Forsyth v Police - [2013] NZHC 139

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-485-114 [2013] NZHC 139

JOHN WILLIAM FORSYTH
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 29 January 2013

Counsel: M Robinson for Appellant
A J Ewing for Respondent

Judgment: 29 January 2013

ORAL JUDGMENT OF RONALD YOUNG J

[1] Mr Forsyth pleaded guilty to two charges of breach of prison release conditions on 2 November 2012. The District Court Judge imposed an eight month’ sentence of imprisonment on 16 November 2012 and post release conditions extending six months beyond the sentence date.

[2] This appeal against sentence is on the basis that the sentence was manifestly excessive when taking into account the combination of the term of imprisonment and that additional release conditions especially the prohibition on associating with the complainant and the requirement to attend an anti violence course which are said to
be unnecessary and inappropriate.

JOHN WILLIAM FORSYTH V NEW ZEALAND POLICE HC WN CRI 2012-485-114 [29 January 2013]

[3] The appeal should have been filed within 28 days of the date of sentencing. It was filed on 19 December, as I understand it, a few days late. Given that this was a sentence of a short period of imprisonment and given the appeal was filed only a few days late, it is proper to grant leave to appeal.

[4] Mr Forsyth was released from Rimutaka Prison on 13 June 2012 and subject to 260 days of release conditions. They included a prohibition against contact with the victim, Ms Hohaia, the subject of significant previous offending.

[5] On 23 October 2012 Mr Forsyth shifted addresses leaving Oamaru without advising a Probation Officer of his intention to live in Wellington thereby breaching one of his release conditions. The following day, on 24 October 2012, the Police found Mr Forsyth in the company of the victim, Ms Hohaia, also in breach of his release conditions. Part of the reason for the appellant to be in Oamaru was for the completion of a programme designed to assist in reducing Mr Forsyth’s reoffending.

[6] As the Judge in his sentencing remarks said in the District Court, Mr Forsyth had been originally sentenced to prison for breaching protection orders in respect of the same complainant and breaches of release conditions previously. And so the release conditions arose out of the breaches. The Judge took into account the appellant’s long history of breaching such orders in his sentencing remarks. The Judge said that he had decided that the appropriate starting point was the maximum sentence on each charge and because these events were separate, cumulative sentences were appropriate. I will return to that aspect of the sentencing later.

[7] The Judge considered that the only mitigating factor was the appellant’s guilty plea. Although the Judge did not directly identify the discount he gave for the guilty plea, looking at the resulting sentence, it seems clear it was 25 per cent. The Judge’s start sentence for both offending was, however, 12 months’ imprisonment in total.…

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 Forsyth v Police

Details

AGLC: Forsyth v Police [2013] NZHC 139
Case: [2013] NZHC 139
Decision Date: 29 January 2013

CaseChat Overview and Summary

Forsyth appealed against his sentence of imprisonment imposed by the District Court, arguing that it was manifestly excessive. The appeal was heard in the High Court of New Zealand, Wellington Registry. The District Court had sentenced Forsyth to eight months' imprisonment for breaching prison release conditions, in addition to imposing post-release conditions extending six months beyond the sentence date. The appeal centred on the length of the prison sentence and the additional post-release conditions, particularly the prohibition on associating with the complainant and the requirement to attend an anti-violence course.

The Court had to determine whether the sentence was manifestly excessive and whether the post-release conditions were appropriate. The Court found that the starting point for the sentence was appropriate given Forsyth's history of breaching orders, and the discount for his guilty plea was also appropriate. The Court noted that the release conditions were designed to prevent further offending by Forsyth, and that they were generally sensible and justified by the facts. However, the Court did agree that the requirement for Forsyth to attend and complete the Porirua Living Without Violence programme was unnecessary as he had already completed a similar programme previously and his recent offending did not involve violence.

The Court dismissed the appeal, but deleted the requirement for Forsyth to attend and complete the Porirua Living Without Violence programme from the release conditions. The Court emphasised the importance of Forsyth obeying the Court orders, and noted that it should be possible for him to have sensible access to his children if he can stay crime free.

Orders