Forde v The the Queen
[2022] NZHC 904
•11 May 2022
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 took this money and travelled north to Dunedin to source methamphetamine.
[6] At approximately 10:30 am on 9 June 2021, Mr Forde drove from Invercargill to Dunedin. A driving complaint was logged by a member of the public who stated his vehicle had crossed the centre line in excess of 12 times. As Mr Forde approached Allanton, a police patrol observed his vehicle swerving across the centre line and turned their lights on in an attempt to stop him. Mr Forde slowed and pulled to the left side of the road before making a U-turn and accelerating heavily before overtaking two vehicles. He drove to his home address in Dunedin where he left the vehicle. He rode his Harley Davidson motorcycle back into Dunedin city.
[7] At approximately 5:30 pm, a police constable observed Mr Forde on his motorbike, swerving side to side within his lane on King Edward Street, Dunedin. Lights and sirens were activated but Mr Forde accelerated aggressively and failed to stop, continuing to pass traffic in front of him.
[8] At approximately 5:45 pm, a police dog handler observed Mr Forde travelling north on the same street. The dog handler activated his vehicle’s lights and sirens. Mr Forde again accelerated and failed to stop, evading police.
[9] On 14 June at approximately 1:00 pm, while driving to Dunedin to source methamphetamine, Mr Forde veered off the road and rolled before coming to rest in a ditch. A good Samaritan observed the crashed vehicle and stopped to assist Mr Forde and Ms Beckham. They rang emergency services and, whilst on the call, Mr Forde ran towards their car yelling at Ms Beckham to come follow. Mr Forde got into the driver’s seat, and Ms Beckham into the passenger seat, and they drove the victim’s vehicle away.
[10] Mr Forde drove the vehicle to an associate’s address where they dumped the stolen vehicle before being picked up by Mr Forde’s brother and another associate.
The four continued north to Dunedin with Mr Forde driving. They were stopped by armed police where they were arrested without incident.
[11] When searched, Mr Forde had 1.5 ounces (42 grams) of methamphetamine tucked into the top of his underwear. This had a street value of approximately $18,000. A modified operational 9 mm pistol with blank rounds of ammunition was located in a bag carried by the defendant’s brother. $32,500 cash was found inside the vehicle. Four ounces of cannabis and a set of scales were located in four separate bags within the vehicle.
[12] Mr Forde underwent a compulsory impairment test at Dunedin Central Station, which he failed. He refused a blood sample requested under s 60 of the Land Transport Act 1998. Mr Forde had previously been forbidden to drive and did not hold a current driver or motorcycle licence. A search warrant at Ms Beckham’s address uncovered a further $9,075 in cash.
[13] Mr Forde admitted possession of the methamphetamine. He admitted the pistol was his and that he had it for protection. He admitted ownership of the cash located in the vehicle. Ms Beckham admitted selling methamphetamine to associates. She admitted she would source methamphetamine and that she would generally sell a gram for $500.
District Court decision
[14] Judge Robinson had previously given a considered sentence indication as to the global starting point which was accepted by Mr Forde. Mr Forde was identified 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.10 A starting point of five years imprisonment was adopted, referring to several authorities.11
[15] In considering an uplift for the driving offending, the Judge found the authorities indicate a single instance of unlawful taking of a motor vehicle can warrant 12 to 18 months’ imprisonment.12 Generally a starting point of 12 months is adopted where a vehicle is taken with the intention of travelling a distance.13 Having regard to the totality of the driving matters, an uplift of 18 months was applied.
[16] With reference to R v Richardson and R v Faifua,14 where the Court of Appeal emphasised their condemnation of firearm possession in conjunction with drug offending, the Judge considered an uplift of 15 months’ imprisonment for the firearm offence.
[17] That analysis resulted in a an adjusted starting point of 93 months. Applying the totality principle, the starting point was reduced to one of 78 months’ imprisonment.
[18] The Judge considered Mr Forde’s offending had continued unabated despite imprisonment totalling nine years since 2011 and uplifted the starting point by 15 per cent for previous convictions.
[19] The Judge indicated a 25 per cent guilty plea discount would be available and that there was the potential for further discounts for addiction.
[20] At sentencing proper, 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.
10 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [19].
11 Hopwood v R [2011] NZCA 352; R v Brewis HC Auckland CRI-2009-090-6454, CRI-2009-090- 6378, CRI-2009-090-11212, 15 December 2009; Wineera v R [2021] NZHC 900; Whiteford v R [2020] NZCA 130; and Griffin v R [2020] NZHC 548.
12 Curle v Police [2017] NZHC 1194.
13 Gideon v Police [2014] NZHC 1065.
14 R v Richardson CA450/02, 25 March 2003; and R v Faifua CA287/05, 27 March 2006.
[21] 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.
Principles on appeal
[22] 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 only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.15 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.16 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.17
Submissions
Appellant’s submissions
[23] Mr Westgate, for Mr Forde, submitted the overall starting point of 78 months (six years and six months’ imprisonment) was excessive, taking particular issue with the starting point of five years adopted for the methamphetamine offending.
[24] Mr Westgate also challenged the uplift for the possession of the pistol, submitting, with reference to analogous cases, an uplift of six months should have been imposed instead of the 15 months adopted by the Judge.
15 Criminal Procedure Act 2011, ss 250(2) and 250(3).
16 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
17 Ripia v R [2011] NZCA 101 at [15].
[25] Mr Westgate submitted the appropriate starting point for the driving offending was 15 months’ imprisonment and, with an allowance for totality, the uplift should have been in the region of 10 months’ imprisonment.
[26] Overall, Mr Westgate submitted a starting point of five years and four months’ imprisonment was appropriate (64 months) comprising:
(a)four years’ imprisonment for the drugs offending;
(b)a six-month uplift for the possession of a pistol; and
(c)a ten-month uplift for the driving charges.
[27] Mr Westgate also challenged the uplift for previous convictions. He submitted the need to address Mr Forde’s risk of re-offending was met by the long prison sentence with appropriate drug rehabilitation and the Court should be cautious in applying an uplift for previous convictions in a case of drug offending by a drug addict. He submitted a 10 per cent uplift (amounting to about six months) would have been more appropriate than the 15 per cent uplift (about 12 months) imposed by the Judge.
[28] Finally, Mr Westgate submitted the Judge failed to give appropriate discounts for Mr Forde’s personal mitigating factors including entrenched addiction and his upbringing and mental health issues. In total he submitted these matters warranted a 20 per cent discount.
Respondent’s submissions
[29] Mr Smith, for the Crown, submitted the overall starting point was within range considering the generous totality discount from 93 months to 78 months, a discount of more than 16 per cent. He submitted the starting point of five years for the drug offending was within range, and the effective uplift of 18 months for further serious offending did not render the starting point manifestly excessive.
[30] Mr Smith acknowledged the Crown had proposed an uplift of six months for previous convictions. He submitted an uplift of 15 per cent (about 12 months) might
be seen as within range but maintained the position that a six month uplift was appropriate. Mr Smith submitted the impact of Mr Forde’s addiction is properly considered in the context of his personal mitigating factors rather than when considering an uplift for previous convictions.
[31] As to addiction and matters raised in the cultural report, Mr Smith accepted Mr Forde was addicted to methamphetamine but submitted it was not the sole or necessarily primary cause of the offending. He submitted the discount of 10 per cent afforded was appropriate. He maintained Mr Forde has had repeated opportunities to address his addiction issues as part of rehabilitative components of sentences previous imposed.
[32] The Crown also seeks forfeiture of the $32,500.00 cash found within Mr Forde’s person and an order for the destruction of the firearm. Mr Smith explains these matters were overlooked by the prosecution at sentencing.
Analysis
Starting point drug offending
[33] The first issue is whether the overall starting point of 78 months’ imprisonment adopted by the Judge was excessive. Mr Westgate’s challenges to each element of the starting point must be considered in light of the discount for totality applied by the Judge.
[34] The lead offending was band two offending under Zhang, attracting a starting point between two and nine years’ imprisonment.18 Mr Westgate relied on Harris v R and Griffin v R to support his submission the starting point of five years’ the Judge adopted for this offending was excessive.19
[35] In Griffin v R, the offender was found in possession of 37 grams of methamphetamine, various firearms and ammunition, $38,215 in cash, cannabis material, a tick list, electronic scales and numerous “point” bags. Text messages
18 Zhang v R, above n 10.
19 Harris v R [2021] NZCA 143; and Griffin v R [2020] NZHC 548.
indicated supply transactions to 18 individuals, with five of the transactions involving the supply of three grams. The starting point of four years adopted at sentencing was replaced with a starting point of three years and six months on appeal due to issues of parity between co-offenders.
[36] In Harris v R, the offender was sentenced on two tranches of offending. In the first, she possessed 97.646 grams of methamphetamine for supply, GBL (“fantasy”), cocaine, heroin, a stun taser, a tick book and $1,798 in cash. In the second, some 19 months later, police found her in a sleep-out (she had removed an EM bracelet and absconded) where they located items used to manufacture methamphetamine. There was also 51.5 grams of methamphetamine, a safe containing a loaded pistol and nearly 100 rounds of ammunition. The Court of Appeal accepted her role was at the “lower end of significant”, though noting she had her own operation and some of what she produced was intended to be sold. The Court of Appeal also considered her addiction, noting there was a degree of commerciality “albeit driven by [her] addiction”. An overall starting point of six years’ imprisonment was adopted on appeal after totality (including an uplift of six months for the possession of the pistol and ammunition), but a starting point of four years was adopted without totality for the first tranche.
[37] When distinguishing Griffin in Harris, the Court of Appeal referred to the greater amount of money involved there as indicating a greater degree of commerciality.20
[38] The Crown here distinguished Harris on the basis Mr Forde’s offending involved a greater degree of commerciality, referring to the far greater quantities of cash found and the involvement of his partner, who he influenced by intimidation. Griffin was distinguished by reference to the scale of the commercial operation (37 grams of methamphetamine compared to 98 grams).
[39] Mr Westgate characterised Mr Forde’s actions as driven by addiction, and submitted any commerciality stemmed from that starting point. He emphasised the similarities to Harris: the quantity of methamphetamine and the fact both offenders had their own operations with a degree of commerciality.
20 At [20].
[40] The Judge, in his sentence indication, had determined Mr Forde’s offending went well beyond servicing an addiction. At sentencing the Judge concluded the drug offending was predominantly a commercial operation, although in part feeding addiction.
[41] In response to a Crown submission that addiction should only be relevant where it is causative of the offending the Court of Appeal in Zhang said:21
We also accept that commercial dealing is likely to be inconsistent with the impairment of the ability to exercise rational choice, which is what diminishes culpability and justifies discounting the sentence. But we would not exclude the possibility of a case in which that impairment co-exists with more substantial offending.
[42] I agree this offending might be seen as one where the impairment of addiction features alongside commercially motivated offending. But having regard to the combination of a higher quantity of methamphetamine, a large amount of cash, alongside the fact Ms Beckham was acting under Mr Forde’s direction, I am not persuaded the Judge fell into error. Those factors point to a commercially motivated operation and to offending at a higher level of culpability than in Griffin or in the first tranche in Harris.
[43] I also reviewed the other decisions considered by the Judge in setting the starting point: R v Brewis,22 Whiteford v R23 and Hopwood v R.24 None of those cases provided further basis to challenge the starting point adopted.
[44] I am satisfied the starting point of five years adopted by the Judge was within range.
Uplifts for firearm and driving offending
[45] I agree an uplift of 15 months’ imprisonment for possession of the pistol (loaded with blanks) was excessive in light of the cases referred to by Mr Westgate.25
21 Zhang v R, above n 10 at [147].
22 R v Brewis, above n 11.
23 Whiteford v R, above n 11.
24 Hopwood v R, above n 11.
25 Harris v R, above n 19; and R v Taui [2021] NZHC 2123.
[46] In a footnote to the Harris decision, where an uplift of six months was not disturbed for possession of a pistol loaded with live ammunition, the Court of Appeal commented:26
Compare with Mills v R [2016] NZCA 245 at [18], where [the Court of Appeal] 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].
[47] This indicates the available range in this case was six to 12 months, without deciding whether a pistol loaded with blanks ought to attract a lower uplift than a pistol loaded with live ammunition. Cases with higher uplifts have tended to involve multiple firearms.27
[48]I do not accept the Judge erred in fixing the uplift for the driving offending.
Global starting point
[49] Importantly, the Judge applied the principle of totality and reduced the starting point by 18 months (approximately 16 per cent) to one of 78 months. As the Crown has identified, the effective uplift for the balance of Mr Forde’s offending (the firearms and driving charges) was 18 months given the Judge’s appropriate starting point for the lead offending and the totality discount. That total uplift cannot be regarded as excessive, and it would be artificial to analyse the sentencing on the basis the Judge had imposed uplifts of 15 months for the firearms offending and 18 months for the driving offending (before totality was considered). Mr Westgate argued for a total uplift of 16 months. That confirms the appropriateness of an uplift in the vicinity of 18 months.
[50]I am satisfied the overall starting point was appropriate.
26 Harris v R, above n 19, at fn 19.
27 See, for example, Joyce v R [2020] NZCA 124.
Uplift for previous convictions
[51] Mr Forde has previous drug dealing and driving convictions that had led to a sentence of four years, ten months’ imprisonment in 2015 and a sentence of four years’ imprisonment in 2011. He had also been sentenced to 14 months’ imprisonment for cannabis offending in 2008. Further, he has previous convictions for dangerous and reckless driving under the influence (including while evading police). It was open to, and appropriate for, the Judge to impose an uplift to recognise that history.
[52] The Crown had proposed an uplift of six months on a starting point of 90 to 102 months. The Judge considered an uplift of 15 per cent or nearly 12 months’ imprisonment on a starting point of 78 months was appropriate to achieve the sentencing principle of deterrence.
[53] I accept Mr Forde’s criminal history bears a strong correlation to his drug addiction. In Zhang the Court of Appeal recognised that addiction might diminish the culpability of an offender in that, as with mental impairment, the offending might not represent willed conduct. The relevance of personal deterrence may be diminished when sentencing an offender for drug offending directly related to drug addiction if the addiction impacts on the will of the offender.
[54] I am also conscious that an offender’s motivation to address offending related addiction will likely be at its highest at the time of sentencing. Mr Forde and Ms Beckham have a child now aged six months. The Alcohol and Drug report records Mr Forde’s acknowledgement his life had spiralled out of control and his plea for help. Rehabilitative considerations may be relevant to the proportionality exercise when fixing the level of any uplift for previous convictions. Genuine motivation to rehabilitate should be encouraged and provide a further basis to temper the level of uplift for previous convictions.
[55] Mr Smith accepted the 12 month uplift was stern and did not resile from the submission that a six month uplift was appropriate. Mr Westgate contended an uplift of no more than six months.
[56] I acknowledge the uplift imposed reflected not only Mr Forde’s drug offending but his shocking driving offending. Mr Forde has a history littered with other driving offences. Nevertheless, I do find that an uplift 15 per cent (12 months) was excessive and that an uplift of six months was appropriate.
Personal circumstances
[57] Finally, Mr Westgate submitted greater credit should have been afforded for Mr Forde’s personal mitigating factors. The Judge allowed a discount of 10 per cent for addiction and family circumstances but found it difficult to “find a direct link between [Mr Forde’s] family and cultural circumstances and the offending”. The Judge found the stronger link was to associates rather than Mr Forde’s home environment. Did Mr Forde’s personal circumstances justify a greater discount? Mr Smith submitted that whilst a greater discount was available, a global discount of 10 per cent was within range.
[58] A cultural report was provided under s 27 of the Sentencing Act 2002. That report in this case does provide some explanation as to how Mr Forde came to be involved in gangs and criminal offending. The report recorded that Mr Forde’s parents were extremely hard workers who now reflect they wish they had spent more time with their sons. Mr Forde was described as “very defiant, having an awful bad temper, swearing, and using bad language, disruptive and very, very angry for most of his childhood and adolescence”. The family recognised that Mr Forde had grown up rebellious and resentful towards his parents because they were always working and away from the family home. They attributed Mr Forde’s acting out and subsequent association with negative influences to these feelings.
[59] Mr Forde described finding school difficult because he struggled to concentrate and pay attention to the teacher and that, as one of the only “white boys” at school, he was often teased and bullied. He recalled spending four to five days a week separated from class in a small room external to the classroom by himself. Ultimately, he was expelled from his first and second primary schools before being expelled from Central Southland College and beginning work at a sawmill.
[60] Mr Forde’s father had friends and family associated with different gangs. Growing up, the gang culture was familiar to Mr Forde who described wanting the “gangsta lifestyle” he had witnessed with some of his associates in adolescence. Many of these influences were involved in the Outlaw motorcycle club Mr Forde eventually joined. Once Mr Forde began work at the sawmill, he became financially independent and moved away from the family home to begin his life among gang associates. He was expelled from the gang and a subsequent one for his methamphetamine use. The report refers to a 2009 diagnosis of an Adjustment Disorder and to limited coping strategies, a deficit in social skills and to Mr Forde coping by “numbing” himself with illicit drug use.
[61] I accept the present offending, alongside Mr Forde’s previous history, has a connection to his sense of resentment and dislocation towards family (and other prosocial influences) which led to his association with negative influences and eventual spiral into a gang lifestyle. This is consistent with the pre-sentence report which identified Mr Forde’s associates as an offending related factor. I do not consider Mr Forde’s age or criminal history should extinguish the availability of credit for these matters because it is apparent he has become highly institutionalised having spent the vast majority of the last 15 years in prison.
[62] But I am not persuaded the connection or nexus of Mr Forde’s background to this offending does significantly diminish his culpability given the commercial nature of the current offending. Another judge might have considered an additional modest credit was available, however, I consider a global discount of 10 per cent for addiction and personal circumstances was within range.
Conclusion
[63] I allow the appeal. From a global starting point of 78 months, I apply a total discount of 27 per cent (25 per cent for the guilty pleas, 10 per cent for personal factors outlined in the various reports and an eight per cent uplift for previous convictions). That leaves an end sentence of four years, nine months’ imprisonment.
[64] The sentence of five years and two months’ imprisonment is quashed, and a sentence of four years and nine months is substituted.
Further orders
[65] Mr Smith sought orders for the destruction of the pistol and for the forfeiture of the $32,500.00 found within the vehicle. Through oversight those orders were not sought at sentencing. Mr Smith referred to a memorandum filed by counsel for Ms Beckham consenting to the forfeiture of the monies. Mr Westgate confirmed Mr Forde does not oppose the orders sought. Accordingly, I make an order for the destruction of the pistol and a further order forfeiting the $32,500.00 to the Crown.28
Observation
[66] Mr Forde entered his guilty pleas following acceptance of a sentence indication. That indication focused on the global starting point. On appeal, Mr Forde has mounted distinct challenges to the starting point. Whilst this does not present a jurisdictional obstacle, I am concerned that sentence indications might be accepted at a time it is likely that indication will be challenged on appeal. In those circumstances the appropriate process is for the sentence indication to be declined and then guilty pleas entered. This avoids potential complications including the factual basis of the offending which is agreed for the purposes of a sentence indication.
...................................................
Eaton J
Solicitors:
Crown Law Office, Dunedin
Copy to:
John Westgate, Barrister, Dunedin
28 Misuse of Drugs Act 1975, s 32
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