The Queen v Forrest [2009] NZCA 493 (21 October 2009)

Court of Appeal of New Zealand

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The Queen v Forrest [2009] NZCA 493 (21 October 2009)

Last Updated: 27 October 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

90/06

[2009] NZCA 493

THE QUEEN

v

BRENDON DOUGLAS FORREST

Hearing: 8 October 2009

Court: William Young P, Panckhurst and MacKenzie JJ

Counsel: Appellant in Person
B M Stanaway and H McKenzie for Crown

Judgment: 21 October 2009 at 2.30 pm

JUDGMENT OF THE COURT

The application to recall the judgment is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by William Young P)

[1] In July 2004 the appellant was sentenced to four and a half years imprisonment for offences including threatening to kill and arson relating to the employees and residents of a residential home for people with an intellectual disability or psychiatric problems, known as Martros. We will refer to this as “the initial offending”.
[2] While in prison for the initial offending, the appellant wrote three letters to solicitors demanding money and threatening their lives and those of their families and co-workers. This was in December 2004. As well, on 4 February 2005, the appellant wrote a letter threatening to kill four persons some of whom were victims of the offending for which he had been sentenced in 2004. We will refer to this offending as “the second round of offending”.
[3] For the second round of offending, Judge Crosbie, on 10 February 2006, sentenced the appellant to a total of three years imprisonment to be served cumulatively with the sentence imposed for the initial offending. In the course of his sentencing remarks the Judge said this:

[14] You have real victims, Mr Forrest, and I have read all their victim impact reports. The effect on one of the victims in particular ... is a profound one. It involves selling of a business, the selling of a home, the complete alteration of that person’s life as a direct result of what you have done. The three lawyers also tell me about the effects on them, on their families, their concerns, the fact that they took them seriously, and even though you were in jail, they felt obliged to take the threats seriously from one respect because they are familiar with your pattern of offending and psychological background.

[4] The particular victim referred to by the Judge was Mr Ross Martin, a principal in the company (Martros Ltd) that operated the Martros home. The remarks of the Judge were based on what was said by Mr Martin both in his depositions statement and in the victim impact statement. For present purposes it is sufficient to refer to the victim impact statement in which Mr Martin said:

Due to this continued harassment, threats to kill me and my family and to destroy Martros, I have taken what appeared to be the only option available to me and sold my home, moved my family to another area and sold Martros Ltd.

[5] A subsequent appeal by the appellant against the sentence imposed for the second round of offending was dismissed by this Court in a judgment delivered on 12 October 2006. The appellant now seeks a recall of that judgment.
[6] This application has its origins in material located by the appellant which is held by the New Zealand Companies Office in relation to Martros Ltd. This indicated that despite what had been said in his victim impact statement, Mr Martin was still a director and shareholder of Martros Ltd and that the registered address of the company was at the address at which Mr Martin had been residing at the time of the earlier offending. Mr Forrest drew the inference from this material that, contrary to what had been said in the victim impact statement and depositions statement, Mr Martin had not sold the business or his house. At the hearing before us Mr Forrest also produced an email which post-dated the time when the business was said to have been sold in which Mr Martin was writing on behalf of Martros.
[7] Based on this material, Mr Forrest claims that he was sentenced on the basis of an account of the consequences of his offending which was false or exaggerated.
[8] The Crown has responded by producing affidavit evidence from a police officer and Mr Martin’s solicitor (herself a victim of offending by Mr Forrest). The affidavit material provided is rather guarded but suggests as follows:

• (a) The share in Martros Ltd previously held by Mr Martin and the former family home have been sold to a trust.
• (b) He and his family no longer live in the former family home but this has been left as the registered office of the company because it is an address which is already known to Mr Forrest.
• (c) Mr Martin has, with the advice of the police and his solicitors, taken careful steps to ensure (as far as possible) that the appellant will not be able to track him down.

The guarded nature of the material placed before the Court is unsurprising, given the context.

[9] Reading between the lines of what has been supplied, it may be that the sales of the business and house referred to in the victim impact statement (and depositions statement as well) were not of the kind envisaged by Judge Crosbie when he sentenced the appellant. The Judge presumably assumed (as we would have) that the sales were to third parties and not an associated trust. On the other hand, the difference between the facts as the judge probably assumed them to be, and the facts as we perceive them is of limited moment in terms of assessing the appellant’s culpability:

• (a) Although the Judge did focus on the impact of the offending on Mr Martin, he was only one of a number of victims.
• (b) The reason why the Judge referred to Mr Martin’s situation was to emphasise the seriousness with which he took the threats and the need to alter his life.
• (c) The material now available does not detract from the seriousness with which Mr Martin has taken the threats. Mr Martin no longer lives in his former home and he has re-arranged his business affairs to make it difficult for Mr Forrest to track him down. In all of this he has taken advice from his solicitor and the police.
• (d) Accepting as we do for present purposes, that Mr Martin’s alteration of his life may not have been as complete as the Judge thought, it was nonetheless substantial.

[10] Although it is understandable that the appellant, with his particular psychological makeup, has focussed on the apparent incongruity between the victim impact statement (and similarly expressed depositions statement) and the New Zealand Companies Office records, we see no credible basis for concluding that his culpability would have been assessed differently if the currently available material had been before the Judge. It follows that there has not been the sort of miscarriage of justice which would warrant reopening the earlier judgment of this Court.
[11] Accordingly the application to recall the judgment is dismissed.

Solicitors:
Raymond Donnelly & Co, Christchurch