Hayes aka Forbes v Police
[2025] NZHC 180
•14 February 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2025-409-000052
[2025] NZHC 180
BETWEEN JOHN ANDREW HAYES (aka JOHN ANDREW FORBES)
AppellantAND
NEW ZEALAND POLICE
Respondent
Hearing: 13 February 2025 Appearances:
D J Matthews for Appellant B Hawes for Respondent
Judgment:
14 February 2025
JUDGMENT OF EATON J
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
HAYES (aka FORBES) v POLICE [2025] NZHC 180 [14 February 2025]
Introduction
[1] Following his guilty pleas, on 30 May 2024 John Andrew Hayes (aka John Andrew Forbes) was sentenced by Judge M J Callaghan in the Christchurch District Court to 25 months’ imprisonment on charges of male assaults female,1 assault on a person in a family relationship,2 indecent exposure,3 intimidation,4 intentional wilful damage (x2),5 unlawfully in an enclosing yard,6 unlawfully taking a motor vehicle,7 careless use of a motor vehicle,8 aggravated disqualified driving,9 and failure to appear in court.10
Background
[2] Initially Mr Forbes filed an appeal against sentence focussing on the 15-month sentence imposed on the charge of male assaults female. That appeal was then abandoned and substituted with an appeal against conviction on that charge. The grounds of appeal against conviction raised counsel error. Mr Forbes maintained that he did not ever understand, and disputed, the factual basis upon which the Judge imposed sentence on that charge.
[3] I heard Mr Forbes’ appeal against conviction on the afternoon of 13 February 2025. Mr Forbes gave evidence as did his trial counsel.
[4] Mr Matthews appeared on behalf of Mr Forbes and cross-examined trial counsel. Mr Hawes, the Crown solicitor, cross-examined Mr Forbes.
[5] At the conclusion of that hearing there was discussion as to the merits of the appeal against conviction, the likely ramifications if I was to allow the appeal given Mr Forbes had negotiated a resolution that resulted in a number of charges being
1 Crimes Act 1961; s 194(b), maximum penalty two years’ imprisonment.
2 Section 194(a); maximum penalty two years’ imprisonment.
3 Summary Offences Act 1981, s 21(1)(a); maximum penalty three months’ imprisonment.
4 Section 21(1)(a); maximum penalty three months’ imprisonment.
5 Section 11(1)(a), maximum penalty three months’ imprisonment.
6 Section 29(1)(b); maximum penalty three months’ imprisonment.
7 Crimes Act 1961; s 226(1), maximum penalty seven years’ imprisonment.
8 Land Transport Act 1998, ss 8 and 37; maximum penalty $3000 fine.
9 Sections 32(1)(a), 32(4); maximum penalty two years’ imprisonment.
10 Bail Act 2000, s 24; maximum penalty three months’ imprisonment.
reduced and whether the appeal was not more appropriately advanced as an appeal against sentence.
[6] Mr Matthews consulted privately with Mr Hawes and obtained further instructions from Mr Forbes. After a short adjournment Mr Matthews confirmed he was instructed to abandon the appeal against conviction and to file an appeal against sentence, out of time. Mr Hawes confirmed the Crown would raise no objection to the appeal being filed out of time.
[7] Further, Mr Hawes indicated that in light of the evidence given in support of the conviction appeal, that the Crown had no objection to this fresh evidence being considered in support of the appeal against sentence and had no opposition to a small downward adjustment to the sentence.
[8] This morning Mr Matthews filed a formal notice of abandonment of the conviction appeal and an application to appeal his sentence out of time.
The facts
[9] On 7 September the first victim arrived at her home address in her vehicle. As she exited her vehicle Mr Forbes was standing behind her. She asked if she knew him and he replied, “no just a bit of fun baby”. He then unzipped his pants and exposed his penis.
[10] On 11 October 2023, Mr Forbes was at the Salvation Army family store. He walked behind the back of the store and entered through a gate. He removed items from the Salvation Army and placed them in a box.
[11] On 26 December 2023 Mr Forbes was at his home address. He and his ex-partner, the second victim, were in his sleepout. They argued. Mr Forbes said, “you know how easily I could end your life”. He then picked up the victim’s cell phone and broke it in half.
[12] Mr Forbes later arrived at the second victim’s address and grabbed the victim by the arms and dragged her upstairs. He forcibly took the car keys from the victim’s
pocket and left the address. He then got into her vehicle, drove it from the address, crashing into a power pole causing a power outage. He then drove back to the first address.
[13] Mr Forbes then drove to his home address and began arguing with the second victim. It is the facts of this assault that gave rise to the factual dispute and the conviction appeal. The summary of facts recorded that Mr Forbes had grabbed the victim by the neck with his thumb and finger for approximately 30 seconds and applied pressure while she was on the phone to the police (the disputed facts). It recorded that the victim was able to breathe and that when he released his grip, he pushed her backwards with his hand before leaving the address. Before leaving, Mr Forbes snatched the victim’s cell phone from her hands, throwing it to the ground and causing it to smash.
The decision under appeal
[14] The Judge referred to Mr Forbes’ substantial history of over 23 years of family harm. The Judge observed that Mr Forbes had prior convictions for unlawful takings in 2022 and 2021, disqualified driving in 2022 and 2015, unlawfully in an enclosed yard in 2021, threatening to kill in 2019, disorderly behaviour, assault with intent to injure in 2019, impeding breathing in 2019, intentional damage in 2019, multiple breaches of protection orders between 2011 and 2018, multiple convictions for male assaults female and a wounding charge.
[15] The Judge observed that the pre-sentence report identified alcohol consumption as a problem and recommended a sentence of imprisonment. The Judge referred a report of a clinical psychologist that diagnosed Mr Forbes as suffering mood disorders, a previous psychotic disorder and PTSD. The Judge referred to a conclusion in the report that Mr Forbes presented as a likely risk of similar offending in the future and that his prospect with respect to his substance use is especially poor with a high probability of continuing his use of substances beyond release.
[16] The Judge treated the lead charge as the male assaults female charge but wrongly described it as a charge of assault on a person in a family relationship. The Judge referred to the disputed facts. For that offending, a starting point of 15 months’
imprisonment was adopted. The Judge described it as a serious assault on a person in a family relationship.
[17] For the second assault (a charge of assault on a person in a family relationship) a cumulative sentence of 10 months’ imprisonment was considered appropriate. A further one month was added for the charges of intentional damage and threatening to kill. A two-month uplift was imposed for the indecent exposure. A further two months was added for the unlawful taking of the motor vehicle and one month for being unlawfully in a yard. Two months concurrent was imposed for driving while disqualified and a three-month uplift imposed to reflect prior convictions. That gave rise to an adjusted starting point of 34 months’ imprisonment. No totality adjustment was made. A 20 per cent deduction was allowed for guilty pleas and a five per cent deduction for other personal background factors as set out in the reports.
[18]The end sentences imposed were as follows:
(a)male assaults female (wrongly described as assault on a person in a family relationship): 14 months’ imprisonment;
(b)male assaults female: nine months’ cumulative;
(c)indecent exposure: two months cumulative.
[19] That gave rise to an end sentence of 25 months’ imprisonment. Concurrent sentences were imposed for the lesser offending.
The “fresh evidence”
[20] Mr Hawes accepts that I should treat the evidence I heard from Mr Forbes and trial counsel as fresh evidence relevant and admissible on the sentence appeal.
[21] Mr Forbes’ evidence is that he did not apply pressure to the neck of the victim for 30 seconds. Rather, he says that he was grossly intoxicated, enraged and when confronted by an intoxicated victim, pushed her away in the region of her
neck/collarbone. He accepts there could have been contact with the victim’s neck and force applied.
[22] His evidence is that from the outset he did not believe he was guilty of the impeding breathing charge. First, because the summary of facts recorded that the complainant’s breathing was not impeded, and secondly because he denied grabbing her by the neck and applying pressure for 30 seconds.
[23] Trial counsel gave evidence. He had understood that Mr Forbes’ primary instructions were to negotiate a resolution of the charges, particularly to avoid conviction for the impeding breathing and threatening to kill charges. Counsel had understood that Mr Forbes’ primary defence to the impeding breathing charge was that the complainant’s breathing was not impeded but acknowledges that his contemporaneous notes record that Mr Forbes has also told him that he only pushed the complainant away. Trial counsel responsibly acknowledged that it was possible that there had been a miscommunication between him and Mr Forbes. Mr Forbes was in custody throughout and therefore had limited opportunities to meet with his counsel face to face.
[24] The resolution trial counsel negotiated with the police included that the impedes breathing charge be reduced to male assaults female and the threatening to kill charge reduced to a Summary Offences Act intimidation charge, but that the summary of facts would essentially stay the same. Other charges were also reduced.
[25] I am quite satisfied on the evidence that trial counsel obtained written instructions to implement that arrangement and that counsel sent details of that arrangement together with the summary of facts to the prison for forwarding to Mr Forbes. Counsel had also sent his sentencing submissions to Mr Forbes in the prison. However, I accept Mr Forbes’ evidence that he did not in fact receive those documents. Consequently, I accept Mr Forbes’ evidence that the first he learnt that he was being sentenced on the basis of facts that he disputed was when the Judge referenced those matters in his sentencing notes.
Analysis
[26] Counsel have adopted a pragmatic response to this appeal. In my view that was entirely appropriate. If I had been minded to allow the appeal against conviction, it would have been open to the prosecution to seek to reinstate four charges that were reduced as a result of the resolution discussions. However, in the meantime Mr Forbes has been in custody for 13 months. He has passed his first parole date and is likely to be released in the coming months.
[27] I do not consider it to be in the interest of the victims or Mr Forbes for this matter to be potentially prolonged in the District Court. I am satisfied, having heard the fresh evidence, that there was a breakdown in the communication between trial counsel and Mr Forbes. I agree with Mr Matthews that could have been avoided if counsel had ensured that Mr Forbes had signed the summary of facts prepared after the resolution was negotiated. I am troubled that Mr Forbes has been sentenced on the basis of facts that he did not admit and that those disputed facts were critical in fixing a sentence of more than 24 months’ imprisonment.
[28] In effect, I have heard a disputed facts hearing albeit without hearing from the victim. I have no doubt the victim would have no desire to participate in such a hearing so longer after the sentencing and particularly when Mr Forbes has, in effect, served the sentence that was imposed for the offending against that victim.
[29] I am satisfied, having heard Mr Forbes’ evidence, and taking a broad and pragmatic view as to how the overall interests of justice are best served that a slightly lesser sentence of 12 months’ imprisonment was appropriate for the charge of male assaults female involving the force Mr Forbes applied to the complainant’s neck.
Result
[30] Leave is granted to Mr Forbes to appeal out of time against sentence. The appeal against sentence is allowed.
[31] The sentence of 14 months’ imprisonment imposed for the charge of male assaults female is quashed and substituted with a sentence of 12 months’ imprisonment.
[32]The other sentences are confirmed.
[33] The total sentence is therefore reduced to one of 23 months’ imprisonment. All other orders made by the District Court are confirmed.
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Eaton J
Solicitors:
Crown Solicitors, Christchurch
Counsel:
D J Matthews, Barrister, Christchurch
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