Ferguson v The Queen - [2011] NZCA 445

IN THE COURT OF APPEAL OF NEW ZEALAND

CA98/2011
[2011] NZCA 445

BETWEEN ROBERT JAMES FERGUSON
Appellant

AND THE QUEEN
Respondent

Hearing: 6 September 2011

Court: Harrison, MacKenzie and Asher JJ

Counsel: D N Bunce for Appellant
M J Inwood for Respondent

Judgment: 8 September 2011 at 12.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

Robert Ferguson appeals under s 107R of the Parole Act 2002 against the imposition of a 10 year extended supervision order (ESO) by Judge Philip Moran in the District Court at Christchurch on 2 February 2011.[1] His counsel, Mr Bunce, does not challenge the making of the order. But he submits that its length was excessive. He says that it went beyond the minimum necessary to protect the community.[2]

Background

[1]Chief Executive, Department of Corrections v Ferguson DC Christchurch, CRI-2010-009-10486, 2 February 2011.

[2] Parole Act, s 107I(5).

Mr Ferguson was 61 years of age when the order was made. He had eight previous convictions for sexual offending. His first was in 1974 when he was aged 25 years. He was convicted of six counts of obscene exposure. In 1991 he was convicted for indecent assault of a male over 16 years. Shortly afterwards, he was convicted of the same offence against a boy between the age of 12 and 16 years. In September 2008, after a 15 year gap in his offending, Mr Ferguson was found guilty at trial on two counts of grooming two young men for sexual purposes. In October 2008 Judge Farish sentenced Mr Ferguson to a term of two years and two months imprisonment.[3]
[3] R v Ferguson DC Christchurch CRI-2007-009-8577, 21 October 2008.
The circumstances of Mr Ferguson’s offending merit amplification. He was working as a bus driver. He met and befriended two passengers, twin boys who were aged about 15 years. However, due to significant social and cognitive disabilities, their actual functioning age was in the vicinity of six years. Through his employment, Mr Ferguson encouraged increasing contact with the boys. While their parents were away, he invited them to his house. Eventually he persuaded them to massage his bare thigh on three or more occasions over a week.
When sentencing Mr Ferguson, Judge Farish noted:
[12] The pre-sentence report writer says that you have a deviant sexual interest in children; that you have limited social supports over your life and you have often experienced social rejection and you have poor problem solving abilities. The report writer states that often offences such as this are the result of maladaptive coping strategies such as seeking acceptance and intimacy from children who are less likely to reject an adult. It went further to say that:
Robert Ferguson describes this as an impulsive and opportunistic offence. If that is so then he should be regarded as at high risk of further offending.
Further on, the senior clinical psychologist from the STOP programme also thought because of your background and…

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 [2011] NZCA 445
Case: [2011] NZCA 445
Decision Date: 8 September 2011

CaseChat Overview and Summary

The case of Ferguson v The Queen involves the appellant, Robert James Ferguson, who appealed against the imposition of a 10-year extended supervision order (ESO) by Judge Moran in the District Court at Christchurch on 2 February 2011. Ferguson's counsel did not challenge the making of the order but argued that its length was excessive, going beyond the minimum necessary to protect the community. The appeal was heard by Harrison, MacKenzie and Asher JJ on 6 September 2011 and the judgment was delivered on 8 September 2011 at 12.00 pm, dismissing the appeal. The primary legal issue before the Court was whether the length of the extended supervision order imposed on Ferguson was excessive, going beyond the minimum necessary to protect the community. The Court was required to decide whether the Judge's decision to impose a 10-year ESO was appropriate and whether the Judge had erred in his assessment of the risk factors and the minimum term required for the community's safety.

The Court found that Judge Moran had undertaken an individualized assessment of the risk factors and had placed decisive weight on the subjective factors influencing the clinical psychologist's recommendation. The Judge had considered all the evidence material to the ultimate question of what in his judgment was the minimum term of an ESO required for the community's safety. The Court held that the Judge was not required to assess competing statistical methodologies or base his decision solely on statistical research. Instead, his function was to weigh all the evidence which might be material to the ultimate question of what in his judgment was the minimum term of an ESO required for the community's safety. The Court was not satisfied that the Judge had erred in imposing an ESO of ten years duration. Therefore, the appeal was dismissed.

Orders