Forrest v R [2009] NSWCCA 11

New South Wales Court of Criminal Appeal

CITATION: Forrest v R [2009] NSWCCA 11

HEARING DATE(S): 4 December 2008

JUDGMENT DATE: 12 February 2009

JUDGMENT OF: Hodgson J at 1; James J at 27; Price J at 28

DECISION: (1) Application for leave to appeal against sentence granted. (2) Appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW – Application for leave to appeal against sentence – Charge of murder – Plea of guilty to manslaughter accepted on the basis of provocation – Whether sentencing judge erred in not taking account of psychiatric case and element of defence of another person – Whether sentence manifestly excessive.

CATEGORY: Principal judgment

CASES CITED : R v Alexander (1994) 78 A Crim 141 Green v The Queen (1997) 191 CLR 334

PARTIES: Mark Allan FORREST (Applicant) REGINA (Crown)

FILE NUMBER(S): CCA 2007/2528

COUNSEL: T GAME (Applicant) L BABB SC (Crown)

SOLICITORS: Legal Aid Commission of NSW (Applicant) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 1696/2007

LOWER COURT JUDICIAL OFFICER: Studdert AJ

LOWER COURT DATE OF DECISION: 4 April 2008

LOWER COURT MEDIUM NEUTRAL CITATION: [2008] NSWSC 301

IN THE COURT OF CRIMINAL APPEAL CCA 2007/2528 SC 1696/07

HODGSON JA JAMES J PRICE J

12 FEBRUARY 2009 FORREST, Mark Allan v R Judgment 1 HODGSON JA: This is an application for leave to appeal against a sentence imposed by Studdert AJ on 4 April 2008. The sentence imposed was for the offence of manslaughter committed on 26 January 2007; and it was a non-parole period of five years nine months to date from 27 January 2007 with a balance of term of one year nine months, making up a total sentence of seven years six months. The non-parole period expires on 26 October 2012, and the head sentence expires on 26 July 2014. 2 The applicant stood trial in the Supreme Court at Newcastle on 18 February 2008, before his Honour and a jury, charged with murder. He offered to plead to manslaughter when arraigned, but his plea was not accepted. After the trial had proceeded for a day and a half, the prosecutor accepted the plea. The applicant was re-arraigned, he pleaded not guilty on the indictment to murder but guilty of manslaughter; and the plea was accepted and the jury discharged. 3 In subsequent exchanges, it was indicated to the sentencing judge that the Crown had accepted the plea to manslaughter on the basis of provocation. 4 The facts of the offence are set out as follows in the judgment of the sentencing judge: [3] The victim of the crime here to be considered was Brett John Crittenden. He suffered fatal injuries when stabbed by the offender on the night of 26 January 2007. The stabbing took place in the grounds of a private residence at 52 Elsiemer St, Long Jetty. The offender stabbed the deceased using a kitchen knife, with a blade some 21 centimetres long and with a handle approximately 13 centimetres long. After the stabbing the deceased was taken by ambulance to Gosford Hospital, where he died.