Ferguson v The Queen - [2012] NZCA 581

IN THE COURT OF APPEAL OF NEW ZEALAND

CA162/2011
[2012] NZCA 581

BETWEEN JASON MARK FERGUSON
Appellant

AND THE QUEEN
Respondent

Hearing: 6 November 2012

Court: Arnold, Stevens and French JJ

Counsel: T Ellis, C J Tennet and G Edgeler for Appellant
A Markham and A R van Echten for Respondent

Judgment: 11 December 2012 at 2.30 pm

JUDGMENT OF THE COURT

The application for an extension of time to appeal against sentence is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

In December 2002, a High Court jury found Mr Ferguson guilty of murder. He was sentenced by Rodney Hansen J to life imprisonment.[1] The sentencing took place in February 2003.
[1] R v Fergusson HC Rotorua T02/2759, 5 February 2003.
In 2008 Mr Ferguson lodged an appeal against his conviction. One of the main grounds of the appeal was that Mr Ferguson had been unfit to stand trial due to his intellectual disability. He has a Full Scale Intelligence Quotient (IQ) in the range of 60–68.[2] This Court granted Mr Ferguson leave to bring the appeal out of time[3] but subsequently dismissed it.[4] The Court found that on the totality of evidence Mr Ferguson was fit to stand trial. Mr Ferguson then sought to appeal to the Supreme Court but leave was denied.[5]
[2]Intellectual disability is indicated when a person’s IQ is below 70. See s 7(3) of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
[3]      R v Ferguson [2009] NZCA 157.
[4]      Fergusonv R [2010] NZCA 2.
[5]      Ferguson v R [2010] NZSC 93.
On 23 March 2011, Mr Ferguson filed the current appeal which is an appeal against sentence. The purpose of the appeal is said to be to remove Mr Ferguson from the prison environment into intellectual disability care.
The appeal is some eight years out of time and an extension of time for filing the appeal is sought. The Crown opposes an extension being given.
By order of this Court the application for an extension of time to appeal was dealt with at the same time as the substantive hearing.[6]
[6] Minute of Stevens J dated 28 June 2011.
The key issues raised by the appeal are whether Mr Ferguson’s intellectual disability rendered the sentence of life imprisonment manifestly unjust and whether this Court should invoke its powers under the Criminal Procedure (Mentally Impaired Persons) Act 2003 to order that instead of imprisonment Mr Ferguson should be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

Background

The background facts of the murder are usefully summarised in the 2010 decision of this Court dealing with the appeal against conviction.
On Saturday 8 June 2002, the appellant was hitchhiking near Putaruru when he was picked up by the deceased Mr Sorrenson. The two men spent that Saturday and Sunday together. Mr Ferguson stayed at Mr Sorrenson’s home where an intellectually impaired man, who had for some years been cared…

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 [2012] NZCA 581
Case: [2012] NZCA 581
Decision Date: 11 December 2012

CaseChat Overview and Summary

In this appeal, the appellant Jason Mark Ferguson challenges his life sentence for murder, arguing it is manifestly unjust due to his intellectual disability. The Court of Appeal of New Zealand, comprising Arnold, Stevens, and French JJ, was tasked with deciding whether the sentence was manifestly unjust and if the court should order his care under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 instead of imprisonment. The appeal was filed eight years out of time, and an extension of time to appeal was sought.

The court found that the appeal was without merit. Firstly, the criticisms of the sentencing judge and the appellant's counsel were not justified. The counsel had appropriately conceded that there were no grounds for a sentence other than life imprisonment. Secondly, the court doubted its jurisdiction to interfere with the sentence under the transitional provisions of the Criminal Procedure (Mentally Impaired Persons) Act 2003. The court concluded that Parliament intended the statutory process under section 29 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act to address such concerns, not a retrospective appeal process. Additionally, the court held that a care order in lieu of sentence was inappropriate for a brutal murder and an offender with public safety concerns.

The court dismissed the application for an extension of time to appeal, finding the appeal to be without merit. The sentence of life imprisonment was deemed inevitable and appropriate for both rehabilitative needs and public protection.

Orders