Ferguson v The Queen - [2014] NZCA 36

IN THE COURT OF APPEAL OF NEW ZEALAND

CA846/2013
[2014] NZCA 36

BETWEEN	ROSANA HIKI POU FERGUSON Appellant
AND	THE QUEEN Respondent

Hearing:	13 February 2014
Court:	Harrison, Asher and Dobson JJ
Counsel:	J D Munro and S J Revell for Appellant J M Jelas for Respondent
Judgment:	26 February 2014 at 3.00 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

BThe appellant must surrender herself to the Registrar at the High Court at Auckland at 9 am on Friday, 28 February 2014 to commence her sentence.

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REASONS OF THE COURT

(Given by Asher J)

Introduction

On 18 March 2012 emergency services were called to attend 33 year old Paul Wilson who was found to be unresponsive and not breathing in his bed. Mr Wilson had been living with Peau Tulisi and his partner, the appellant, Rosana Pou Ferguson.
Mr Tulisi was charged with the manslaughter of Mr Wilson, and in addition was charged on three counts of assault with a weapon, one charge of assault with intent to injure and six charges of common assault. The appellant was charged with one representative count of assault for the period from 1 November 2010 to 17 March 2012 for actions which included slaps to the face or head, and a second count of assault for shaving Mr Wilson’s head hair and eyebrows. She was not charged as a party to Mr Tulisi’s assaults or to the manslaughter charge.
At the start of the trial Ms Pou Ferguson pleaded guilty to the representative count of common assault, but defended the single count relating to shaving the hair and eyebrows. The jury found her guilty of that second count. It also delivered verdicts of guilty in relation to the counts against Mr Tulisi.
Mr Tulisi and Ms Pou Ferguson were sentenced separately. Mr Tulisi was sentenced by the trial Judge, Brown J, to 12 years’ imprisonment and directed to serve a minimum period of six years in prison. In a separate sentence Brown J sentenced Ms Pou Ferguson to six months’ imprisonment with special conditions relating to attendance at violence and counselling programmes. A submission that she should be sentenced to home detention instead of imprisonment was not accepted by the Judge.
Ms Pou Ferguson appealed against that sentence of six months’ imprisonment. It is submitted that the sentence should have been home detention. Ms Pou Ferguson has been on bail pending the outcome of this appeal.

Facts relating to the offending

The Police summary of facts was not contested. Mr Wilson was described as a sickness beneficiary who was a simple person of mild manner. He had been born with a medical condition commonly referred to as club foot. It was while living with Mr Tulisi and Ms Pou Ferguson that Mr Wilson was subjected to continuous domestic violence and treated like a child. There were frequent and escalating assaults by Mr Tulisi. Ms Pou Ferguson assaulted Mr Wilson as a form of punishment, and would have him do…

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 The Queen

Details

AGLC: Ferguson v The Queen [2014] NZCA 36
Case: [2014] NZCA 36
Decision Date: 26 February 2014 at 3.00 pm

CaseChat Overview and Summary

Rosana Hiki Pou Ferguson appealed against her six-month imprisonment sentence imposed for assault charges against Paul Wilson, whom she had been living with. The case was heard in the Court of Appeal of New Zealand, with Harrison, Asher, and Dobson JJ presiding. The legal issue was whether the trial judge erred in not sentencing Ferguson to home detention instead of imprisonment. The appeal was dismissed, and Ferguson was required to commence her sentence.
The court found that Ferguson's actions constituted significant and ongoing cruelty, with elements of humiliation, and were part of a general pattern of escalating cruelty. The assaults were severe, with Ferguson forcing Wilson to crawl on his bottom, stand on tip-toes, and slap him multiple times, culminating in shaving his hair and eyebrows. While the judge acknowledged Ferguson's difficult life and mental health issues, these factors did not lessen her culpability. The court found that the judge exercised his discretion correctly in sentencing Ferguson to imprisonment, given the level of cruelty and the need for denunciation and deterrence.

In summary, the Court of Appeal dismissed Ferguson's appeal and upheld the six-month imprisonment sentence. The court found that the trial judge had not erred in not sentencing Ferguson to home detention, given the severity and context of the assaults. The decision highlights the importance of considering the level of cruelty and the need for denunciation and deterrence when determining an appropriate sentence in cases of domestic violence and assault.

Orders