Ferguson v Police
[2019] NZHC 2753
•24 October 2019
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI 2019-419-000069
[2019] NZHC 2753
BETWEEN RORY FERGUSON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 24 October 2019 Appearances:
R Quin for the Appellant A Alcock for the Crown
Judgment:
24 October 2019
ORAL JUDGMENT OF GWYN J
Counsel/Solicitors:
R Quin, Barrister, Hamilton Crown Solicitors, Hamilton
FERGUSON v NEW ZEALAND POLICE [2019] NZHC 2753
Introduction
[1] Rory Ferguson pleaded guilty to possessing ecstasy,1 possessing utensils for the use of methamphetamine,2 and assaulting a person in a family relationship.3 On 17 September 2019, Judge N D Cocurullo sentenced Mr Ferguson to seven months’ imprisonment. Mr Ferguson now appeals this sentence.
Offending
[2] Mr Ferguson and the victim had been in an on again off again relationship for approximately eight years. On 14 May 2019, Mr Ferguson and the victim were out driving in Morrinsville; Mr Ferguson was seated in the passenger seat and the victim was driving the vehicle. The pair got into a verbal argument and the victim began to drive poorly, crashing into a car and a sign.
[3] In an attempt to get the victim to stop driving, Mr Ferguson grabbed the steering wheel and steered the vehicle towards a tree. Eventually the vehicle was stopped and Mr Ferguson took over driving. While driving he slapped the victim to the head using a hat.
[4] After some time, the vehicle stopped for a second time, and the victim resumed driving. The victim drove a short distance before again stopping. Shortly after stopping the Police arrived and searched the vehicle pursuant to the Search and Surveillance Act 2012.
[5] In the vehicle the Police located a small black bag containing a methamphetamine pipe, a small amount of cannabis and a small amount of Gamma Butyrolactone (GBL) – a liquid form of ecstasy.
[6] Mr Ferguson admitted that the drugs and utensils were his and were for his own use. He also admitted hitting the victim.
1 Misuse of Drugs Act 1975, s 7(1)(a) and (2)(b). Liable to a term of imprisonment not exceeding three months, and/or a fine of up to $500.
2 Section 13(1)(a) and (3). Liable to a term of imprisonment not exceeding three months, and/or a fine of up to $500.
3 Crimes Act 1961, s 194A. Liable to a term of imprisonment not exceeding two years.
District Court
[7] On 17 September 2019, Mr Ferguson was sentenced in the District Court before Judge Cocurullo.4
[8] Judge Cocurullo accepted that for the purposes of sentencing he had two stark choices; to impose either intensive supervision or a sentence of imprisonment.5 Given Mr Ferguson’s history of poor compliance with community-based sentences and a lack of suitable electronically monitored considerations, the Judge was satisfied that a sentence of imprisonment was the least restrictive option.6
[9] The Judge took the assault of a person in a family relationship as the lead charge and for this offence adopted a starting point of six months’ imprisonment.7 This was then uplifted by two months to reflect the illicit drug charges and then uplifted by a further three months to reflect Mr Ferguson’s prior convictions, specifically three prior convictions for male assaults female, each of which involved the same victim.8
[10] The Judge was satisfied that Mr Ferguson was remorseful, having read the defendant’s letter which acknowledged he had slipped back into significant drug use, was sorry for his conduct and was pleased that his time in prison up until the date of sentencing had allowed him to get clean.9 For remorse the Judge reduced the sentence by one month. The Judge then applied the full 25 per cent discount to take account of the early guilty pleas.
[11] On the lead charge of assault on a person in a family relationship this resulted in a final (rounded) sentence of seven months’ imprisonment (with the standard and special release conditions recorded in the pre-sentence report).10 In regard to the charges of possession of GBL and possession of the methamphetamine pipe, the Judge sentenced Mr Ferguson to two months’ imprisonment on each charge, to be served concurrently.
4 Police v Ferguson [2019] NZDC 18961.
5 At [8].
6 At [11].
7 At [12].
8 At [12].
9 At [5].
10 At [12].
[12] Despite the end sentence qualifying as a short term sentence the Judge declined to consider a sentence of home detention as he had already determined that a sentence of imprisonment was the only available option and that an electronically monitored sentence would be “totally inappropriate”.11
Submissions
Appellant
[13] Mr Quin, for the appellant, argues that the sentence imposed by Judge Cocurullo was manifestly excessive.
[14] Mr Quin says that the starting point of six months’ imprisonment on the lead charge of assault in a family relationship was too high, the offending involved a single slap to the head and accordingly falls at the lowest end of the scale and should have been reflected in a lower starting point.
[15] Mr Quin also contends that the only way the Judge could have reached a starting point of six months was by factoring in the appellant’s previous convictions and the two other drugs charges. As such, any subsequent uplifts were effectively double counting, and ignored the principle of totality.
[16] Considering the remorse letter that Mr Ferguson wrote to the court, the insight he had into his offending, and a fairly positive pre-sentence report, Mr Quin suggests that an end sentence of four months’ imprisonment with release conditions would have been the least restrictive outcome appropriate in the circumstances.
Respondent
[17] Counsel for the respondent opposes this appeal on the ground that the end sentence was not manifestly excessive.
[18] Counsel submits that the starting point of six months’ imprisonment was not too high. Counsel points me to Edwards v Police, a case involving similar but more
11 At [13].
serious offending where the Judge adopted a starting point of nine months’ imprisonment, and says that relative to the offending in Edwards a starting point of six months was appropriate for the current offending.12 Counsel emphasises that, similar to Edwards, this case involves repeat offending against the same victim and warrants a deterrent sentence.
[19] Counsel also says that the uplifts applied by the Judge were warranted and were carried out with reference to the principle of totality, again noting that a history of drug offending and violent offending against the same victim supported a sentence that would deter future offending. In addition, counsel says that the Judge gave adequate consideration to the factors that warranted a discount, including both remorse and the guilty plea discount. Accordingly, counsel says that the end sentence was appropriate, and the appeal ought to be dismissed.
Law
[20] Pursuant to s 244 of the Criminal Procedure Act 2011 (CPA), a defendant may appeal against sentence. The appeal is to be heard by the first appeal court, which here is the High Court (s 247).
[21] Under section 250(2) of the CPA this Court must allow the appeal if satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[22]In any other case, the Court must dismiss the appeal.13
[23] The Court of Appeal in Tutakangahau v R has recently confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the
12 Edwards v Police [2019] NZHC 932.
13 Criminal Procedure Act 2011, s 250(3).
Summary Proceedings Act 1957.14 The Court of Appeal held that, the measure of error that must be shown, is that the sentence is “manifestly excessive”.15 The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.
Analysis
[24] The appellant contends that Judge Cocurullo erred in adopting a starting point that was too high, and that such a high starting point could only have been reached if the Judge had taken into account the additional charges Mr Ferguson faced, as well as his prior convictions. Judge Cocurullo then gave an uplift for these factors, and the appellant says that the Judge also erred in this respect as the uplift effectively amounted to double counting.
[25] Judge Cocurullo adopted the charge of assault on a person in a family relationship as the lead charge. As the charge with the highest maximum penalty this is the correct approach. Section 194A – assault on a person in a family relationship – is a relatively new offence, inserted into the Crimes Act 1961 in December 2018.16 Accordingly, there are very few sentences pursuant to this section that are capable of acting as comparators, one of the few being Edwards, referred to me by the respondent.
[26] Prior to the enactment of a discrete offence for assault on a person in a family relationship, violent offending against a domestic partner would typically result in a charge of male assaults female.17 This is an offence that has been identified as covering a broad range of offending with varying degrees of culpability, often resulting in difficulties when determining an appropriate sentence. This was acknowledged by Brewer J in Wati v R:18
14 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26]–[27].
15 At [26]–[27].
16 Family Violence (Amendments) Act 2018, s 25(1).
17 Crimes Act 1961, s 194(b).
18 Wati v R [2015] NZHC 2064 at [18]. Cited with approval by the Court of Appeal in Goodman v R
[2016] NZCA 64 at [12].
[18] As to the male assaults female charges, I note there is no tariff for this offence. For single offences, a sentence of imprisonment can range from two months to 12 months’ imprisonment. It is never easy to fix a starting point in cases involving domestic violence because the circumstances of cases vary so widely and sentencing Judges must work within a range available to them for multiple offences…(footnotes omitted).
[27] Brewer J’s remarks in regard to the offence of male assaults female are applicable to offending under s 194A as the offence carries the same maximum penalty and will also capture family violence that ranges in both type and culpability. I am guided by Brewer J’s approach and accept that an appropriate sentence will fall somewhere within the range of two to 12 months’ imprisonment.
[28] Mr Quin, for the appellant, contends that the offending involved violence that may be described as falling toward the lower end of the spectrum. Although the offending involved a slap to the head, I agree with that submission. Despite this, the respondent says that with regard to Edwards a starting point of six months was appropriate. Edwards involved, among others, a conviction under s 194A, where Mr Edwards had punched his partner to the shoulder and then to the jaw. In regard to this offence the Judge adopted a starting point of nine months’ imprisonment. On appeal the Judge upheld the starting point but noted that it fell toward the top of the available range.19 The determinative factor leading the Judge to uphold the starting point – and ultimately the sentence – was the fact that the offending represented the seventh violent offence against the same victim in less than two years, and as such a deterrent sentence was necessary.20
[29] The offending in Edwards was of a more serious nature than the current offending; a slap to the face with a hat being less serious than multiple punches. A starting point of less than nine months is therefore warranted. I am satisfied that a starting point of between four and seven months is appropriate.
[30] Having regard to the determinative factor in Edwards, namely the need to deter future offending, I am satisfied that a starting point should fall toward the lower end of the identified band as this factor does not feature in the current offending to the
19 Edwards v Police, above n 12, at [7].
20 At [7] – [8].
same degree. Mr Ferguson has three prior convictions for male assaults female, all against the current victim. However, the most recent of these was in 2013, and Mr Ferguson, in his letter to the Court, acknowledges that the offending was a result of his relapse into drug addiction, a habit he has since beaten whilst incarcerated. In these circumstances, a starting point of four months’ imprisonment is appropriate.
[31] I am satisfied that an uplift is warranted for the two drug-related convictions. Taking into account the principle of totality I am satisfied that the uplift of two months applied by Judge Cocurullo was appropriate. I am also satisfied that an uplift is required to take into account Mr Ferguson’s prior drug related and violent offences. However, as the most recent of these convictions was in 2013, I am satisfied that an uplift of one month is appropriate.
[32] Judge Cocurullo applied a one month deduction to take into account remorse and personal mitigating factors, and applied the maximum discount of 25 per cent for early guilty pleas. I see no reason to disturb these deductions. This results in an end rounded sentence of four months’ imprisonment.
[33] Although this results in an overall deduction of only three months, it is equivalent to a 43 per cent deduction in sentence. In these circumstances I am satisfied that the District Court erred in sentencing the appellant to seven months’ imprisonment, and that the end sentence was manifestly excessive.
Result
[34] The appeal is allowed. The appellant’s sentence of seven months’ imprisonment is quashed.
[35] On the charge of assault on a person in a family relationship you are sentenced to four months’ imprisonment with the standard and special release conditions specified in the pre-sentence report.
[36]On the charges of possessing GBL and possession of utensils for the use of
methamphetamine you are sentenced on each charge to two months’ imprisonment, to be served concurrently with the four month term.
Gwyn J
4
0