Forsyth v Police [2013] NZHC 139 (29 January 2013)

Last Updated: 15 February 2013

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-485-114 [2013] NZHC 139

JOHN WILLIAM FORSYTH

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 29 January 2013

Counsel: M Robinson for Appellant

A J Ewing for Respondent

Judgment: 29 January 2013

_{ORAL JUDGMENT OF RONALD YOUNG J}

[1] Mr Forsyth pleaded guilty to two charges of breach of prison release conditions on 2 November 2012. The District Court Judge imposed an eight month’ sentence of imprisonment on 16 November 2012 and post release conditions extending six months beyond the sentence date.

[2] This appeal against sentence is on the basis that the sentence was manifestly excessive when taking into account the combination of the term of imprisonment and that additional release conditions especially the prohibition on associating with the complainant and the requirement to attend an anti violence course which are said to

_{be unnecessary and inappropriate.}

JOHN WILLIAM FORSYTH V NEW ZEALAND POLICE HC WN CRI 2012-485-114 [29 January 2013]

[3] The appeal should have been filed within 28 days of the date of sentencing. It was filed on 19 December, as I understand it, a few days late. Given that this was a sentence of a short period of imprisonment and given the appeal was filed only a few days late, it is proper to grant leave to appeal.

[4] Mr Forsyth was released from Rimutaka Prison on 13 June 2012 and subject to 260 days of release conditions. They included a prohibition against contact with the victim, Ms Hohaia, the subject of significant previous offending.

[5] On 23 October 2012 Mr Forsyth shifted addresses leaving Oamaru without advising a Probation Officer of his intention to live in Wellington thereby breaching one of his release conditions. The following day, on 24 October 2012, the Police found Mr Forsyth in the company of the victim, Ms Hohaia, also in breach of his release conditions. Part of the reason for the appellant to be in Oamaru was for the completion of a programme designed to assist in reducing Mr Forsyth’s reoffending.

[6] As the Judge in his sentencing remarks said in the District Court, Mr Forsyth had been originally sentenced to prison for breaching protection orders in respect of the same complainant and breaches of release conditions previously. And so the release conditions arose out of the breaches. The Judge took into account the appellant’s long history of breaching such orders in his sentencing remarks. The Judge said that he had decided that the appropriate starting point was the maximum sentence on each charge and because these events were separate, cumulative sentences were appropriate. I will return to that aspect of the sentencing later.

[7] The Judge considered that the only mitigating factor was the appellant’s guilty plea. Although the Judge did not directly identify the discount he gave for the guilty plea, looking at the resulting sentence, it seems clear it was 25 per cent. The Judge’s start sentence for both offending was, however, 12 months’ imprisonment in total. In fact, the total cumulative start sentence based on the maximum available to the Judge was two years’ imprisonment.

[8] It can be seen, therefore, that the Judge started with six month prison sentences for the offending on each occasion, half the maximum and then reduced the cumulative start sentence by the 25 per cent reflecting the guilty plea. That resulted then in a nine month sentence, four and a half months, one assumes, for each offence. The Judge then further reduced that nine month sentence to one of a total of eight months’ imprisonment to reflect the overall offending, again one assumes four months with respect to each.

[9] To return to the appellant’s submissions. They were firstly based on the complaint that by starting with the maximum sentence, the Judge had identified this offending as the most serious of cases.[1] Counsel submitted that the facts of this case including the background illustrated that this was not one of the most serious cases of its type. Given the fact that the Judge did not in fact adopt a start sentence set at the maximum, I reject these submissions.

[10] The appellant pointed out that the offending did not involve harassment, acting threatenly, drunkenly or violently towards the complainant and that cases which had those features were more appropriately given sentences of imprisonment in the region of that given to the appellant.

[11] Further, the appellant says that the prison term became manifestly excessive also when coupled with the release conditions imposed. The release conditions imposed by the Judge were that Mr Forsyth; attend and complete an alcohol and drug assessment and any recommending counselling; that he attend a departmental psychological assessment and complete any recommendations arising from that assessment; that he attend and complete a Porirua Living Without Violence programme; that he attend schedule appointments with mental health services; that he not consume alcohol or illicit drugs; that he not contact the victim of the offending directly or indirectly. It is the later order which the appellant says is unfair

_{to him.}

[12] In addition, the requirement to attend and complete the Porirua Living Without Violence programme is said to be unnecessary, firstly, because Mr Forsyth has attended such a programme previously, and secondly, his recent offending does not involve violence.

[13] To understand the orders made by the Judge both the sentence of imprisonment and the orders relating to release conditions, some context must be given from Mr Forsyth’s past offending. Apart from the current offending, Mr Forsyth has at least the following relevant convictions:

(a) in May 2012 two convictions for contravening a protection order; also then a breach of Court release conditions;

(b) in September 2011 resisting the Police; assault; three charges of breach of home detention conditions;

(c) in May 2011 three charges of breaching a protection order; a breach of Court release conditions; a breach of community work; and resisting the Police and disorderly behaviour;

(d) in November 2010 breach of Court release conditions;

(e) in March 2010 threatening behaviour; resisting the Police and contravening protection orders.

[14] In addition in 2009 there have been further breaches of community work and further convictions for breaching protection orders. In 2009 there were other convictions for assault; contravening protection orders; assaulting a female; breach of Court release conditions; threatening behaviour and threatening language. The appellant’s previous convictions go back to 2003.

[15] As I understand the position many of Mr Forsyth’s previous breaches of protection orders and some of the assaults and breaches of prison release conditions relate to same complainant who is also the complainant in this case.

[16] One of the difficulties faced by the sentencing Judge here is that the complainant at times appears to welcome the appellant’s attentions and at other times not. The appellant says that the release conditions will prevent him from seeing the complainant and also from seeing his children. While the release conditions clearly do prevent him from seeing the complainant, in my view, it is clear that they do not prevent him from seeing his children and if they had I would have found that condition both wrong in law and unnecessary.

[17] Counsel submits that the appellant’s lack of compliance should not be seen as wilful rebellion but an inability to stay away from the people he loves including his two children whom he wishes to play an instrumental part in educating.

[18] In my view, overall, the sentence was imminently justified. Whatever the complainant’s view, Mr Forsyth has orders which he must obey. He has constantly failed to obey them. It is not a question as he claims of him being prevented from seeing his children. Arrangements can be made and indeed should be made for him to see the children. What is prohibited is him seeing the complainant, Ms Hohaia. As I have said those orders must be obeyed and Mr Forsyth is well aware of that. The start sentence, overall, of 12 months’ imprisonment given Mr Forsyth’s background was well within the range available. Mr Forsyth has constantly breached Court orders and continuously refused to be subject to restrictions either by way of protection orders or release conditions imposed by the Court.

[19] The release conditions imposed by the Court subject to one comment were also in my view sensible and justified by the facts. There are protection orders in place which limit Mr Forsyth’s actions with respect to the complainant. The Judge understandably, and I am sure correctly thought, that continuing contact between Mr Forsyth and the complainant will inevitably result in further criminal complaints, further convictions for Mr Forsyth and further likely imprisonment. The release conditions, therefore, were generally designed to prevent further offending by Mr Forsyth.

[20] I note also that the complainant, Ms Hohaia, has filed an affidavit. With respect her view of the matter is, as the Judge noted, quite unrealistic. It is not going to be possible for Mr Forsyth to live with the complainant, particularly now, she says, she is in a new relationship. It should be possible, and I stress, desirable for Mr Forsyth to have sensible access to his children if he can stay crime free.

[21] I do not consider the prison sentence nor the non association release condition singularly or jointly are manifestly excessive or wrong in law or wrong generally.

[22] Mr Forsyth has, apparently, previously completed a non violence programme. In those circumstances, given he has not been violent recently, I agree there is little point to a further such condition.

[23] In those circumstances I delete from the release conditions the requirement that he attend and complete the Porirua Living Without Violence programme. Save

_{for that matter, the appeal will be dismissed.}

Ronald Young J

Solicitors:

M Robinson, Public Defence Service, Wellington, email: [e-mail]

A J Ewing, Crown Solicitor, Luke Cunningham & Clere, Wellington, email: [e-mail]

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[1] See Sentencing Act 2002, s 8(c).