZHC 2799 at [30]; and R v Smith [2018] NZHC 2188 at
[22].
[33] In Forde v R, this court recently said an uplift of six to 12 months was appropriate to recognise Marcus Forde’s role in the possession of the same pistol (although the 18 month global uplift was not adjusted as the end sentence was not excessive).24 However, as Mr Bates has appropriately observed, these cases were decided in the context of more serious drug dealing offending with lengthy sentences of imprisonment.
[34] In my view, a cumulative sentence within the range of 6 – 12 months was appropriate here. It was concerning that Mr Forde agreed to deliver the pistol despite being aware his brother was involved in actively evading police and dealing methamphetamine. I agree with Mr Bates that a loaded pistol should be treated more sternly than an unloaded one. However, I do not consider much distinction should be drawn between a pistol which is loaded with blanks as opposed to live ammunition. Blank cartridges generate a muzzle flash and gunshot sound so may be used to intimidate or coerce. A blank cartridge may still be dangerous at close range, albeit not as dangerous as live ammunition. Consequently, while a lower uplift could have been adopted, I recognise the Judge’s uplift of 12 months was within the available range.
[35] The Judge uplifted the sentence by 10 per cent for Mr Forde’s previous convictions and the fact his offending occurred while on bail and subject to sentence. In my view, this was open to the Judge. I do not consider the fact Mr Forde is required to serve his sentence on the wounding with intent to injure charge without the possibility of parole meant an uplift should not have been imposed. The appellant’s suggestion that the totality of his sentence must be served without parole is incorrect. In Paerau v R, the Court held that the principle in s 75(1)(c) of the Sentencing Act that cumulative sentences form a single notional sentence did not operate to apply the prohibition on parole on a second strike offence to the other sentences for non-strike
24 Forde v R, above n 14.
offences.25 For this reason, judges should, as the Judge did here, structure the sentence to separate out the second strike offence from the non-strike offence.26
[36] Furthermore, as Wipa confirmed, the loss of parole under s 86C does not preclude an uplift being imposed, although it is a matter to take into account when deciding whether an uplift is required. Here, as Mr Bates observed, the fact the July offending occurred while Mr Forde was on bail for the June offending was a serious aggravating factor. So was the fact both sets of offending occurred while Mr Forde was subject to sentence. These are discrete heads of aggravation that reflect a disregard for court processes.27 A modest 10 per cent uplift (amounting to three months on the Judge’s starting point) was justified on this basis.
Conclusion
[37] On my analysis, the cumulative starting point for the arson charge should be six months rather than 12. If that sentence is then uplifted by 10 per cent for Mr Forde’s personal aggravating factors and discounted by 40 per cent for his personal mitigating factors, a cumulative end sentence of four months’ imprisonment on this charge is reached with favourable rounding.
[38]His sentence would be as follows:
(a)on the charge of wounding with intent, 21 months’ imprisonment;
(b)on the charge of arson, four months’ imprisonment cumulative; and
(c)on the firearms charge, eight and a half months’ imprisonment cumulative.
For the avoidance of doubt, and because it was not expressly stated in the Judge’s sentence, I order that pursuant to s 86C(4) of the Sentencing Act, the appellant must
25 Paerau v R [2018] NZCA 139 at [37] to [41].
26 Wipa v R, above n 15.
27 Sentencing Act 2002, s 9(1)(c); and Clunie v R [2013] NZCA 110 at [22].
serve the full term of his sentence on the charge of wounding with intent and that he not be released before the expiry of that sentence.
[39] That change would result in an end sentence of two years and nine and a half months’ imprisonment. In my view, a reduction of four and a half months, some 12 per cent, is sufficient to justify a finding the Judge’s sentence was manifestly excessive.
[40] The appeal is allowed. The sentence on the charge of arson is quashed. The appellant is resentenced as set out in [38] above.
Solicitors:
RPB Law, Dunedin
Copy To:
S A Saunderson-Warner, Barrister, Dunedin