The Queen v Gordon Ronald Forrest
[2003] NZCA 35
•3 March 2003
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA362/02 |
THE QUEEN
V
GORDON RONALD FORREST
| Hearing: | 18 February 2003 |
| Coram: | Glazebrook J Hammond J Gendall J |
| Appearances: | V C Nisbet for Appellant F E Guy for Respondent |
| Judgment: | 3 March 2003 |
| JUDGMENT OF THE COURT DELIVERED BY GENDALL J |
The appellant pleaded guilty on arraignment to the crimes of aggravated robbery and receiving a stolen motor vehicle. He was sentenced in the High Court at Christchurch to a term of 12 years’ imprisonment on the charge of aggravated robbery, and a concurrent term of 2 years’ imprisonment on the charge of receiving. The Judge imposed, pursuant to s86 of the Sentencing Act 2002, a minimum non parole period of 8 years.
The appellant appealed against the sentence of 12 years’ imprisonment contending that it was manifestly excessive, but Mr Nisbet did not pursue this. He accepted that the sentence could not be categorised as excessive. However, he submitted that the imposition of a minimum non parole period of 8 years was manifestly excessive and not justified in terms of the statutory requirements contained in s86 of the Act.
The appellant is a habitual criminal with a proclivity for committing armed robberies. He has mostly been in Australia from whence he was deported to New Zealand. He then committed another aggravated robbery in New Zealand and, perhaps fortuitously, received a suspended sentence. Whilst that sentence remained current and was being served, as well as a term of periodic detention, the appellant planned an armed robbery of a bank in Akaroa. He enlisted the aid of less experienced criminals to obtain a firearm and stolen vehicle. He carefully planned the armed robbery expecting that there would be significant funds available in a tourist town during a holiday period. Wearing a disguise he presented a sawn-off rifle at the tellers. Money totalling $6,400 was taken. Members of the public were also present and some, courageously, attempted to apprehend the appellant but had to desist when he presented the firearm at them. Efforts were made to dispose of the stolen get-away motor vehicle, clothing and rifle. A live round of ammunition was found inside the abandoned vehicle. The offences took place in September and October 2001.
Largely as a result of the co-operation and confession of a co‑offender the appellant was apprehended and pleaded not guilty. At the preliminary hearing on 11 June 2002 that co-offender pleaded guilty prior to the commencement of the hearing. He had been the subject of intimidation and violence by a third offender who had provided the stolen vehicle. After the preliminary hearing the appellant was committed for trial. It was only after an indictment was filed, and he was arraigned, that he eventually pleaded guilty on 9 August 2002.
The appellant is aged 52 with a serious criminal background including 42 convictions for armed robbery, and 42 for dishonesty as well as for escaping from custody. He committed serious crimes in Australia which appear to be of a similar nature to the aggravated robbery, and has, there, been sentenced to terms of imprisonment varying between 4 years and 6 years, and in 1988 he was sentenced to 14 years’ imprisonment for armed robbery.
The sentencing Judge had the benefit of the psychologist’s report which described the appellant as intelligent with his crimes clearly following a familiar pattern which represented a lifetime of similar behaviour. In imposing sentence the Judge noted that a co-offender was sentenced to 4½ years’ imprisonment but in his case there were significant mitigating factors, including his lesser criminal history, the minor role that he took in the events, and the assistance and co-operation he gave to the police. The Judge observed the numerous aggravating factors in the appellant’s case, including careful planning, the use of a firearm (the Judge having drawn an inference that it was loaded), the use of a disguise, inherent dangers to members of the public, the target premises being a bank in a seaside tourist area, and the fact that the appellant was serving a suspended sentence for aggravated robbery at the same time. Adopting the principles of this Court in R v Mako [2000] 2 NZLR 170 (CA), the Judge fixed the starting point for the aggravated robbery at 10 years’ imprisonment and added a further 2 years’ imprisonment for the separate crime of receiving the stolen car, producing a starting point of 12 years.
As a consequence, because of the personal circumstances of the appellant and his shocking criminal history, and offending whilst on a suspended sentence, the Judge considered that a total sanction of 14 years’ imprisonment was justified. He gave an allowance for the guilty plea so as to reach a total sentence of 12 years’ imprisonment. The Judge considered that the appellant was very likely to reoffend again because of his recidivist history, the probation officer’s opinion that the appellant was incapable of facing up to the consequences of his actions, and the psychologist’s advice that the appellant could give no reason for his committing this serious offence or the others in the past. Offending for the “thrill” of it was a distinct possibility.
The issue on appeal is whether the minimum non parole period was warranted, and if so, whether its length was manifestly excessive.
The sentencing of the appellant occurred prior to this Court delivering its judgment in R v Brown [2002] 3 NZLR 670. That case addressed the process which a sentencing Judge should undertake when dealing with s86 Sentencing Act 2000. It is not necessary to repeat in any detail what was said in that judgment. Because the aggravated robbery was an offence of serious violence a minimum non parole period could be imposed pursuant to s86, see s152(2). As was said in R v Brown:
The prerequisite for imposing a minimum sentence is that the Judge is satisfied that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment longer than one-third of the sentence imposed. The focus is on the circumstances of the offence. That would seem to preclude from consideration at this initial stage circumstances of the offender unrelated to the particular offence, such as criminal history. However, there are some characteristics of the offender which may constitute circumstances of the offence. It may be a circumstance of the offence that it was committed by the particular offender e.g. infanticide. The provision is intended to apply in circumstances where culpability is high.
The circumstances of the offence must be sufficiently serious to justify a minimum period of imprisonment longer than one-third. Section 86(3) provides one example of when an offence may be seen as sufficiently serious. This is where the offence is more serious than those of offences of that kind normally encountered. It is a matter for judicial judgment whether the “sufficiently serious” threshold is crossed. If it is crossed then the sentencing Judge is required, as a matter of sentencing discretion, to determine whether to impose a minimum sentence. If that point is reached the Judge has to decide what that period should be, within the range of one-third of the nominal sentence and the maximum described by s86(4).
In the present case, the sentencing Judge noted that under s86(3) that the focus was on the circumstances of the offence. In his view the “stand out” features of the case did not so much relate to that, but rather to the appellant’s personal circumstances and appalling record. Taken alone those features would not lead to the “sufficiently serious” threshold being reached. However, the Judge went on to say that:
The fact that you committed this offence whilst subject to a suspended sentence for aggravated robbery, robbery does, in my view, take this case out of the ordinary range of aggravated robbery offending and this warrants the imposition of a non parole period.
The Judge went on to acknowledge that he had earlier categorised that factor as an aggravating matter in fixing the actual sentence, but he did not see any inconsistency between that and the conclusion that entitled him to impose a minimum non parole period.
The purposes of s86 are punitive and denunciatory. The provision is intended to apply in circumstances of a crime of high culpability. Where s86(3) is applied, as this Court said in R v T CA 251/02, 31 October 2002, para [17], a realistic approach is to be adopted as to what is to be regarded as the ordinary range of offending of the particular kind. The difficult point in the process is to decide what might be the “ordinary” range of offences of the kind at issue here, because these types of offences will vary widely from street muggings to grave armed hold ups of banks and/or security vans. In the end it has to be a matter of judicial discretion.
This case is at the top end involving careful planning, the use of a loaded weapon, possible dangers to members of the public in presenting a firearm at them, target premises and the serious intended consequences during the holiday period. The fact that the appellant was at the same time serving a suspended sentence for the same crime of aggravated robbery may be relevant, as well as being a circumstance relating to the offender, it may be seen as also a circumstance relating to the particular offence, but irrespective of that, the case was beyond the ordinary range of aggravated robberies.
We think it was clearly open to the Judge to conclude that the “sufficiently serious” threshold had been crossed so that a minimum non parole period should be imposed. Mr Nisbet did not seriously argue against that conclusion. But he contended that the period fixed of 8 years was manifestly excessive. He said it created an unjustifiable distinction or disparity with the sentence or penalty imposed upon the co-offender who was sentenced to a term of 4½ years’ imprisonment. Obviously there was disparity but the involvement of each offender on their very different personal circumstances and criminal backgrounds justified disparity. The real issue is whether a minimum non parole period of 8 years, being the full two-thirds permissible with a sentence of 12 years’ imprisonment, was manifestly excessive.
The Judge was entitled to impose a minimum non parole period. In determining the length, as between 4 years and 8 years, the Judge was exercising a judicial discretion. He had to fix a term which sufficiently punishes, deters and denounces the offending. He was entitled, and required, to then apply the sentencing principles contained in ss7, 8 and 9 of the Act, at this stage. The automatic fixing of a period at two-thirds of the nominal sentence is not the inevitable.
In this case we think a non parole period of 6 years only was required because, there is factored into the lead sentence of 12 years’ imprisonment a 2 year period for the receiving crime. This offence, seen separately, is not an offence of serious violence. If, rather than factoring the receiving crime into the lead sentence, the Judge had imposed a cumulative sentence for the receiving no minimum non-parole period could have been imposed for that offence – see s152(2). In those circumstances, the maximum non parole period of two-thirds of the sentence is too high. The Parole Board will ultimately decide upon release but cannot do so before the expiration of 6 years. Parole, in fact, may not be granted.
To that extent the appeal is allowed and, pursuant to s86 the minimum non parole period is fixed at 6 years. In all other respects the appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington
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