Ferguson v The Queen
[2011] NZCA 445
•8 September 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA98/2011 [2011] NZCA 445 |
| BETWEEN ROBERT JAMES FERGUSON |
| AND THE QUEEN |
| Hearing: 6 September 2011 |
| Court: Harrison, MacKenzie and Asher JJ |
| Counsel: D N Bunce for Appellant |
| 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 the history and the nature of this offending it places you in the medium to high-risk category. I agree with that assessment in relation to you.
The ESO application
The Department of Corrections applied to the District Court for an ESO prior to Mr Ferguson’s release from prison. Its application was supported by a report from a clinical psychologist, Mr Paul Neilson. His report concluded with these recommendations:
37Mr Ferguson is assessed as likely to commit further relevant sexual offences against pubescent and pre pubescent males and other vulnerable young persons both known and unknown to him. He had in the past shown poor ability to control and manage effectively his sexual impulses, and is believed to continue to have predilection and proclivity for sexual offences against children. His current failure to complete the Kia Marama treatment programme, being evicted from there on 15 March 2010, also indicated a difficulty in managing his sexual proclivities. While he reported to have made some progress in better understanding his offending and showing emerging levels of remorse, his capacity to demonstrate this in unsupervised settings in the community when experiencing strong negative affect is at this stage largely untested.
38It is recommended that the General Manager, Community Probation & Psychological Services makes application under the Parole Act 2002 for an order for extended supervision for Mr Ferguson. Research indicates that the risk of individuals with Mr Ferguson’s assessed risk level remain stable over an extended period of time with the risk remaining over a 10 year period. In Mr Ferguson’s case, after an early onset, his offending has occurred throughout his adult lifespan, and the behaviours associated with his risk for further offending have not abated either with age or with treatment. For this reason, it is recommended that if an order is applied it should be for the maximum length available under the legislation (10 years).
In cross-examination at the hearing Mr Bunce referred Mr Neilson to a published article by Alex Skelton and James Vess called “Risk of sexual recidivism as a function of age and actuarial risk”.[4] The authors reported a finding from research that:[5]
There was an overall decrease in the rate of sexual re-offending over the age of 50. However, a small group of offenders from the higher actuarial risk categories of the older age groups continued to re-offend at higher rates than their lower-risk peers.
[4]Alex Skelton and James Vess “Risk of sexual recidivism as a function of age and actuarial risk” (2008) 14 Journal of Sexual Aggression 199.
[5] At 199.
While Mr Neilson accepted that the research – which he regarded as reputable – demonstrated that general trend, he countered:
... looking at Mr Ferguson in an individual situation here at 59 he is reoffending after 16 years so I think you know statistics give us a bit of a broad range but then with our risk assessment we then look at the individual and the factors for that particular individual.
Even allowing for a “very significant drop off” in the rate for offenders over 60, Mr Neilson did not regard his opinion as inconsistent with the research. That was because in his view Mr Ferguson fell into the small number of sex offenders who continue to reoffend over the age of 60, contrary to the general trend. In response to a question about why he had recommended a ten year supervision period, Mr Neilson advised that Mr Ferguson’s offending had occurred over a long period of time and his method of offending meant “it may take a number of years for him to find a victim”.
District Court decision
Against this background, Judge Moran considered each of the risk issues identified in s 107F(2). He also took into account the statutory requirement in s 107I(5) that the term of an order be the minimum period required for the purposes of the safety of the community in the light of the level of risk posed by Mr Ferguson; the seriousness of the harm that might be caused to victims; and the duration of risk.
Mr Bunce does not challenge the Judge’s finding that Mr Ferguson poses a high risk of sexual offending against pubescent and pre pubescent males, extending from grooming to indecent assault and to sexual violation. The Judge addressed Mr Bunce’s submission that Mr Neilson’s opinion ignored the trend for more elderly offenders not to offend frequently given such factors as health, sexual function and the desire to avoid prison late in life. After reviewing the evidence, the Judge was satisfied that Mr Ferguson was an exception. He noted also that, because of his failure to complete the Kia Marama treatment programme within the prison environment and the community STOP treatment programme, Mr Ferguson would be released into the community on the expiration of his release conditions on 19 June 2011 as an untreated sex offender. To that, the Judge could have added the factor of Mr Ferguson’s social isolation and the absence of any support network for him.
Our decision
It is unnecessary for us to traverse previous authorities in this Court on the policy and principles of s 107I.[6] As Ms Inwood submits, those decisions emphasise that the statutory assessment must be individualised, directed towards fixing the minimum term appropriate for the particular offender. Judge Moran undertook that evaluation. In exercising his judgment, the Judge placed decisive weight on the subjective factors influencing Mr Neilson’s recommendation. Included among them were adverse observations of Mr Ferguson in situations where his problematic behaviour might otherwise have been expected to be suppressed, coupled with the nature and extent of his criminal history.
[6]See R v Peta [2007] NZCA 28, [2007] 2 NZLR 627; McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352, (2009) 8 HRNZ 770; Poutawa v Chief Executive of the Department of Corrections [2007] NZCA 206; Moeke v Chief Executive of the Department of Corrections [2010] NZCA 60; Woodhouse v Chief Executive of the Department of Corrections [2011] NZCA 333.
Mr Bunce’s argument resolves to a narrow point. He submits that the Judge gave insufficient weight to research showing that generally the rate of recidivism amongst sexual offenders decreases rapidly from the age of 50 years. However, his careful argument is based on a logical fallacy. He reasons from the general to the particular, and excludes determinative factors from his analysis. Judge Moran was entitled to reject Mr Bunce’s submission of an actuarial assessment of risk. The Judge was not required to assess competing statistical methodologies or base his decision solely on statistical research. 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. His decision was of a quintessentially evaluative nature.
We are not satisfied that the Judge erred in imposing an ESO of ten years duration.
Result
Mr Ferguson’s appeal is dismissed.
Solicitors:
Crown Law Office, Wellington, for Respondent
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