Ferguson v The Queen
[2012] NZCA 581
•11 December 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA162/2011 [2012] NZCA 581 |
| BETWEEN JASON MARK FERGUSON |
| AND THE QUEEN |
| Hearing: 6 November 2012 |
| Court: Arnold, Stevens and French JJ |
| Counsel: T Ellis, C J Tennet and G Edgeler for Appellant |
| 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 for by the deceased, lived also.
Mr Sorrenson and Mr Ferguson socialised together over the weekend. The appellant said that on the evening of Sunday 9 June 2002, around 10 pm while he was drying himself after taking a shower, the deceased walked into the bathroom and grabbed Mr Ferguson’s penis. The appellant at his police interview said he had “smacked him once and then smacked him again”. He forcefully rejected Mr Sorrenson’s attempts to give him a conciliatory hug.
After the appellant had put on his trousers, he took hold of a vase and struck the deceased over the head. After receiving a retaliatory punch from Mr Sorrenson, the appellant told the police he picked up a glass plate and smashed it over the deceased’s head. Mr Ferguson said he then went to the kitchen and pulled out two knives. Upon returning to the lounge, he dropped the knives, picked up a poker and struck the deceased a number of times over the head. He then stabbed him in the back about three times.
The post-mortem showed extensive cutting wounds and blunt injuries to Mr Sorrenson’s hands, back and head. He suffered a total of ten cutting wounds and five blunt wounds to his hands and forearms. He was stabbed five times in the upper middle back. The pathologist described the combination of injuries as representing a determined and sustained assault.
Mr Ferguson told the police that he placed Mr Sorrenson’s body in the boot of Mr Sorrenson’s Nissan motor vehicle and drove it away. There were two incidents in the next few hours in which the appellant needed assistance after running the car off the road.
When it became light the following morning, Mr Ferguson buried the deceased in a shallow grave, and disposed of various bloodstained items in and around the same area.
On 12 June 2002, Mr Ferguson was arrested at his Matamata address. He told the police that he had killed and buried Mr Sorrenson. After speaking to a solicitor, he took the police to the grave. Mr Ferguson was subsequently interviewed and this was video recorded.
At trial, there was no issue about this being a culpable homicide. The sole question was whether the Crown had established that the defence of provocation did not have application.
The sentencing in the High Court
At the time of the sentencing, s 102(1) of the Sentencing Act 2002 had just come into force. It provides:
102 Presumption in favour of life imprisonment for murder
(1) An offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.
...
In his sentencing notes, Rodney Hansen J recorded that contrary to the usual practice he had refrained from sentencing Mr Ferguson to life imprisonment immediately after the jury had given its guilty verdict. He said he had done that for two reasons, first because he wanted counsel to have the opportunity of considering whether there might be grounds for a lesser sentence to be imposed under the new s 102(1), and secondly because he wanted to obtain a further psychiatric report. The report was for the purpose of considering whether a lesser sentence might be appropriate and also to provide guidance as to any directions which should be associated with the sentence.
The Judge noted that counsel had since acknowledged there were no grounds on which the Judge could find it would be a manifest injustice for Mr Ferguson to be sentenced to life imprisonment. Justice Rodney Hansen described the concession as “undoubtedly inevitable”.
As for the psychiatric report, Rodney Hansen J said it showed that Mr Ferguson suffered from quite significant psychological disorders including post-traumatic stress disorder and some abnormal personality development. However, what the report made clear was that Mr Ferguson did not suffer from any profoundly severe psychiatric disorders and there was no question that when Mr Ferguson committed the murder he knew what he was doing.
The Judge concluded “[t]hat being the case … the normal sentence for murder required by law must follow”. Justice Rodney Hansen then sentenced Mr Ferguson to a term of life imprisonment, adding a strong recommendation that Mr Ferguson receives such psychological counselling as is required to enable him to come to terms with his sentence and to address the wider issues of anger and sexual abuse which had been identified in the psychiatric report.
Grounds of proposed appeal
Counsel for the appellant, Mr Ellis, advanced a number of arguments in support of his central contention that a sentence of life imprisonment was manifestly excessive.
Some of these arguments focussed on what happened at the sentencing, Mr Ellis being critical of the approach taken by Mr Ferguson’s then counsel (the late Mr Ryan QC) and the sentencing Judge. Mr Ellis identified the following alleged shortcomings:
(a)Mr Ryan erred in failing to advance that special circumstances existed not to impose a life sentence. This resulted in an unfair sentencing.
(b)Mr Ferguson’s low intellectual functioning, although not amounting to mental disorder, was relevant to sentencing and should have been taken into account. So too should his age, his lack of previous convictions and the fact that his intellectual disability would make imprisonment particularly difficult for him. Having regard to those factors, this was clearly the type of case in which the manifestly unjust exception in s 102(1) could have been applied.
Mr Ellis also contended that in any event regardless of what happened at the sentencing, the subsequent enactment in 2003 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act and the Criminal Procedure (Mentally Impaired Persons) Act afforded grounds for an appeal.
For present purposes, the significance of those two pieces of legislation is that prior to their enactment, orders in lieu of prison sentences for offenders with mental health problems were only available for those who were “mentally disordered” as defined by the Mental Health (Compulsory Assessment and Treatment) Act 1992. The definition of “mental disorder” did not readily include those with intellectual disability like Mr Ferguson.
In Mr Ellis’ submission, when the 2003 statutes came into force, it was incumbent on either the Attorney-General or the Solicitor-General to undertake a review of all prison sentences imposed on people with an intellectual disability, with a view to initiating appeals and seeking a different Intellectual Disability Compulsory Care and Rehabilitation) Act sentence. In breach of the New Zealand Bill of Rights Act 1990, such a review was never undertaken. But it should, Mr Ellis says, happen now and adequate treatment be provided.
Mr Ellis contends that in Mr Ferguson’s case the appropriate sentence is a sentence of intellectual disability compulsory care pursuant to s 34(1)(b)(ii) of the Criminal Procedure (Mentally Impaired Persons) Act.[7] He argues that although this legislation only came into force after Mr Ferguson was sentenced, this Court has jurisdiction to impose such a sentence on appeal because of the transitional provisions of the Act. In particular, he relies on s 47(1) of the Criminal Procedure (Mentally Impaired Persons) Act which states that “[t]his Act applies to all proceedings described in section 5, even if the proceedings were commenced before the commencement of this Act”. Proceedings described in s 5 are criminal proceedings in which a defendant is charged with an imprisonable offence.
Discussion
[7]Although the notice of appeal also advances a hybrid order (where an offender is sentenced to imprisonment and detained in a secure facility as a special care recipient) pursuant to s 34(1)(a)(ii) of the Criminal Procedure (Mentally Impaired Persons) Act 2003, this alternative option was not pursued at the hearing, presumably because of s 47(2)(a).
The first issue to be determined is whether the Court should extend time for appealing.
As mentioned, the appeal is some eight years out of time. The delay is lengthy and largely unexplained. At the hearing when asked for an explanation, Mr Ellis sought to justify the delay on the grounds that although the Criminal Procedure (Mentally Impaired Persons) Act was enacted in 2003, no-one including himself had up until now appreciated the potential implications of that legislation for someone in Mr Ferguson’s position. Mr Ellis said that the possibilities only became apparent when efforts to arrange Mr Ferguson’s transfer to compulsory care through internal processes were stymied and he was forced to turn his mind to what other avenues there might be. Mr Ellis also sought to attribute blame for the delay to what he described as a “systemic failure” on the part of the authorities in their treatment and care of intellectually disabled prisoners.
In our view, the explanation is unsatisfactory, particularly having regard to the fact of the earlier appeal in 2008, which also centred on Mr Ferguson’s mental state.
That said, the long delay could be overlooked if the proposed appeal was overwhelming on its merits.[8]
[8] R v Latifi [2007] NZCA 372.
However, in our assessment the appeal is entirely without merit.
First, we do not accept that the criticisms of the sentencing Judge and Mr Ryan are warranted. Mr Ryan was a very experienced and well respected criminal lawyer. In his sentencing notes, the Judge states that Mr Ryan had represented Mr Ferguson with “his customary dedication and professionalism”. Our review of the relevant documentation supports this observation. It is clear Mr Ryan was alert to the issue of Mr Ferguson’s mental impairment and he obtained the relevant medical reports, none of which would have supported an argument that it would be manifestly unjust to impose a sentence of life imprisonment. In our view, the concession Mr Ryan made was appropriate and responsible.
Secondly, we consider it highly doubtful that this Court has jurisdiction to interfere with the sentence under the transitional provisions of the Criminal Procedure (Mentally Impaired Persons) Act as claimed by Mr Ellis. It is unlikely that the phrase “proceedings [that] were commenced before the commencement of this Act” was intended to apply to proceedings like this one that were both commenced and completed before the Act came into force. It is much more likely the phrase was intended to apply only to those proceedings commenced but not yet completed.
This is reinforced in the current context by the existence of s 29 in Part 4 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act. Part 4 specifically provides for the making of compulsory care orders for intellectually disabled prisoners who have been assessed and for whom a care and rehabilitation plan has been completed. Significantly, s 29 requires that the assessment process be initiated by the manager of the prison if the manager has reasonable grounds to believe the prisoner has an intellectual disability.
In our view, Parliament clearly intended that s 29 was the appropriate vehicle for addressing the concerns raised by cases like Mr Ferguson’s case, not a retrospective appeal process against sentence.
At the urging of Mr Ellis, the prison authorities have in fact already applied under s 29 to have Mr Ferguson assessed to determine his eligibility and suitability for a compulsory care order. However, while the assessment which was undertaken in 2010 confirmed that Mr Ferguson meets the definition of intellectual disability under the Intellectual Disability (Compulsory Care and Rehabilitation) Act, the care co-ordinator declined to apply for a compulsory care order. No doubt this was because the assessor considered that a care order in hospital would expose Mr Ferguson to a range of stressors that would place others at significant risk of serious violence and compromise his opportunities for rehabilitation. A more recent report from the same assessor recommends that Mr Ferguson should work towards a future re-referral under s 29. That has not yet happened.
Mr Ellis tended to blame the lack of progress on the prison authorities, submitting that Mr Ferguson’s eligibility to be considered for a care order is dependent on him receiving treatment to address the risk of his re-offending which the prison is failing to provide.
Our sense from reading the various reports however is that the criticism is somewhat unfair and unwarranted. Over the years, Mr Ferguson has in fact been afforded several interventions, but at least part of the problem appears to be that in the past he has been belligerent and resistant to treatment, choosing to focus instead on the continuing legal challenges thereby reinforcing his avoiding responsibility for his offending.[9] One report notes that Mr Ferguson has a “history of refusing rehabilitative efforts offered to him as he considered the appeal of his sentence as over-riding his treatment needs”. In any event, dissatisfaction with the s 29 processes is not grounds for an appeal against sentence. It is not for this Court in a sentence appeal to usurp the functions of the prison authorities, and it is wrong to use the appeal system as a collateral means of reviewing administrative processes.
[9]More recent reports are more positive and suggest that Mr Ferguson has an improved attitude.
Even if this Court did have jurisdiction under the Criminal Procedure (Mentally Impaired Persons) Act, the appeal is also highly problematic for two other reasons. The first is that a care order in lieu of sentence under s 34(1)(b)(ii) has been held to be a benevolent therapeutic option reserved for less serious offending and where deterrence and protection of the public are not imperative.[10] Such orders are wholly inappropriate for a court to make in the case of a brutal murder and an offender in respect of whom there are public safety concerns.
[10] R v Satherley [2007] NZCA 381.
The second hurdle is that this Court has already held in R v O’Brien[11] that low intellectual capacity unrelated to the mental elements of criminal responsibility is seldom likely to justify departure from the statutory presumption of life imprisonment and will only do so in the absence of future risk to the public. In this case as mentioned, there are genuine public safety concerns.
[11] R v O’Brien (2003) 20 CRNZ 572 (CA).
In our view, Rodney Hansen J was correct when he stated that life imprisonment was in this case an inevitable outcome. As submitted by the Crown, both Mr Ferguson’s rehabilitative needs and the interest of protection of the community are best served by an indeterminate sentence that affords both an incentive to engage in treatment and the safety net of life parole with potential recall.
Result
We are satisfied the appeal lacks merit. The application for an extension of time in which to appeal against sentence is accordingly dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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