R v Ferguson

[2007] NSWSC 949

CITATION:	R v Ferguson [2007] NSWSC 949
HEARING DATE(S):	24/07/07, 27/08/07
JUDGMENT DATE :	27 August 2007
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J at 1
DECISION:	Sentence see pars 26-27
CATCHWORDS:	CRIMINAL LAW - Manslaughter - Guilty Plea - Sentence Assessed
PARTIES:	Regina v Michael David Ferguson
FILE NUMBER(S):	SC 2006/2845
COUNSEL:	A. McCarthy (Crown) P.M. Winch (Prisoner)
SOLICITORS:	Solicitor for Public Prosecutions (Crown) Legal Aid Commission (Prisoner)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Monday 27 August 2007

2006/2845 REGINA v MICHAEL DAVID FERGUSON

SENTENCE

1 HIS HONOUR: Michael David Ferguson, you appear for sentence for the manslaughter of Karyn Stanton at what was her and your home at Cambridge Gardens. Your act occurred on 13 May 2006 and death followed on 15 May 2006.

2 It is important to specify that your culpability for the crime of manslaughter is founded upon the death resulting from acts of yours which were unlawful, that is they amounted to an assault, and they were dangerous in a sense which does not require definition. It is not an element of the crime of which you are convicted that you intended to cause really serious physical injury to Ms Stanton.

3 I am required to find facts, not inconsistent with your guilt of manslaughter, for the purpose of sentence. As can frequently be done, there is a written agreement of facts which in effect present the Crown allegations against you and your admissions of the truth of those allegations, and I am content to accept the agreed facts as my findings.

4 The facts are lengthy and detailed but I consider that it is significant for you and for others here present to be apprised of them. It is especially important for the family of the deceased and your family to be aware of these facts and for those reasons I incorporate the entirety of them in these reasons and I quote them.

As of 13 May 2006 the offender, Michael Ferguson, aged 45 years (born 9 June 1960) and the deceased Karyn Stanton, aged 44 years (born 9 October 1961), had been involved in a de-facto relationship for about 18 years. They lived together in a free standing house at 41 Grange Crescent, Cambridge Gardens, a suburb of Penrith.
The deceased was a Registered Nurse who specialised in intensive care. She worked shift work at various hospitals in the area in which she lived through, in recent years, a nursing agency. According to the accused and his close family, the deceased had a long term problem of abusing prescription medication. The victim’s treating Doctor states that the victim, being a shift worker, suffered from insomnia for which she was prescribed Mogadon and Endep. She had been a regular user of Mogadon for 15 years and had developed a physical dependency.
The offender was employed on shift work at a glass factory.
About a week before the death of Karyn Stanton, the offender complained to a friend, Ian Thomas, that the deceased was abusing prescription drugs again.
On Friday 12 May 2006, the offender and the deceased went to the Pioneer Tavern in Penrith for lunch where they met the offender’s parents. His parents later told police that the deceased appeared to be “under the influence” of a drug of some kind. His mother said she spoke to the deceased about this when they went to the ladies toilet.
About 5.30 pm on Friday 12 May 2006, the next door neighbour, Greg Creighton, heard a disturbance from the offender’s home. He heard the offender yelling aggressively and loudly a number of times. He stated he also heard a faint female voice saying the words: “Please, no more” and “Stop”.
On Friday 12 May 2006 there was a struggle between the accused and the victim, resulting in the accused throwing the victim off him and towards the pool table where she hit her head on the leg of the pool table. After some time the victim got up off the floor and entered the kitchen area and obtained some tablets from the fridge.
There was a further struggle between the accused and the victim when the accused forced open the mouth of the victim in an attempt to remove the tablets from the victim’s mouth, during this struggle the victim was hit by the accused receiving an injury to her ear.
On the morning of Saturday 13 May 2006, the offender and the deceased had been painting together at a house in Glenmore Park recently bought by the offender as an investment property. At about 1pm they were both seen walking independently to the offender’s car.
During the preceding week the offender had arranged to meet his friend Troy Howard at his home at Cambridge Gardens at about 1.30pm that day.
At about 1.30pm on Saturday 13 May 2006, Mr Howard arrived at the accused’s home and shortly after, the accused and the victim arrived home. Mr Howard had been a close friend of the accused and the victim for the past 12 years. When he met the accused and victim, Mr Howard believed that there was something wrong between them and sensed there was a great deal of tension between them. He was of the view that the victim looked upset. He noted that she may have had a small cold sore on her bottom lip, but did not see any injuries. He left their home at about 1.40pm.
During the afternoon on Saturday 13 May 2006 the accused and the victim had a further argument and struggle resulting in the victim hitting her head against the computer table. There was a struggle during which they each pulled the other’s hair. The accused grabbed the victim by the shoulders and upper arms very tightly and shook her.
The accused then walked to the back door and heard the victim walk past him and then the accused heard a loud noise and went into the lounge area and saw a chair which was overturned. The victim was face down. The accused assisted the victim from the floor to the lounge and observed an injury across the bridge of her nose and obtained a face washer to wash her face. The accused noticed that the victim was snoring. Moments later the victim was no longer breathing and at about 2.37pm on Saturday 13 May 2006, the accused called emergency services on “000” and requested an ambulance. Among other things he told the operator:
(a) “my wife, we were arguing, and she’s fallen and she’s unconscious”
(b) “we were arguing, when she fell she sort of like hit her head on the, or nose on the, on the lounge and she just, I thought she was laying down there but she wouldn’t get up.”
He also told the operator his wife wasn’t breathing. He was instructed in CPR over the phone.
The first Ambulance arrived at 2.47pm whilst the offender was still on the telephone to the “000” operator. The deceased was lying on the floor next to the lounge. She was not breathing, had no pulse, was not responsive and appeared to have little or no brain activity.
Five Ambulance Officers attended the scene and treated the deceased. They reported various conversations with the offender, including as follows:
(a) “she stopped breathing, she just collapsed and stopped breathing”
(b) “she collapsed when we were arguing, she fell against…
(c) “I pushed her”
(d) “she threw something at me so I threw something back at her, she fell over and hit her head on the chair” (indicating the lounge)
(e) When asked the state of the deceased when she woke that morning, the offender said, “she was drowsy and heavily sedated and kept falling into things”
(f) When asked if there was any chance that the deceased had taken any medication, the offender said, “I don’t know, she hides stuff.”
(g) When asked about an amount of hair in the kitchen, the offender said “it’s hers and mine, we’ve had an argument.”
One Ambulance Officer Jane Nicholls recalls the following conversation with the offender:
“She fell and hit her head on the computer desk this morning” I asked “How long she like this before we arrived?” He said, “Ten minutes, we had a fight, she threw things at me and I threw things at her. She fell backwards and hit her head on the chair.” I said, “what was she like after that, was she still talking with you?” He said, “She said that she felt tired so I picked her up and put her on the lounge, and her nose was bleeding. I was cleaning the blood from her nose.” I said, “Was she still talking to you?” He said, “No she was snoring.” I said, “How long was that?” He said, “Twenty minutes.”
The deceased was taken to the emergency section of the Nepean Hospital.
The offender attended the Hospital where he told medical staff that he had an argument with the deceased who collapsed and hit her head on the lounge.
The offender’s mother, Pamela Ferguson, attended the hospital and spoke with her son. Later she told police, in her witness statement that her son told her, among other things, that he had slapped the deceased and pulled her hair.
Police were called to the hospital where they spoke to the offender. He told police, among other things, that he and the deceased had been arguing for days about her abuse of medications. He said that they affected her motor skills. He said she couldn’t walk properly or talk properly. He also told police in a recorded interview at the hospital, that he and the deceased were arguing again on 13 May 2006 he said: “I grabbed her, shook her, asked her what are you doing?”
Upon arrival at hospital, the deceased was under the care of Dr James Mallows. He noted the following injuries:
(i) Boggy swelling over the left side of head and face with no significant lacerations.
(ii) Boggy swelling over the right side of head and face with no significant lacerations.
(iii) Bruising and swelling over the back of the head with no significant lacerations.
(iv) Bruising to the right upper arm.
(v) Swelling to the right hand and wrist.
(vi) Swelling to the left hand.
(vii) Bruising to the right upper thigh.
(viii) Bruising to the left upper thigh.
(ix) Bruising to the left shin.
Dr Mallows reports:
“CT scan of the head demonstrated severe traumatic brain injury. There were multiple brain haemorrhages, more severe on the right. There was significant swelling to the brain. There was midline shift to the left. No skull fractures were seen. There was extensive haematoma of the scalp on both sides of the head extending forwards to the face and back to the back of the head.”
The deceased was admitted to the Intensive Care Unit under the care of Dr Vidyasagar Casikar, neurosurgeon. She was breathing with the aid of a respirator. She was unconscious with fixed dilated pupils. She did not regain consciousness. Her life support was turned off and she died on the morning of 15 May 2006.
Dr Neil Langlois conducted a post mortem examination of the deceased on 16 May 2006. He described the deceased as weighing 64 kilograms (10 stone) and measuring 168 cm (5’6”) in height and of average build. He found multiple bruising to the body, head injuries, mild brain swelling and brain damage. He prepared a Post Mortem report outlining his observations, findings, opinions and conclusions, including the following:
(i) The cause of death was hypoxic brain damage (hypoxic encephalopathy), ie the brain was starved of oxygen causing brain death.
(ii) The deceased had suffered a head injury as evidenced from:
(iii) bruising of both ears including a rupture of the right ear drum and bruising under the chin, and
(iv) bilateral subdural haemorrhage (bleeding over the surface of the brain), and;
(v) microscopic evidence of traumatic diffuse axonal injury: changes in the axons (processes) of nerve cells indicating that there had been mechanical injury of the brain.
The presence of bilateral ear bruising would be regarded as unlikely to be accidental as the ears are “protected” areas between the shoulder and skull. Similarly, under the chin is a difficult area to injure in a fall.
The severity of the changes to the brain of the deceased that can be attributed to trauma, generally would not be regarded as sufficient to have necessarily, by themselves, to have caused hypoxic brain damage by (a) primary cardiac arrest, or (b) primary respiratory arrest.
The examination of the heart found a single area of fibrosis (scarring) in the left ventricle (main pumping chamber) and an abnormality in the right ventricle. This could indicate the presence of a disorder, namely Arhythmogenic Right Ventricular Cardiomyopathy (ARVC). There is an increased risk of sudden death due to primary cardiac arrest when there is any scarring of the left ventricle of the heart or if ARVC is present.
Dr Langlois came to the conclusion that “if no other explanations are forthcoming it would appear that death in some way resulted from a traumatic head injury, with the pattern of bruising being hard to reconcile with a fall or falls.” Dr Langlois also said that the underlying heart condition may have contributed to her death.
The offender was arrested by police at the Nepean Hospital. He was taken to Penrith Police Station. He declined to answer further questions at the police station. Forensic samples were taken from the accused. He was examined by a police doctor who noted no recent injuries on him.
The offender was then charged and refused bail.

5 A victim impact statement has been presented by the deceased’s sister Belinda Stanton. I receive that statement and acknowledge it as presented on her own behalf and the family. The law does not permit any increase in sentence by reason of the content of such a statement but it is an opportunity for a public expression of the consequential effects of the crime committed and for the Court on behalf of the community to express its condolences. I am well aware that mere words are no comfort but that is the only facility available to me and I express the sympathy of the Court for the suffering that is no doubt being felt.

6 It scarcely needs to be said that, whilst the statement of the feelings of the family victims is not doubted, it is my duty to impose sentence upon you, the offender, in accordance with the facts which I have specified.

7 There is one matter which emerged and needs to be addressed. In reference to the effect upon the brothers of the deceased it was stated that “equating a length of time for the loss of their sister will never be appropriate in their eyes”.

8 It needs to be understood that in no sense is my task to evaluate Karyn Stanton’s life or to proportion the sentence to some such evaluation. No sentence imposed upon an offender convicted of unlawfully causing death is intended to reflect the value of the life lost. Every human life is infinitely precious and the fact that a sentence is expressed in terms of years does not detract from that truth nor does the length of sentence reflect any diminution in the preciousness of the life which has been lost through the offence.

9 In helpful written submissions the Crown Prosecutor and your counsel have canvassed the legislative litany of defined aggravating and mitigating factors which are hypothesized in an applicable statute.

10 The administration of violence by you is an ingredient of your crime. Your sentence should reflect that. However, particularly in the light of the medical evidence including the report of post-mortem examination I consider that, on the balance of probability it has been shown that the injuries which you inflicted would not have been likely to have such a catastrophic result on a person not affected by particular underlying vulnerability. Nevertheless, the injuries which you inflicted did cause the death and I regard it as significant that you were aware that Ms Stanton was suffering affliction and ailment.

11 Leaving aside a traffic offence concerning consumption of alcohol, you have only one prior conviction and that dates back some twenty seven years. It is true that it is a conviction for an assault which occurred in a domestic setting although the victim in that case was neither your partner nor a female. It is not necessary to recount the details which are before the Court and, as I said this morning, in the circumstances I regard this conviction as offering no impact upon sentence and it is disregarded.

12 Another specific matter to which I should refer is a submission on your behalf that there was provocation of some kind emanating from Ms Stanton by reason of her dependence upon an ingestion of excessive medication. I reject the submission. I find that the death occurred during a period of, as the psychologist Ms Collins put it, “escalating emotionality”. It was you, however, who injected physicality into that situation.

13 In addition to the absence of relevant prior conviction, there are matters advanced on your behalf in mitigation which I address.

14 You have, on the evidence, always been in gainful employment. There is an abundance of written testimony as to your otherwise general good character from a very broad spectrum of sources. Those sources include favourable references from your parents and children, an ex-wife and her present husband, friends, workmates, relatives and an employer. You are entitled to have these matters weighed in your favour and I will do so.

15 It should be expressly acknowledged that the Crown has accepted and does not seek to dispute a series of matters put forward on your behalf in the written submissions. In addition to some of the things which I have mentioned, it is not disputed that you have been a reliable employee, a good parent and a supportive partner. The lastmentioned is of course qualified by the commission of the subject offence.

16 It is conceded that you are very unlikely to re-offend and have very good prospects of rehabilitation. Those words of emphasis are taken as quotes from what is conceded by the Crown.

17 Further, it is not disputed that you are genuinely remorseful. Your plea of guilty is an element of confirmation of that fact. The plea of guilty to manslaughter was offered as soon as it was practicable after it was made known to you that the Crown would accept that plea. As well as the quality of confirmation which I have mentioned, the law provides that your sentence should be reduced to reflect what is usually called the utilitarian value of the plea. That is, you have saved the community the expense of a trial and you have saved the witnesses from the ordeal of giving evidence. You will have a discount against sentence which is otherwise assessed for this reason.

18 It has been observed that of all crimes, manslaughter has the widest scope within which punishable behaviour may occur. Counsel have drawn my attention to some other instances of sentence, including some imposed in the past by me, but it is not necessary to canvass cases. Every offender and every offence is different and my task is to determine what is appropriate for you.

19 There is applicable legislation concerning the proportion between the non-parole period and the balance of term during which it is possible that you may be released to parole. That proportion is departed from in favour of reducing the full time custody element where there are, what are termed special circumstances. The submission on your behalf is that I should adopt an observation of Ms Collins about the benefit to you of a longer period on parole. That may contribute to creating a special circumstance within the sense of the legislation but I am not persuaded that I should find special circumstances on the material which is before me in this case.

20 I recognize the references by counsel to the statistics collected by the Judicial Commission. By reason of the nature of the crime of manslaughter which I have mentioned, the statistics are not of great utility. They do not become so because arithmetic enables a median to be calculated.

21 Some years ago it was said that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party. That observation remains of force and is a constant principle which is applicable to you.

22 Although, as I have said, it is accepted that you did not intend to cause serious harm, a factor which I consider is significant and elevates the seriousness of your offence is that you chose to exercise your superior physical strength in the assault of your partner who was a female of slight physical attributes and who you knew was ill. I am not suggesting that you were conscious of the particular vulnerability which made Ms Stanton susceptible to fatal consequence from blows which might not have had that effect on others.

23 I have not ignored that you both had some martial arts training and skills but the evidence and the statement of your neighbour Mr Creighton persuades me that you were on this occasion angry and aggressive, and I am unpersuaded that your unrestrained anger is mitigated by the circumstance that it apparently had a genesis in disapproval and frustration when you discovered that Ms Stanton was consuming unnecessary medication.

24 Taking into account all the facts and circumstances including matters of mitigation but with the exception of the utilitarian value of your plea of guilty as abovementioned, I would assess an appropriate sentence of seven years imprisonment. For that excepted factor, I allow what is generally regarded as appropriate for such a plea at the earliest opportunity of twenty-five percent. The orders which I make concerning non-parole period and balance term have been slighted rounded.

25 You have been in custody continuously since arrest on 13 May 2006 and your sentence will commence then.

26 Michael David Ferguson, for the manslaughter of Karyn Stanton you are sentenced to imprisonment consisting of a non-parole period of four years commencing on 13 May 2006 and expiring on 12 May 2010 and a balance term during which you may be released to parole of one year and three months commencing on 13 May 2010.

27 The earliest date of eligibility for release to parole is specified as 12 May 2010.

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