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 important because you are considered by the Probation Service to be a high risk family violence offender.   I am told by the Probation Service that now in the new relationship that you have, there has been family violence incidents.   You have had three protection orders issued against you and indeed your current partner has some similar issues from previous relationships and it is not supported that you live at an address with her.

…

[12]      Today is also about deterrence. It is really troubling to me that at 22 you have so much violence going on in your life.  You have been to prison on multiple occasions in relation to it and just do not get the message.  So deterrence has two aspects today.  One, personal deterrence to you but also that wider message in terms of domestic and family violence, that the Courts will treat repeated violence in that context sternly, and today is about denouncing your conduct.

[5]      The Judge considered that a 12 month sentence was called for and that home detention would be wholly inappropriate:

[13]      Mr  Dawson  (appellant’s  counsel  at  sentencing)  submits  that  the starting point for you today is between six to eight months with an uplift of about three months given your previous convictions and credit for your plea. I accept a starting point in the vicinity of about eight months is appropriate. I accept there needs to be an uplift for relevant previous convictions of about three months which takes us to 11.  But there is the added factor that you were subject to release conditions for similar offending at the same time which should provide for a separate and discreet uplift of another three months which takes us to 14.   Mr Dawson submits you should be given credit of around 15 percent for your plea and I agree with that.  That brings us back to a sentence of about one year.

[14]      Now, counsel has not referred me to any decisions but in terms of that starting point and where it sits in relation to the maximum penalty of three years, that is about right in terms of the nature of the charge and the context.  It is not the most serious of its kind and it is moderate.  However, I have already told you what the effect on this young woman was.  One year, of course, means that I can consider imposing a sentence of home detention. Counsel  submits  that  I  should  remand  you  off  today  to  find  a  suitable address because you cannot have home detention at an address with your current partner because of domestic violence, because of concerns about the relationship.  I accept it would be wholly wrong, knowing what I do about that relationship, to put you on home detention there.  Counsel also submits not sending you to prison would also enable you to continue working.  He has a point there, of course, but it is an issue today of whether your personal situation of being able to work is outweighed by holding you to account, personal and general deterrence and denunciation.

[15]      Given the number of times that you have been before the Court, given the fact that you do not get the message, given the fact that you continue to offend while you are subject to release conditions and laud over these young women in a violent way, in my view for you home detention would be a wholly inappropriate sentence and an inappropriate deterrent

[6]      It is this decision that is appealed.

Submissions

Submissions for the Appellant

[7]      Ms Stevens, counsel for the appellant notes a number of factors that she considers to be significant:

(a)      In 2014 Mr Ferguson was able to obtain employment, obtain a limited licence, complete release conditions, undertake community work, and remain offence free.

(b)The pre-sentence report recommended community work as the appropriate sentence. This is all the level of culpability justified.

(c)      The facts of the offending did not warrant a starting point of eight months imprisonment. In fact, it is claimed the offending does not warrant imprisonment at all. It was only a text message about kicking a door.

(d)      There is no discussion in the District Court Judge’s sentencing notes

of the least restrictive sentence.

(e)      Judge Crosbie, it is said, indicated when Mr Ferguson’s guilty plea was  entered  on  10  December  2014,  “I am  granting  you  bail,  the difference between a community based sentence and imprisonment will be your behaviour between now and sentencing.” Mr Ferguson conducted himself well while on bail.

(f)      A letter of remorse from the appellant dated 18 March 2015, and a helpful and wholly supportive letter dated 24 March 2015 from the appellant’s new partner showing considerable concern for him, have just been provided to the Court.

Submissions for the Respondent

[8]      The respondent submits:

… a starting point of 8 months imprisonment was within the available range. Although the threats were communicated by telephone and, taken literally, convey  a  threat  to  force  entry  into  the  victim’s  home,  there  was  an underlying connotation that violence would follow. Therefore whilst it was a threat against the complainant’s property it was an indirect threat of violence against the complainant.

The appellant’s history of violence, wilful damage and burglary called for an uplift to the starting point and his offending whilst subject to release conditions imposed for similar offending was a significant aggravating feature. It is submitted an uplift of 6 months overall was within range in the circumstances.

Jurisdiction

[9]      The appellant may appeal the imposed sentence as of right.3  As the first appeal Court,4 this Court must only allow the appeal if satisfied that:5

(a)       For  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      A different sentence should be imposed.

[10]     In the recent judgement of Tutakangahau v R, the Court of Appeal confirmed that the Criminal Procedure Act 2011 sentence appeal regime was not intended to signify a departure from the position under the previous Crimes Act 1961, s 385(3), and the Summary Proceedings Act 1957, s 121(3), regimes.6

Analysis

Previous decisions

[11]     Previous cases involving “threatening acts” are only useful here to a limited extent because the sentences imposed are often muddied by the fact that they include other charges as well. However, there are a number of cases which may prove to be of some help.

[12]     In  the  case  of  Tangataolakepa  v  Police,7   Heath  J  considered  whether  a sentence   of   five   months   periodic   detention   which   had   been   imposed   on

Mr Tangataolakepa, was manifestly excessive. Although there are very few facts

3      Criminal Procedure Act 2011, s 244.

4      Section 247.

5      Section 250.

6      Tutakangahau v R [2014] NZCA 297; [2014] 3 NZLR 482.

7      Tangataolakepa v Police HC Auckland 13/9/02, A128/02

given in the appeal, it appears that the District Court Judge had been under a misapprehension that there was a tomahawk involved in the threatening behaviour. Heath J stated:

[4]       The  circumstances  of  the  offending,  leaving  to  one  side  the tomahawk allegation, seem to be at the lower end of the scale for offences of this type. Yet the sentence of 5 months periodic detention which has been imposed is quite high in the circumstances. It would have been appropriate sentence  had  the  tomahawk  been  involved  but  it  seems  to  me  to  be manifestly excessive if one takes the view that the tomahawk was not involved.

. . .

[7]       Accordingly,  I  allow  the  appeal  against  sentence.  I  quash  the sentence imposed by the District Court at Waitakere. In lieu therefore I order that the Appellant shall be sentenced to two month’s periodic detention.

[13]     It seems here that Heath J was only willing to consider a sentence of five months periodic detention had there been a serious weapon, such as a tomahawk, involved in the threatening behaviour. This is quite different from the case at hand where the threat was generally from texts that he would “kick the door in”.

[14]     In  Naiker  v  R,  the  appellant  appealed  to  the  Court  of Appeal  against  a sentence imposed by the District Court for two charges of possession of an offensive weapon and one charge of a threatening act.8 He was sentenced to five months’ home detention.

[15]     In that case, the defendant, after having been warned by police to stay away from the complainant, visited the complainant’s home and banged loudly on the windows while yelling. When refused entry he made the comment, “Talk to me before I blow this place.”9 The police were subsequently called and he was arrested and found to be carrying a 28 centimetre boning knife. There had also been an earlier incident involving a knife.

[16]     At sentencing, Judge Crosbie in the District Court, settled on an overall

starting point for the offending of 18 months’ imprisonment. The Court of Appeal

held that the starting point was too high. The Court considered that a 12 month

8      Naiker v R [2014] NZCA 20.

starting point would have better reflected the nature of the offending for all three of the charges.10

[17]     This is only four months more than the starting point that Judge Crosbie settled on in the case at hand and in Naiker the case involved a further two charges of possession of an offensive weapon and what, as I see it, is a significantly more serious threat.

[18]     Finally, in Tutbury v Police, Mr Tutbury had been in a relationship with the victim for two years.11  While under a Police Safety Order, Mr Tutbury phoned the victim and said “let the games begin, I’m going to come back as soon as the PSO is finished and burn your house down”. He also contacted her through text messages and  subsequent  phone  calls.  The  victim  was  fearful  enough  that  she  sought alternative accommodation. On a later occasion, Mr Tutbury waited for the victim

outside her house and slapped her. The victim suffered from a bloodshot eye, a cut lip and a sore face.

[19]     The District Court Judge took as a starting point the male assaults female and breach of protection order counts and fixed a starting point of nine months. An uplift of four months was then added for the threatening charge. On appeal to the High Court, Asher J considered the threatening charge to be “relatively serious in terms of the actual threat … it was taken seriously.”12  Asher J said that, taking all three charges and the fact that they all occurred in breach of a  police safety order, a 12 month starting point was warranted.13 A two month uplift was also determined to be appropriate for a continuum of past violent offending against a partner in defiance of protection orders. Ultimately, it was held that the end sentence of nine months’ imprisonment was entirely within range.

[20]     This is again only a four month increase on Judge Crosbie’s starting point,

but with the added charges of male assaults female and breach of protection order. The threat in Tutbury it seems was also significantly more serious.

10 At [12].

11     Tutbury v Police [2013] NZHC 2960

12 At [19].

Judge Crosbie’s starting point

[21] In the present case, Judge Crosbie took a starting point of eight months for reasons I have noted at [6] above.

[22]     However, the threat of “kicking the door in,” in my view, is likely to be at the lowest end of the scale in a charge of this type. This is not to suggest that the victim had no reason to be fearful. However, the threat itself did not involve a weapon, nor was violence directed at any person.  It is accepted though that the Court had to take into account the appellant’s previous offending as an aggravating feature.

[23]     It is also relevant that, as I see it, when Mr Ferguson was facing a charge of threatening to kill, the Department of Corrections prepared a Provision of Advice for the Court which recommended a sentence of community work and noted that a total of 320 hours was available to the Court.

[24]     Even if this recommendation is ignored and a term of imprisonment is taken as a starting point (which I accept Judge Crosbie had firmly in mind for reasons amongst others of deterrence), in my view, it should be at the low end, being four months.

Uplift

[25]     Once it is accepted that the starting point should be significantly decreased, the original uplifts would also be manifestly excessive. If an uplift of two months is imposed for a combination of his relevant previous offending and convictions, and the fact that he was subject to release conditions, this would take it to a maximum total of six months.  Counsel for the appellant correctly submits that Mr Ferguson entered his guilty plea to the amended charge of doing a threatening act at the earliest possible opportunity.   Therefore, he should be entitled to full 25 per cent discount. (Why Judge Crosbie gave only a 15% discount for this guilty plea in his sentencing is somewhat puzzling.) This would reduce his final end sentence to four months.

[26]   This appeal must therefore succeed as, if a sentence of four months imprisonment  is  accepted  as  within  the  upper  range,  Judge  Crosbie  acted  well beyond his discretion in imposing a sentence of 12 months.

[27]     As  this  appeal  is  to  be  allowed,  the Court  is  permitted  to  set  aside  the sentence and impose another sentence that it considers appropriate.14

Conclusion

[28]     For  all  the  reasons  I  have  outlined  above,  this  appeal  is  allowed.    The sentence in the District Court of 12 months’ imprisonment and six months’ release conditions is quashed and replaced by a sentence of four months’ imprisonment and three months’ release conditions.

...................................................

Gendall J

Solicitors:

Anne Stevens, Dunedin

RPB Law, Dunedin

14     Criminal Procedure Act 2011, s 251(2)(a).