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Court of Appeal of New Zealand |
Last Updated: 2 March 2010
IN THE COURT OF APPEAL OF NEW ZEALAND
CA626/2009 [2010] NZCA 34BETWEEN BRENDON DOUGLAS FORREST
Appellant
Hearing: 16 February 2010
Court: Hammond, Panckhurst and Keane JJ
Counsel: Appellant in person
N P Chisnall for Respondent
Judgment: 26 February 2010 at 12 noon
JUDGMENT OF THE COURT
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The appeal against sentence is dismissed.
REASONS OF THE COURT
(Given by Panckhurst J)
Introduction
[1] The appellant was sentenced to 18 months’ imprisonment on each of two charges of perjury. These terms were made concurrent, but the 18 month sentence was made cumulative upon Mr Forrest’s existing prison sentence. In the result he is subject to a total term of imprisonment which will expire in May 2015.
[2] In representing himself on appeal Mr Forrest raised two essential grounds of appeal:
(a) that the effective term of 18 months’ imprisonment was clearly excessive on account of various considerations, and
(b) that the totality principle was not observed, with the result that the appellant’s total sentence is disproportionately long.
The offending
[3] The appellant initiated a private prosecution against a former partner. Charges of threatening to kill and criminal nuisance were laid. In relation to the former the gist of the allegation was that the partner had written a letter to the accused dated 22 June 2005 which contained the relevant threat.
[4] On 20 February 2007 the appellant gave evidence on oath at a preliminary hearing. At the conclusion of the hearing presided over by a District Court Judge a finding was made that there was insufficient evidence to warrant a committal for trial.
[5] On 26 April 2007 the appellant relaid the charges. He asserted that additional evidence had been obtained, being fingerprint evidence from an expert which linked the offending letter to his former partner.
[6] On 29 October 2007 the appellant again gave evidence under oath before the same District Court Judge. This was in support of an application that the Judge issue witness summonses for a further hearing. The appellant gave evidence in support of the application to the effect that a private investigator had obtained from the New Zealand police a fingerprint form pertaining to the partner, and delivered it to a fingerprint expert in Perth, Western Australia. The new evidence was said to establish that the appellant’s former partner was the author of the threatening letter. The Judge was unpersuaded that summonses should issue.
[7] On 25 August 2008 the appellant wrote a letter to the Registrar of the District Court at which the two hearings had occurred. He purported to charge himself with perjury and in a summary of facts which was included with the letter he conceded that the letter of 22 June 2005 was a concoction of his making and that neither the private investigator nor the fingerprint expert existed.
[8] The Judge who presided at the two hearings directed that the matter be investigated by the police. When interviewed, the appellant confirmed the confession already set out in the summary of facts he had sent to the Court.
[9] Subsequently, the appellant was charged with two offences of perjury. One charge related to the evidence he gave in February 2007 and the other to the evidence given to the November 2007 hearing. In September 2009 the appellant pleaded guilty on arraignment to the perjury charges. Judge McKegg imposed the sentence of 18 months’ imprisonment.
Was the sentence of 18 months’ imprisonment clearly excessive?
[10] The appellant raised two contentions in relation to this aspect:
(a) that the starting point adopted of three years’ imprisonment was severe, and
(b) that the 50 per cent reduction made from that starting point was insufficient to recognise three mitigating factors: the pleas of guilty, assistance provided to the authorities and the appellant’s diminished responsibility.
The starting point
[11] On 17 September 2009 there was a sentencing indication hearing. Judge McKegg identified three years’ imprisonment as the appropriate starting point. He noted that both counsel had “come to the same position” in this regard. The Judge observed that an end sentence would need to recognise the pleas of guilty (should they be entered), the appellant’s cooperation and the totality principle. He then indicated a sentence of 18 months’ imprisonment, cumulative upon existing sentences.
[12] We interpolate that the same day, at the request of his then counsel, the appellant was arraigned and entered guilty pleas. Sentence was imposed immediately. Because the sentencing indication was a matter of record, Judge McKegg’s sentencing remarks were very brief. He simply made clear that two concurrent 18 month terms were imposed, although cumulative upon the appellant’s existing sentence.
[13] It is not apparent how the three year starting point was reached in the District Court. In this Court Mr Chisnall drew our attention to two authorities. The first is R v Mackie.[1] This was a sentencing which involved a gang member who gave false evidence at a murder trial. The accused at that trial were acquitted. Hammond J’s sentencing remarks recognised three relevant matters of principle:
(a) that there is no set tariff for perjury because cases vary infinitely from frightened persons who perjure themselves for misguided reasons to serious cases of calculated and orchestrated offending,
(b) that sentences must reflect that the very integrity of the criminal justice process is threatened when witnesses lie on oath, so that denunciation and deterrence are essential to the sentencing policy for perjury and condign sentences are necessary in the most serious cases, and
(c) that the punishment imposed should be proportional to the seriousness of the underlying offence (so that perjury committed in a murder trial should be viewed differently to perjury committed in a lesser context).
This Court referred to Mackie with approval in R v Wilkinson.[2]
[14] In light of the authorities we are not persuaded that the three year starting point was excessive. It was intended to mark two offences, the initial perjury when the appellant asserted that his former partner was the author of the offending letter and the further offending when the appellant lied concerning alleged fingerprint evidence. Both offences were committed in the context of charges of threatening to kill and criminal nuisance. Perhaps, a three year starting point was a stern response; but it was within the available range, given successive, persistent offences of perjury in a relatively serious context.
Diminished mental capacity
[15] The appellant candidly submitted that following the end of his relationship with his former partner (upon his imprisonment in 2000) he “remained fixated on her”. He acknowledged sending her letters and making various applications to the Family Court. His argument continued that the private prosecution in 2007 was a product of the same “unhealthy fixation with the victim”.
[16] Prior to the sentence indication a psychiatric report was obtained from Dr Mark Earthrowl. He was asked to assess the appellant’s fitness to stand trial, determine whether he suffered from a disease of the mind and provide a general assessment for the purposes of sentencing. Dr Earthrowl concluded that the appellant was fit to stand trial and suffered from no major mental illness. The report included this general assessment:
He exhibits a low average or borderline intellectual functioning and a diagnosis of a mild pervasive developmental disorder with chronic impairment of interpersonal relatedness, impulsivity and of obsessive behaviours.
[17] On a more positive note the report also referred to a period the appellant spent in the Paremoremo Behavioural Unit where he underwent regular psychological intervention. Dr Earthrowl noted:
Since his return to Christchurch Prison his behaviour has appeared significantly ameliorated and in the last few months there is no history of inappropriate aggression, self harming behaviour or assaults.
The appellant spoke positively to Dr Earthrowl concerning his recent treatment and he said that he no longer held a fixation concerning his former partner.
[18] The issue for present purposes is whether the diagnosis of a mild pervasive development disorder was relevant to sentencing, and in particular whether it required the sentencer to modify the sentence which was otherwise appropriate. As Mr Chisnall rightly pointed out the suggestion of diminished responsibility by reason of behavioural disorder is something to be approached with caution. Often the presence of such a disorder will identify why the offending has occurred; but the extent to which the presence of a behavioural disorder may ameliorate an otherwise appropriate sentence is another matter. The culpability of the offender is a factor of fundamental concern at sentencing, but the principles of deterrence and the protection of the public often affect the weight which can be given to the offender’s personal circumstances.[3]
[19] The present is not a case where a behavioural disorder can be said to have precipitated the appellant’s involvement in unpremeditated and uncharacteristic behaviour, which is unlikely to be repeated. To the contrary, the appellant’s behavioural disorder has seemingly led to his past repeated and obsessive pattern of offending. Nor have sentences of imprisonment, and past interventions, curbed the appellant’s inclination to offend. The best that can be said is that the treatment the appellant received recently at Paremoremo appears to have borne fruit and hope is restored. But, we consider that protection of the public and deterrence must remain the predominant sentencing considerations.
[20] Neither Judge McKegg’s remarks at the sentencing indication, nor at sentencing itself, contained reference to Dr Earthrowl’s report or to the existence of the appellant’s behavioural disorder. The tenor of the Judge’s remarks indicated a focus upon the need for a sentence which met the ends of deterrence and protection. But, for the reasons we have discussed, we do not think this focus can be criticised in the particular circumstances of this case.
Reduction for the appellant’s cooperation and guilty pleas
[21] These aspects can be considered together. At the sentencing indication hearing Judge McKegg considered that a 50 per cent reduction was appropriate for these factors and in recognition of the totality principle. The makeup of the 50 per cent allowance was not detailed.
[22] In this Court Mr Forrest suggested that a 25 per cent allowance for the guilty pleas was appropriate, but he argued that allowance for his cooperation should have been greater. He stressed that he had written to the Court and disclosed the fact, nature and extent of his offending. A prosecution inevitably followed. The appellant submitted that the total reduction should have been 60 per cent from the three year starting point (although this may have included some allowance for diminished responsibility). This would have produced an end sentence of 15 months’ imprisonment.
[23] The argument for a 60 per cent reduction was optimistic. This Court in R v Hadfield[4] said that a discount up to 60 per cent may be appropriate in cases where a defendant entered a guilty plea at the first reasonable opportunity and provided significant assistance to the police with respect to co-offenders.
[24] Here, the guilty plea was not entered at the first reasonable opportunity, rather post committal, immediately following a sentence indication hearing. Although we do not have the full chronology before us, it seems clear that a 20 per cent reduction was the best that could be expected. It follows that the Judge made a further allowance of about 30 per cent for the appellant’s assistance to the police and on account of totality. Such assistance was confined to his admission in relation to the offending brought about by writing to the Court and effectively inviting a prosecution. While these actions certainly required recognition a reduction of 10-20 per cent was sufficient.
The totality principle
[25] Mr Forrest argued that the totality principle was not appropriately applied. He submitted that the Judge was required to conduct “a hypothetical sentencing exercise”. That is, the sentencer should have assessed the appropriate sentence for offending committed in 2004, offending in 2006 and then the 2008 offending – as if all matters were dealt with on a single occasion.
[26] The case R v Theodore[5] was cited as authority for this proposition. The appellant was sentenced to five years’ imprisonment upon a charge of causing grievous bodily harm, which sentence was made cumulative upon an earlier four year sentence (comprised of eight months for one robbery and three years four months for another). In delivering the judgment of the Court Eichelbaum J said:[6]
The totality principle requires the Court to address the question of the appropriate sentence for these three separate sets of offending, on the hypothesis that sentencing for all three is before the same Judge on the same occasion.
This is one way of characterising the method pertaining to application of the totality principle.
[27] But there is no single formula. The principle simply requires that Judges, whether sentencing an offender in relation to a number of offences at one time or in imposing a cumulative sentence upon an existing term of imprisonment, ensure that any cumulative term of imprisonment is not wholly out of proportion to the gravity of the overall offending.[7] Whether this is achieved by adopting the hypothetical approach suggested in Theodore, or by simply noting the existing term of imprisonment and the effect of any indicated addition to it, does not matter. The essential point is that the principle is applied, so that the total sentence is not crushing.
[28] Judge McKegg expressly averted to the principle in the course of his sentencing indication remarks. The 50 per cent reduction from the original three year starting point included an unspecified allowance for totality. Ideally, it would have been helpful if the reductions made for the guilty plea and for assistance to the authorities were articulated, so that any final rounding down of the sentence on account of totality was also apparent.
[29] That said, it is clear that the totality principle was applied and in the final analysis we are satisfied that the cumulative sentence of 18 months’ imprisonment produced a total outcome which was not wholly out of proportion given the gravity of the perjury offending.
Result
[30] The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
[1] R v
Mackie (1998) 16 CRNZ 248 (HC).
[2] R v
Wilkinson CA277/04, 16 December
2004.
[3] See the
discussion in R v Clarke CA225/98, 3 September
1998.
[4] R v
Hadfield CA337/06, 14 December
2006.
[5] R v
Theodore CA382/96, 24 February 1997
(Theodore).
[6]
At 4.
[7]
Sentencing Act 2002, s 85(2).
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