The Queen v Forrest

[2006] NZCA 286

IN THE COURT OF APPEAL OF NEW ZEALAND

CA90/06

THE QUEEN

v

BRENDON DOUGLAS FORREST

Hearing:29 August 2006

Court:William Young P, Panckhurst and Ronald Young JJ

Counsel:P N Allan for Appellant

J A Farish for Respondent

Judgment:12 October 2006 at 3 pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

REASONS

(Given by Ronald Young J)

[1]       This is an appeal from a sentence of three years imprisonment imposed on 10 February 2006 by Judge Crosbie on three charges of demanding money with menaces, and four of threatening to kill.  The appellant says that Judge Crosbie made errors of fact in his sentencing remarks which led him improperly to increase the sentence, and the sentence was manifestly excessive.

Background

[2]       In July 2004 the appellant was sentenced to four and a half years imprisonment for offences including threatening to kill and arson relating to employees and residents of a residential home known as Martross.  While in prison for this offending the appellant wrote to three Christchurch lawyers, some of whom had acted for the appellant, others of whom had acted for parties in litigation with the appellant, demanding various sums of money and threatening their lives, their families’ lives and their co-workers’ lives.  In February 2005 the appellant wrote a single letter threatening to kill with a high-powered rifle four persons, some of whom were victims of his previous offending associated with the residential home, Martross.  The letter contained a map of a house where each victim would be killed, cards containing some personal details of the victims and a description of when the appellant would escape from custody to carry out the killings. 

Reasons for sentence

[3]       The Judge in his sentencing remarks identified the aggravating features as: threats of violence to the victims; the fact the offences occurred while the appellant was in prison on similar offending; the significant victim impact; some premeditation; and the appellant’s previous convictions for similar violent behaviour.  The Judge referred to a psychiatric report and to probation reports which identified that the appellant suffered from Aspergers Syndrome, had borderline intellectual functioning and personality disorders.  The Judge concluded that while the appellant was not suffering from any mental illness, his risk of re-offending was high.  After giving an appropriate discount for the appellant’s guilty pleas, the Judge imposed a sentence of three years imprisonment on all offences cumulative on the appellant’s existing four and a half year sentence.

Counsel’s submissions

[4]       The appellant submits that the Judge made two factual errors in his sentencing remarks which were significant and resulted in an “inappropriately high sentence”.  The first alleged error was when the Judge said:

In July 2004 you were sentenced to a total of three and a half years imprisonment.

[5]       Counsel for the appellant points out that the actual sentence was one of four and a half years imprisonment.  This error by the Judge, however, was corrected later when he said:

[4]All of these offences occurred while you were serving a sentence of imprisonment.  I mentioned three and a half years imprisonment – in fact I think the total was four and a half years’ imprisonment for arson and threatening to kill.

[6]       We are satisfied the Judge correctly appreciated the sentence imposed in July 2004 was four and a half years imprisonment and he made no relevant error.

[7]       The second error relates to the number of charges of threatening to kill that the appellant was to be sentenced for.  As to this the Judge said:

[1]     ... You also appear for sentence on eight charges of threatening to kill that occurred in late February 2005.

And further at paragraph [3]:

[3]     In relation to the threatening to kill charges, while in prison you wrote a letter in which you threatened to kill eight victims, stated that you would use a high-powered weapon to kill each of them and that it would be a bloodbath.

[8]       Counsel for the Crown accepts that this was an error.  It is agreed the appellant faced only four counts of threatening to kill.  The confusion arose because of an error in the Summary of Facts presented to the Judge.  The summary in both the caption and narrative describes eight charges and eight victims. 

[9]       The appellant submits that the sentence of three years imprisonment would have reflected the total offending, including some increase on account of the Judge’s understanding there were eight victims. 

[10]     The Crown submits that, while accepting an error occurred, the threats were contained within one letter and in the circumstances the error would have had no influence on the overall sentence imposed by the Judge.

[11]     Counsel for the appellant submits the sentence was manifestly excessive, taking into account:  the lack of any actual danger to the victims given the appellant was in prison at the time of his threats;  his remorse as illustrated in the probation officer’s comments; his early guilty plea.  Counsel says the Judge should have taken into account the totality principle in assessing what was an effective sentence of seven and a half years imprisonment for the 2004 and the current offending.  And, finally, counsel says that when compared with the facts of Wilkie v R CA6/05 27 April 2005 the sentence of three years is manifestly excessive.

[12]     The Crown submits that the sentence of three years imprisonment was well justified given the relevant background and history to this offending.  Counsel emphasised that the offending occurred while the appellant was serving a prison sentence for similar offending against some of the same victims.  The Crown emphasised that the victim impact, especially to those victims who were offended against a second time was especially severe.  The Crown says that the appellant’s record shows similar behaviour, including convictions for threatening to kill, arson, assault and threatening behaviour between 2000 and 2004 and such behaviour together with the appellant’s personality points to a high risk of re-offending.

Discussion

[13]     Clearly the Judge made an error when he said that the appellant had threatened to kill eight rather than four victims.  We do not, however, think in the circumstances that this influenced the Judge’s final sentence.  The threats in relation to the four victims were all contained in one letter.  There was no suggestion of separate threats being made to each victim.  The Judge did not purport to impose cumulative sentences on the threatening to kill charges but imposed concurrent sentences.

[14]     We do not consider the sentence of three years imprisonment to be manifestly excessive.  We agree with the Crown that once the background to the appellant’s conduct and his personal circumstances are understood, the seriousness of his offending is obvious.  The appellant had been released on parole in August 2003 to Martross Residential Centre.  After leaving the residence the appellant made a number of threatening and offensive calls to staff and residents of the Centre.  In May 2004 the appellant was sentenced to three months imprisonment for those crimes.  A few days after his release from this sentence of imprisonment he set a fire in a garage of the residence.  Fortunately the fire service found the fire and put it out.  The fire had burnt through an external wall and severely scorched the inside of the roof of the garage.  That garage was attached to a sleep-out used by staff and residents and is close to the house where the other residents reside.  The appellant came back to the scene of the fire later that night and saw the manager of the residence sitting in his car.  He poured kerosene over the car, threatened to kill him with a knife and tried to ignite the kerosene but was unable to do so.  The Judge on sentencing in July 2004 for these offences identified the need to protect the public as the dominant consideration, particularly given the appellant had already been convicted for arson in 2000 when he burnt a restaurant to the ground arising from a belief that he should “pay-back” someone against whom he had a grievance.

[15]     This background illustrates the seriousness of the threatening to kill charges which were made against persons who were associated with the Martross residential home.  There was considerable planning and thought that went into the threats to kill, given the detail of the threats.  This was designed to frighten the victims and make them believe that the threats were capable of being carried out.  The appellant went so far as to tell the victims when he proposed to escape from prison to carry out these threats.  The victim impact report records the serious effect these threats had on these victims.  Given the appellant had previously illustrated his capacity to carry out such threats, such fear seems reasonably based.  The fact that this offending occurred while the appellant was serving a sentence of imprisonment for similar offending was a serious aggravating feature.

[16]     The pre-sentence report and the psychiatric assessment illustrated Mr Forrest’s propensity, apparently arising from his Aspergers Syndrome, to become fixated on account of what he believes to be unfair treatment by individuals.  As a result, the appellant is driven by a desire to “pay-back” those whom he assumes have mistreated him.  His current and previous offending illustrate this trait.

[17]     The psychiatrist considered the appellant poses an extremely high risk of causing serious harm to others.  The probation officer records, however, that Mr Forrest, for the first occasion, expressed remorse for his actions and he now holds no grudges against the victims.  This, the probation officer believes, showed a different face to the one previously presented to the probation service and to the Court.  We consider, given the appellant’s past offending and his dangerous propensity for “pay-back” that a sentence designed to protect the public was justified (see R v Ward [1976] 1 NZLR 588 (CA)).

[18]     We accept that a total sentence of seven and a half years imprisonment for the offending in 2004 and in 2005 was overall a stern sentence.  In the circumstances, however, we consider it was within the range available to the Judge given the serious aggravating features we have identified.  The appeal will be dismissed.

Solicitors:
Crown Law Office, Wellington