R v Forrest CA383/06

[2006] NZCA 516

IN THE COURT OF APPEAL OF NEW ZEALAND

CA383/06

THE QUEEN

v

BRENDON DOUGLAS FORREST

Hearing:         4 December 2006

Court:            O’Regan, Robertson and Ellen France JJ Counsel:  Applicant in Person

A M Powell for Crown

Judgment:      11 December 2006         at 2.30 pm

JUDGMENT OF THE COURT

The application for special leave is declined.

REASONS OF THE COURT

(Given by Ellen France J)

R V FORREST CA CA383/06  11 December 2006

Introduction

[1]      This is an application under s 144(3) of the Summary Proceedings Act 1957 for special leave to appeal to this Court against a judgment of Panckhurst J delivered on 29 April 2005.   The applicant sought leave from the High Court, but that was refused by Panckhurst J on 3 October 2006.

Basis of proposed appeal

[2]      The question on which the applicant seeks leave is whether ss 84 and 85 of the Sentencing Act 2002, which concern the use of cumulative and concurrent sentences and the totality principle, were properly applied.

Background

[3]      The applicant is a 23 year old man who has been diagnosed as suffering from Asperger’s Syndrome.   He was sentenced in the District Court on 30 July 2004 having pleaded guilty to arson and threatening to kill.  The effective term of four and a half years imprisonment imposed on him comprised a three and a half year term for arson and a one year cumulative term for threatening to kill.

[4]      In terms of the factual background to the present application, we need to refer to incidents pre-dating the present offending.

[5]      In  2001  the  applicant  was  sentenced  to  three  years  imprisonment  after pleading guilty to arson.  He was then 17 years old.  That arson involved property damage of about $190,000.   The applicant advised us that his appeal against this earlier three year term was just heard on 30 November 2006.

[6]      The applicant had been released on parole from that three year sentence in August 2003 on conditions.  One condition was that he reside at a residential home in Spring Grove, Christchurch, occupied by persons with various functional disabilities.

[7]      In February 2004, the applicant left Spring Grove House and went to Nelson. Whilst there, he was charged with threatening behaviour which included making threatening  phone  calls  to  either  staff  or  residents  of  the  Spring  Grove  House. He was remanded in custody and in fact had already served the sentence of four months which was imposed on him by the date of sentencing on 11 May 2004. He was accordingly immediately released.

[8]      The offences leading to the four and a half year term were then committed two days later on 13 May 2004.   A phone call was made reporting a fire at the Spring Grove address that night.   The sentencing Judge inferred that the applicant made the call.  Fire officers went to the address and, luckily, found a fire in a garage which was put out with minimal damage done.   The  garage was attached to  a sleep-out ordinarily occupied by staff and the sleep-out was about a metre from the house which is occupied by the residents.

[9]      A few hours later that night, the applicant went to Spring Grove.  He came across the manager of the house.  The manager was in his car.  The applicant poured kerosene along the roadside within a couple of metres of the car.  The manager saw the applicant unsuccessfully attempt to light the kerosene.

[10]     The manager phoned the police who arrived shortly after.  The applicant was seen dropping a 20 centimetre bladed knife and was heard making threatening remarks towards the manager.

[11]     Judge P A Moran in sentencing the applicant saw the offending as grave because of the potential for loss of life.  The Judge also took into account the impact on the manager.  The protection of the public was treated as the dominant sentencing consideration.

[12]     The final terms of three and a half and one years imprisonment were reached after giving a discount for the guilty pleas from starting points of five and a half years and one and a half years.

[13]     The applicant appealed against his sentence to the High Court.  That appeal was dismissed.  He was unsuccessful in his application in the High Court for leave to appeal to this Court.

Discussion

[14]     The    Court    may    grant    special    leave    under    s 144(3)    of    the

Summary Proceedings Act:

[I]f in the opinion of [this] Court, the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

The test is discussed in R v Slater [1997] 1 NZLR 211 at 214-215.

[15]     The applicant’s argument on the approach to ss 84 and 85 has two main aspects.   First, the applicant says the sentencing Judge made an error in the description of facts.  Judge Moran said the applicant had tried to light the kerosene that he had “poured over the car”.  Panckhurst J on appeal accepted at [13] that this was not correct as the kerosene was poured on the ground “over an area which got close to the car but was never more than a few metres away from it.”

[16]     The applicant wishes to argue on appeal that the incorrect version of events was treated as an aggravating feature when it did not in fact reflect the seriousness of the offending in terms of s 85(1).

[17]     Further, the applicant submits Panckhurst J was wrong when he said at [24] of the one year term, “whether that term should or not have been one years imprisonment does not seem to me to be greatly material”.

[18]     The second  aspect of the applicant’s  argument  is  that  Judge  Moran  was wrong to say that the one year term should be cumulative “given the aggravating features” of it.  The applicant says this is not the test in terms of s 84.

[19]     For the Crown, Mr Powell submits that none of the matters raised by the applicant  give  rise  to  questions  which  meet  the  test  in  s 144(3).    Mr Powell

suggested that the only possible question of law relates to the approach to s 85. On its face, he says, s 85(1) envisages first an assessment of the seriousness of the individual sentence.   Then, if a cumulative term is imposed, the combined terms must not offend against the totality principle (s 85(2)).  Finally, in terms of s 85(3), if the imposition of cumulative sentences results in a series of short sentences that on their own fail to reflect the seriousness of the offending, longer concurrent sentences or a combination of concurrent and cumulative terms are to be preferred.   This analysis, Mr Powell suggests, indicates that it is not contemplated that the individual sentence is irrelevant.

[20]     However, as Mr Powell went on to say, whether or not what occurred here is determinative turns on whether the overall sentence was appropriate.

[21]     It was perhaps an unfortunate turn of phrase to describe the length of the one year term as not “greatly material”.  In the end, though, all the Judge meant by that was  that  when  considered  overall  a  sentence  of  four  and  a  half  years  for  the offending was not manifestly excessive.  Indeed the sentence was, Panckhurst J said, “entirely” within range.  That this was the Judge’s approach is apparent from [27] of the judgment where Panckhurst J refers to the need to stand back and ask whether the end sentence was manifestly excessive “regardless how it was arrived at …”.

[22]     The analysis undertaken was consistent with the recent discussion by this court of ss 84 and 85 in R v Xie and Others  CA397/05 8 August 2006 at [16]-[18]:

[16]      The  fundamental  tenet  of  the  totality  principle  is  that  the  final sentence must reflect “the totality of the offending”.  How the total sentence is made up has never been important …

… in R v Barker CA57/01 30 July 2001 … this court, at [10] reiterated the key principles when sentencing for multiple offending:

(a)      With multiple offences the sentence must reflect the totality of the offending;

(b)In respect of multiple offences, this court will not insist that the total sentence be arrived at in any particular way; and

(c)      The  total  sentence  must  represent  the  overall  criminality  of  the offending and the offender.

[18]     Those principles survive the enactment of the Sentencing Act and indeed are endorsed by it.

[23]     It follows that the approach adopted does not give rise to any question of law of the requisite importance about the application of either s 84 or s 85.

[24]     As to the applicant’s concern about the weight given to the incorrect factual position, we do not see that as giving rise to any error of law.  Panckhurst J made the point that a cumulative sentence was appropriate given that the threatening charge was different in kind.  That reflects an orthodox application of s 84.  The Judge was correct, in any event, that the seriousness of the offending was such that the final sentence was well within the available range.

[25]     The applicant raises other factual matters none of which can give rise to a question of law.

[26]     Finally,  the  applicant  says  the  proper  comparison  is  with  R v Skeens CA341/01 26 February 2002 where a term of three and a half years imprisonment was imposed concurrent with a term of one years imprisonment on a count of arson and of threatening to kill.  If this comparison is made, the applicant says, the term imposed on him is manifestly excessive.

[27]   Comparisons, however, need to be take into account factual differences underlying such sentencing decisions.  As Panckhurst J observed at [21], Skeens was in the category of cases with “the hallmarks of a one-off  episode”  without  the prospect of future risk as indicated by the applicant’s history.  This matter does not give rise to any question of law.

Result

[28]     The application for special leave is declined.

Solicitors:

Crown Law Office, Wellington