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Forde v The the Queen

Forde v The the Queen

Case [2022] NZHC 904 11 May 2022

Unconscionable Conduct

Res Judicata

Limitation Periods

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2022-412-000004

[2022] NZHC 904

BETWEEN
MARCUS BRIAN JAMES FORDE

Appellant

AND

THE QUEEN

Respondent

Hearing: 4 May 2022

Appearances:

J A Westgate for Appellant R D Smith for Crown

Judgment:

11 May 2022

JUDGMENT OF EATON J

This judgment was delivered by me on 11 May 2022 at 1:30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

FORDE v R [2022] NZHC 904 [11 May 2022]

Introduction

[1] Marcus Forde was sentenced1 to five years and two months’ imprisonment by Judge Robinson on charges of supplying methamphetamine,2 possessing methamphetamine for supply,3 unlawfully possessing a pistol,4 possessing cannabis for sale,5 unlawfully taking a motor vehicle,6 driving while prohibited,7 failing to stop in the aggravated form8 and refusing to supply a blood sample.9

Facts

[2] During the course of Operation Devil, an investigation run by the Southern District Organised Crime Squad into methamphetamine supply in the Southern District, Mr Forde and his partner, Ms Beckham, were identified as methamphetamine dealers who operated between Dunedin and Invercargill.

[3] Between 5 April and 5 May 2021, phone data obtained showed Ms Beckham offering to supply methamphetamine 11 times to a number of different associates. On 28 May, police began intercepting the telecommunications devices of Mr Forde and Ms Beckham. On 30 May, Mr Forde had a conversation with an unknown male where he discussed that he usually has “40, 50, 60k” a week to spend and that he usually makes 6 – 7 grand off an ounce.

[4] On 31 May, Ms Beckham gave Mr Forde $15,200 in cash. On 1 June 2021, Mr Forde and Ms Beckham travelled from Invercargill to Christchurch to source methamphetamine, arriving in Christchurch at approximately 7.20 am. Whilst in Christchurch, Ms Beckham contacted her mother and requested she transfer $5,000 into her dealers account, providing the name and account number. Her mother did so. Ms Beckham and Mr Forde returned to Invercargill on 3 June having sourced approximately two ounces (56 grams) of methamphetamine to distribute.

1      R v Forde [2022] NZDC 1373.
2      Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2); maximum penalty life imprisonment.
3      Misuse of Drugs Act, ss 6(1)(f) and 6(2); maximum penalty life imprisonment.
4      Arms Act 1983, s 45(1); maximum penalty four years’ imprisonment.
5      Misuse of Drugs Act, ss 6(1)(f) and 6(2); maximum penalty eight years’ imprisonment.
6      Crimes Act 1961, ss 219 and 223; maximum penalty seven years’ imprisonment.
7      Land Transport Act 1998, s 52(1)(c); maximum penalty $10,000 fine.
8      Land Transport Act, s 52A; maximum penalty three months’ imprisonment.
9      Land Transport Act, s 60(1)(a); maximum penalty three months’ imprisonment.

[5] On 13 June, Ms Beckham requested a further $5,000 in cash from her mother which she picked up from her address. On 14 June, Ms Beckham asked her mother to get $11,000 ready for her to pick up. Ms Beckham and Mr Forde subsequently…

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 904
Case: [2022] NZHC 904
Decision Date: 11 May 2022

CaseChat Overview and Summary

Marcus Forde appealed against his sentence for drug and driving offences. The appeal focused on the starting point for the methamphetamine supply and possession charges, the uplifts for firearm and driving offences, the uplift for previous convictions, and the discount for personal circumstances. The Crown accepted the sentence was “stern” but submitted it was within range. The appeal was allowed and a new sentence was imposed.

In arriving at the original sentence, the District Court Judge identified Mr Forde as the principal offender involved in the possession and supply of 98 grams of methamphetamine. The Judge found Mr Forde had directed Ms Beckham’s role in the operation by influence or intimidation. The Judge acknowledged Mr Forde’s drug addiction but found there was a clear commercial purpose to his offending—it went well beyond servicing any addiction. The Judge found Mr Forde’s methamphetamine offending fell within band 2 of the tariff decision Zhang v R, indicating a starting point between two and nine years’ imprisonment. A starting point of five years imprisonment was adopted, referring to several authorities. An uplift of 18 months was applied for the driving offences and 15 months for the firearm offence. That analysis resulted in an adjusted starting point of 93 months. Applying the totality principle, the starting point was reduced to one of 78 months’ imprisonment. The Judge uplifted the starting point by 15 per cent for previous convictions. The Judge considered a cultural report, the pre-sentence report and an alcohol and drug report. The Judge struggled to find a direct link between Mr Forde’s family and cultural circumstances and his offending, though acknowledged his addiction to methamphetamine with a credit of 10 per cent. After setting off the uplift for previous convictions against the discounts for Mr Forde’s guilty plea and addiction, a 20 per cent reduction was allowed from a starting point of 78 months. That resulted in an end sentence of five years and two months’ imprisonment (62 months). Mr Forde was also disqualified from driving for two years.

The High Court found the starting point of five years for the drug offending was within range. It found the uplift of 15 months for the firearm offence was excessive and that an uplift of six months was appropriate. The Court found an uplift of six months for previous convictions was appropriate. The Court found a discount of 10 per cent for personal circumstances was within range. From a global starting point of 78 months, the Court applied a total discount of 27 per cent. That left an end sentence of four years, nine months’ imprisonment. The sentence of five years and two months’ imprisonment was quashed, and a sentence of four years and nine months was substituted.

Orders