The Queen v Forrest

[2009] NZCA 494

IN THE COURT OF APPEAL OF NEW ZEALAND

CA495/2009
[2009] NZCA 494

THE QUEEN

v

BRENDON DOUGLAS FORREST

Hearing:8 October 2009

Court:William Young P, Panckhurst and MacKenzie JJ

Counsel:P N Allan for Applicant

B M Stanaway and H McKenzie for Crown

Judgment:21 October 2009 at 2.30 pm

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by William Young P)

[1]        This judgment should be read with the judgment in R v Forrest [2009] NZCA 493 which is being released at the same time.

[2]        In 2004 the applicant was sentenced to four and half years imprisonment for threatening to kill and arson (“the initial offending”).  While in prison he wrote a number of letters of a threatening kind (“the second round of offending”) for which he received a cumulative sentence of three years.  In December 2006 the applicant, while still in prison, committed two more offences of the same ilk, the first in the form of a letter to a police officer threatening harm to 11 named people and the second in a letter to one of those named people (a solicitor acting for one of the victims in relation to the earlier offending) threatening to kill her and some of her clients if she did not pay him a sum of money.  We will refer to this last set of offences as “the third round of offending”.

[3]        The applicant pleaded guilty relatively quickly to the charges associated with the third round of offending but, for a number of reasons, sentencing was delayed for some time.  Eventually, in December 2008, he appeared for sentence before Judge Morris in the North Shore District Court and was sentenced to two years imprisonment cumulative on the sentences he is already serving.

[4]        The applicant appealed against that sentence but his appeal was dismissed by Woodhouse J in a judgment delivered on 11 May 2009.  A subsequent application to Woodhouse J for leave to appeal was declined on 4 August 2009.

[5]        We are now required to address an application for special leave to appeal on a basis which was not specifically argued before Woodhouse J.

[6]        Mr Allan, who represented the applicant before us, contended that leave to appeal was warranted on the question whether the totality principle was appropriately applied.  In order to put this submission in perspective, we need to record the way in which Judge Morris arrived at her end sentence of two years imprisonment.

[7]        The District Court Judge adopted a starting point of four years for the third round of offending which she reduced by one-third for the guilty pleas.  From the resulting provisional figure of three years and four months imprisonment she allowed a further discount of one year and four months to allow for:

(a)Some hope that the applicant was addressing his psychological issues exemplified by the fact that he had not sent any threatening letters over the preceding twelve month period; and

(b)The fact that the applicant was “in custody until 2011”: at [27].

[8]        In the latter respect the Judge addressed the totality principle in that she recognised and allowed for the practical impact of the sentence she was imposing in the context of other sentences which the applicant was already serving (cf R v Gillies CA97/96 1 October 1996).  But on the argument advanced by Mr Allan, this was not enough.  He argued that Judge Morris should have conducted a hypothetical sentencing exercise with a view to establishing the sentence which would have been imposed had the applicant been sentenced for the initial offending, the second round of offending and the third round of offending together on one occasion.   The Judge should then have arrived at a sentence for the third round of offending by deducting, from the notional sentence just discussed, the sentences imposed for the initial offending and the second round of offending.  Since a hypothetical sentencing exercise of the kind postulated would probably not result in a total sentence of nine and a half years, such an approach would likely result in the sentence imposed by Judge Morris being reduced.

[9]        There is authority which suggests that this is an appropriate approach in relation to offending committed in prison, see for instance R v Theodore CA382/96 24 February 1997.  But in that case the offending in prison was unrelated to the prior offending and was therefore primarily of contextual rather than aggravating significance.   That is not the position in relation to the applicant’s offending.

[10]The fact that the second round of offending was committed while the applicant was in prison in relation to the initial offending, combined with the overlapping character of the offending, served to render the second round of offending distinctly more culpable than would otherwise have been the case.  Indeed when this Court dismissed an appeal against the three year sentence, it referred to the possibility that the prevention principle might be engaged.  The further fact that the applicant was in prison for both the initial offending and the second round of offending when he committed the third round of offending was likewise a serious aggravating feature in relation to that offending.  The hypothetical sentencing exercise postulated by Mr Allan, by its nature, would not have made allowance for the repetitive nature of the applicant’s behaviour and its persistence despite sentences of imprisonment – in other words, the stand out features of his offending as a whole.

[11]Because we are satisfied that there is no merit in the proposed appeal, we dismiss the application for leave to appeal.

Solicitors:

Raymond Donnelly & Co, Christchurch