FOREST v CROWN [2016] NZHC 3198

FOREST v NEW ZEALAND POLICE [2016] NZHC 3198 [22 December 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2016-409-000155[2016] NZHC 3198BETWEEN JERICHO JARRAH FORESTAppellantAND NEW ZEALAND POLICERespondentHearing: 22 December 2016Appearances: A J McKenzie for AppellantD L Elsmore and C J Bernhardt for RespondentOral Judgment 22 December 2016ORAL JUDGMENT OF DUNNINGHAM J[1] Mr Forest appeals his sentence of six weeks' imprisonment for contempt ofCourt. He says that:(a) the sentence was manifestly excessive;(b) the learned Judge erred in categorising the defendant's contempt astowards the serious end and the starting point of 10 weeks as manifestly excessive; and(c) the Judge erred in not sentencing the defendant at the rise of the Court, as required under s 365(2) Criminal Procedure Act 2011, and therefore he acted unlawfully in remanding the defendant for sentence when no such power exists.[2] The circumstances in which Mr Forest was found in contempt of Court areset out in the District Court Judge's sentencing notes. He explained thatMr Forest's brother was being tried before a jury on charges ofsexual violation by rape, sexual violation by unlawful sexual connection and a charge of male assaults female.[3] After the jury had delivered verdicts of guilty on the first three charges, Mr Forest rose from the seating in the public gallery and he advanced forwards in the direction of the jury in a very aggressive manner, shouting at the jury the words,"Fuck you cunts, fuck you." The Judge explained that the jury was noticeably upset.He had the jury removed as soon as possible from the Courtroom while the security guards intervened and restrained Mr Forest. He made inquiries as to how the jury were coping and he was advised by jury attendants that the jury members were shocked, upset and one of the female jurors was reduced to tears.[4] The Judge said he had to allow time for the jurors to compose themselves before asking them to return to complete the delivery of their verdicts. The Judge determined that Mr Forest was in contempt of Court because he behaved in a threatening and intimidating way towards the jury while it was in the process of delivering its verdicts. Of particular concern was the fact that because the abuse was directed at the jury whilst still delivering their verdicts, it gave rise to a risk of influencing those verdicts. For that reason the Judge concluded that this was conduct that strikes at the very heart of our administration of justice.[5] In sentencing the Judge noted that the maximum sentence under s 365 Criminal Procedure Act 2011 for such instances of contempt, was three months, although he noted that significantly higher penalties would have been available if this had been approached as a charge under s 117 Crimes Act 1961 as an attempt to influence a jury.[6] He then set a starting point of 10 weeks imprisonment being near to the maximum sentence. He did not uplift for previous convictions. While these were indicative of previous aggressive and disorderly conduct, I assume this was because they did not have the character of contempt. He then reduced the sentence by four weeks for mitigating factors, including the fact that Mr Forest acted in the heat of the moment because he was distressed that his brother was found guilty, and that he had expressed regret and remorse through counsel.Discussion[7] I will deal first with the technical ground of appeal, that is, the third ground. I do not consider that this has merit. Mr Forest was sentenced at the first realistic opportunity after the offending behaviour occurred. The offending behaviour occurred late on a Friday night when the jury had completed its deliberation. I do not think the Judge can be criticised for allowing Mr Forest the weekend to consult with legal counsel and be properly represented when the matter was called on the following Monday morning to deal with the appropriate sentence.[8] I also note that Ms Elsmore has drawn my attention to the decision inMair v District Court at Wanganui,1 where it was held that the District Court had the power to remand a contemnor prior to passing sentence. In any event, there is no suggestion that the time of sentencing affected the sentence length as the time served counts towards the end sentence.[9] Turning now to the actual length of sentence, I accept that the starting point was high. Section 365 is designed to deal with one off outbursts such as this. However, I do not consider that this outburst was at or near the worst of its type, which under the sentencing principles in s 8(c) of the Sentencing Act 2002 would have required a sentence near to the maximum of three months, and which, in effect, was what the Judge imposed. That said, it did have the strongly aggravating feature of intimidating people who are vital players in the justice system, being the jury. It was, therefore, an interference in the administration of justice. I therefore think it was appropriate to treat it as behaviour which was more serious than behaviour which is simply rude and disruptive in nature, or offends the dignity of the Court, such as was in the case in the decision Greer v Police.2[10] In my view a starting point of half to two thirds of the maximum sentence would have been appropriate, that is, a starting point of six to eight weeks to reflect the seriousness of the contempt. I also consider that in reaching the end sentence, it is not clear whether the Judge had taken full account of the steps by Mr Forest to purge his contempt.1 Mair v District Court at Wanganui [1996] 1 NZLR.2 Greer v Police HC Palmerston North 17/10/1997 AP 53/97.[11] It is well accepted that any penalty for contempt must take into account any such action. In this case the apology relayed through counsel was such a step. That does not necessarily mean that no penalty should be imposed after that. As Pankhurst J said in the decision ofMatika v New Zealand Police,3 "There may be cases where the behaviour of awitness, despite a subsequent purging of the earlier failure, will still make itappropriate for the balance or part of the sentence to be served."[12] In Matika, Ms Matika refused to give evidence in a criminal trial and was sentenced to six weeks imprisonment. However, she subsequently relented and gave evidence and the trial was able to proceed as normal. In that case it was appropriate to waive the balance of the sentence of imprisonment as the purpose of the imprisonment had been achieved. However, in this case, unlike in Matika, the subsequent apology does not undo the effect Mr Forest's actions had on the jurors,nor the more general harm to the community if such outbursts are seen to go unpunished so long as an apology is forthcoming within a reasonable time.[13] However, an apology does normally attract a significant discount in sentencing for this type of behaviour. I note in the decision ofTamihere v New Zealand Police,4 which Ms Elsmore drew to my attention, Whata J noted a genuine apology ought to attract a substantial discount and, in that case, a discount of 18 days on a sentence of 28 days was described as "generous" but not disturbed on appeal.[14] In my view, therefore, a genuine apology would normally at least halve the sentence that might otherwise be imposed for contempt for such an outburst. Here it is not clear that the apology and remorse that has not been considered in light of whether it purged the contempt, but only in a more general sense of being a mitigating factor in sentencing. This is not a case where I consider it purged that contempt entirely but I do think it should have reduced the starting point by a greater percentage basis.3 Matika v New Zealand Police [2014] NZHC 1127.4 Tamihere v New Zealand Police [2016] NZHC 539.Result[15] In all the circumstances I consider the starting point was too high and the effect of the apology was given too little weight on a percentage basis. I would haveset a starting point of eight weeks' imprisonment in light of the maximum sentenceof three months, and I would have reduced that by four weeks in terms of the mitigating factors and the effect of the apology on the contempt. That leaves asentence of four weeks' imprisonment. Given that is two thirds of the sentenceactually imposed, it is appropriate that that the different sentence be substituted.[16] I also note that an issue arose as to whether the provisions of s 86 Parole Act 2002 applied to a sentence for contempt. Having reviewed the Parole Act it is clear, because of the provisions of s 9, that the provisions of the Act as to early release apply to sentences for contempt. In practical terms it may not be possible for them to apply to short term sentences imposed in the midst of Court proceedings but here, where a relatively lengthy sentence was imposed, I see no reason why the early release provisions of the Parole Act should not apply and I direct that they are to apply to this sentence. Mr Forest will be eligible for early parole under s 86 of the Parole Act 2002.[17] Accordingly, the appeal is allowed. A sentence of four weeks' imprisonment is substituted for the current sentence of six weeks' imprisonment.Dunningham JSolicitors:Raymond Donnelly & Co, ChristchurchA J McKenzie, Barrister, Christchurch