Forrest v R - [2010] NZCA 34

IN THE COURT OF APPEAL OF NEW ZEALAND
CA626/2009
[2010] NZCA 34
BETWEENBRENDON DOUGLAS FORREST
Appellant

ANDTHE QUEEN
Respondent

Hearing:16 February 2010

Court:Hammond, Panckhurst and Keane JJ
Counsel:Appellant in person
N P Chisnall for Respondent

Judgment:26 February 2010 at 12 noon

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
REASONS OF THE COURT
(Given by Panckhurst J)
Introduction
[1] The appellant was sentenced to 18 months’ imprisonment on each of two charges of perjury. These terms were made concurrent, but the 18 month sentence was made cumulative upon Mr Forrest’s existing prison sentence. In the result he is subject to a total term of imprisonment which will expire in May 2015.
[2] In representing himself on appeal Mr Forrest raised two essential grounds of appeal:
(a)that the effective term of 18 months’ imprisonment was clearly excessive on account of various considerations, and
(b)that the totality principle was not observed, with the result that the appellant’s total sentence is disproportionately long.

The offending
[3]        The appellant initiated a private prosecution against a former partner. Charges of threatening to kill and criminal nuisance were laid. In relation to the former the gist of the allegation was that the partner had written a letter to the accused dated 22 June 2005 which contained the relevant threat.
[4]        On 20 February 2007 the appellant gave evidence on oath at a preliminary hearing. At the conclusion of the hearing presided over by a District Court Judge a finding was made that there was insufficient evidence to warrant a committal for trial.
[5]        On 26 April 2007 the appellant relaid the charges. He asserted that additional evidence had been obtained, being fingerprint evidence from an expert which linked the offending letter to his former partner.
[6]        On 29 October 2007 the appellant again gave evidence under oath before the same District Court Judge. This was in support of an application that the Judge issue witness summonses for a further hearing. The appellant gave evidence in support of the application to the effect that a private investigator had obtained from the New Zealand police a fingerprint form pertaining to the partner, and delivered it to a fingerprint expert in Perth, Western Australia. The new evidence was said to establish that the appellant’s former partner was the author of the threatening letter. The Judge was unpersuaded that summonses should issue.
[7]        On 25 August 2008 the appellant wrote a letter to the Registrar of the District Court at which the two hearings had occurred. He purported to charge himself with perjury and in a summary of facts which was included with the letter he conceded that the letter of 22 June 2005 was a concoction of his making and that neither the private investigator nor the fingerprint expert existed.
[8]        The Judge who presided at the two hearings directed that the matter be investigated by the police. When interviewed, the appellant confirmed the confession already set out in the summary of facts he had sent to…

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 Forrest v R

Details

AGLC: Forrest v R [2010] NZCA 34
Case: [2010] NZCA 34
Decision Date: 26 February 2010

CaseChat Overview and Summary

The appellant, Brendon Douglas Forrest, appealed against the sentence imposed by the District Court. Forrest was sentenced to 18 months’ imprisonment on each of two charges of perjury, with the terms made concurrent but cumulative upon his existing prison sentence, resulting in a total term of imprisonment which will expire in May 2015. Forrest, representing himself on appeal, contended that the effective term of 18 months’ imprisonment was clearly excessive and that the totality principle was not observed, leading to a disproportionately long total sentence. The Court examined whether the starting point of three years’ imprisonment was excessive and whether the 50 per cent reduction made from that starting point was sufficient to recognise the pleas of guilty, the assistance provided to the authorities, and the appellant’s diminished responsibility. The Court held that the three year starting point was not excessive and that the reduction made was appropriate, resulting in a final sentence that was not wholly out of proportion to the gravity of the perjury offending. The Court dismissed the appeal against sentence.

Final Orders: The appeal against sentence is dismissed.

Orders