Ferguson v Police - [2015] NZHC 644

IN THE HIGH COURTOF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000005 [2015] NZHC 644

BETWEEN
JAMIE KENT FERGUSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 31 March 2015

Appearances:

A Stevens for Appellant
R D Smith for Respondent

Judgment:

1 April 2015

JUDGMENT OF GENDALL J

Background

[1] Mr Ferguson first appeared in the District Court at Dunedin on 31 July 2014 on a charge of threatening to kill. He entered a plea of not guilty. On 10 December
2014, that charge was amended to one of threatening behaviour.1 Mr Ferguson’s not

guilty plea was subsequently vacated and a plea of guilty was entered, on the charge of threatening behaviour, on 3 February 2015. Judge Crosbie sentenced Mr Ferguson to 12 months imprisonment and six months release conditions with special conditions he take such treatment, counselling programme and interventions as may be directed including psychological assessment and any psychological counselling.

[2] Judge Crosbie, in giving his decision on sentencing, set out the facts of the offending:2

1 Crimes Act 1961, s 308(a).
2 Police v Ferguson [2015] NZDC 1599.

FERGUSON v NEW ZEALAND POLICE [2015] NZHC 644 [1 April 2015]

… The victim in the matter is your ex-partner. You had previously been in a relationship for eight to nine months. About 8.00 pm on 30 July, her sister posted a picture of she and her brother on the internet. You view the photo, you became jealous believing she had a new partner and shortly thereafter sent a text message to her phone asking her to come outside. She looked out the window but did not see you. She was home alone at the time.

[4] When she refused to go outside you continued texting and calling her cell phone stating you were going to come around to her address and kick the door in. You used words such as you will kick the door in and find out who the, and there is an obscene word there, who the person was. She felt threatened and subsequently locked the doors.

[5] While she waited inside the address, you again phoned her and continued to send her menacing text messages. As a result of the threats, it made her flee the house and hide in a nearby bush. She phoned family who contacted the police and she was so scared she would not come out of hiding until she saw the police arrive.

[6] When the police arrived, you admitted the offending. You said you were angry and jealous as you thought she had a new boyfriend.

[3] The threat that was made by the appellant via text was, “I’ll kick the door in and find out who that cunt is”. Although as noted the appellant had attempted to ring the victim as well, she did not answer her phone.

Decision of Judge Crosbie on Sentencing

[4] It seems clear here, that Mr Ferguson’s past criminality weighed heavily on

the Judge’s decision when sentencing. He stated:

[10] Holding you to account is also…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ferguson v Police

Details

AGLC: Ferguson v Police [2015] NZHC 644
Case: [2015] NZHC 644
Decision Date: 1 April 2015

CaseChat Overview and Summary

The appeal in Ferguson v Police was heard by Gendall J in the High Court of New Zealand. The appellant, Jamie Kent Ferguson, was appealing the sentence imposed by Judge Crosbie in the District Court, where he was sentenced to 12 months imprisonment and six months release conditions for the charge of threatening behaviour. The legal issues before the court were whether the starting point and uplifts applied by Judge Crosbie were appropriate and if the sentence imposed was manifestly excessive. The court examined previous cases involving similar charges to assist in determining the appropriate sentence.

Gendall J found that the starting point of eight months was too high, considering the nature of the threat made by the appellant and his previous offending. The court determined that a more appropriate starting point would be four months. The uplifts applied by Judge Crosbie were also deemed excessive, and a two-month uplift for previous offending and the fact that the appellant was subject to release conditions was considered appropriate. The court also found that the appellant should receive a 25% discount for his early guilty plea, reducing his final sentence to four months. The appeal was allowed, and the original sentence of 12 months was quashed, replaced by a sentence of four months imprisonment and three months release conditions.

Orders