Ferris-Bromley v R
[2017] NZCA 115
•10 April 2017 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA263/2016 [2017] NZCA 115 |
| BETWEEN | JESSE JOHN FERRIS-BROMLEY |
| AND | THE QUEEN |
| Hearing: | 9 March 2017 |
Court: | Kós P, Brown and Williams JJ |
Counsel: | R B Crowley and L A Scott for Appellant |
Judgment: | 10 April 2017 at 11.00 am |
JUDGMENT OF THE COURT
A The appeal against sentence is allowed.
B The sentence of eight years’ imprisonment is quashed and a sentence of seven years and ten months’ imprisonment is substituted.
CThe minimum period of imprisonment of four years is quashed and a minimum period of imprisonment of three years and eleven months is substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Kós P)
The appellant, a university student then aged 22, killed his girlfriend, Virginia Ford, also a university student, aged 20. The two year relationship between them had become psychologically and physically violent on the appellant’s part. Several weeks before the fatal attack the appellant had attacked Ms Ford, breaking her ribs in thirteen places. In the days immediately before he killed Ms Ford another attack or attacks had caused an acute subdural haemorrhage and extensive bruising to Ms Ford’s eyes, chest, groin and buttocks.
On 13 March 2015 an argument erupted over trivia: the couple’s dinner. The appellant pulled Ms Ford off the bed, threw her on the floor, punched her heavily about her head and back and struck her abdomen with great force. Ms Ford was left bleeding and unconscious. She remained unconscious for several hours. At about 10 pm she stopped breathing. The appellant then called the ambulance. Ms Ford was pronounced dead by ambulance officers at 10.59 pm.
The appellant was charged initially with murder. He pleaded guilty to manslaughter and to two charges of causing grievous bodily harm with intent to injure.[1] The latter charges related to Ms Ford’s broken ribs and the acute subdural haemorrhage.
[1]Crimes Act 1961, ss 171 and 188(2).
Clifford J sentenced the appellant to eight years’ imprisonment on the manslaughter charge and to two years’ imprisonment on each of the grievous bodily harm charges, to be served concurrently with the manslaughter sentence.[2] A minimum period of imprisonment of 50 per cent of the manslaughter sentence – that is, four years – was imposed.
[2]R v Ferris-Bromley [2016] NZHC 772.
The reasoning underlying the Judge’s sentencing was as follows. First, the Judge considered a nine-year starting point was justified by the offending on 13 March 2015 by itself. He then applied a-two year uplift for the earlier violent offending. This produced a starting point of eleven years’ imprisonment for the whole of the offending. The Judge then turned to considerations personal to the offender. He accepted that credit should be given for the appellant’s genuine remorse, exemplified by a restorative justice meeting with Ms Ford’s parents. No credit was given however for youth or previous good character. The Judge reasoned:[3]
In part, I say that because Ms Ford was also very, very young and of unblemished good character. But, more significantly, in a legal sense, you offended against her over quite some period of time, that offending was serious, and cannot be described as youthful indiscretion. At 22 I do not consider youth to be a particular mitigating factor in these circumstances.
The Judge gave a reduction of six months for remorse alone. That reduced the sentence from eleven to ten years six months’ imprisonment. Given that the appellant had acknowledged his responsibility from the outset, the Judge recognised that “a full 25 per cent discount for the guilty plea is appropriate”.[4] The Judge concluded, “That means an end sentence of eight years imprisonment.”[5]
Appeal
[3]At [47].
[4]At [49].
[5]At [50].
The appellant appeals sentence on the basis that insufficient credit was afforded for good character and remorse. Further, the Judge’s 25 per cent discount from a ten year six month sentence should have resulted in imprisonment of seven years ten months rather than eight years. No issue is taken with the starting point, the Judge’s rejection of credit for the appellant’s relative youth or with the imposition of a minimum period of imprisonment of 50 per cent of the final sentence.
Credit for good character?
Ms Scott, who presented submissions on behalf of the appellant, submitted he was appearing before the Court as a first time offender and at least deserved a credit for the absence of prior convictions. Ms Scott submitted that the personal attributes of the victim were not relevant to credit for mitigating features personal to the offender. The Judge appeared to have been unduly swayed by the tragic loss of a young woman. But that was reflected in the starting point and did not preclude any credit being given at the other end of the sentencing process. She submitted a 10 per cent discount should have been afforded for lack of previous convictions and good character.
Discussion
We agree with Ms Scott that the character of the victim was not a relevant consideration in assessing whether credit should be given for the appellant’s good character. The fact that a victim was elderly or of bad character would not be relevant to the same question either. That said, however, the Judge regarded as more significant that the offending against Ms Ford had taken place over quite some period of time, was serious, and could not be described as youthful indiscretion. We agree with the Judge about that. This was enduring psychological and physical domestic violence reflecting an unconscionable assertion of power by a stronger personality over a gentler one. Both the ‘do-better’ lists made by Ms Ford (in an effort to improve her relationship with the appellant) and the post-mortem injury findings, all of which are recounted in the sentencing notes, indicate lengthy abuse.[6] The question, in the light of that, is what if any credit should the appellant receive for his lack of previous convictions and good character?
[6]At [14]–[21].
We do not think the Judge erred. No credit for good character was deserved in relation to the lead offence, the concluding act at the end of a lengthy sequence of domestic violence, which resulted in Ms Ford’s death. That is responsible for the bulk of the imprisonment term imposed on the appellant. The concept of good character is a hollow one when offending occurs regularly and is secretive in nature, as the domestic abuse was in this case.[7] This was not out of character offending. As this Court observed in R v Zhang:[8]
This was not the more common case of a first offender being sentenced for a single offence. Any concession to be gained by reason of a previously unblemished record should have been and was dispelled by the prolonged and premeditated nature of the offending in this case.
Remorse
[7]See for example, R v W CA482/05, 1 March 2006 at [17]; and R v O CA9/04, 10 November 2004 at [33].
[8]R v Zhang (2004) 20 CRNZ 914 (CA) at [26] (approved in R v S [2009] NZCA 183 at [25]).
Ms Scott submitted that remorse should be considered separately from the guilty plea.[9] Genuine remorse deserved a 5 to 10 per cent credit. The remorse demonstrated by the appellant was real and genuine. He accepted responsibility early and participated in restorative justice. The probation report writer concluded his display of remorse was genuine. The Judge accepted it was extraordinary. Acknowledgement of such conduct by the giving of credit is important as an incentive to others. A 10 per cent credit should have been given in this case, and the six months applied was insufficient to reflect the significant level of remorse demonstrated.
Discussion
[9]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
The six month credit for remorse given in this case equates to a discount of 4.5 per cent from the eleven year starting point. We do not consider however that the appellant would be entitled to credit of as much as 10 per cent. We draw attention, as Mr Barr did, to the failure of the appellant to seek assistance for his victim for several hours until she eventually stopped breathing. She was unconscious. He wiped blood from her face. But he did not call 111. At that stage he was concerned about the trouble he would be in, as he had already been in trouble in relation to “past incidents”. His acceptance of responsibility once emergency services arrived was commendable and was fully recognised in the 25 per cent credit for the early guilty plea. The appellant’s frank participation in the restorative justice process with Ms Ford’s parents was also commendable and needs to be recognised in a distinct credit for remorse. The 4.5 per cent credit allowed by the Judge here was not out of range.
Guilty plea and mathematical errors in sentencing
The Judge expressly acknowledged that “a full 25 per cent discount for the guilty plea is appropriate.” In reducing the sentence to eight years’ imprisonment, the Judge effectively gave a credit of 23.8 per cent only. The Crown accepts that amounts to a mathematical error. It concedes that to reflect a full 25 per cent discount, the final sentence would have to be seven years and 10 months’ imprisonment — a difference of two months.
Discussion
There is discretion in almost all sentencing, but sentencing is not all discretion. The Supreme Court in Hessell v R stated:[10]
In this context the proper application of punishment for offending remains, as it was prior to the 2002 legislation, an evaluative task for sentencing judges and those judges who determine sentencing appeals. The task reflects the amalgam of sentencing discretion, on the one hand, which ensures the gravity of individual offending and circumstances of the offender are duly assessed, and sentencing consistency, on the other, which tempers sentencing judgment to ensure that sentencing outcomes reflect a policy of like treatment for similar circumstances.
[10]At [43].
That characterisation “recognises that to reach the end result the sentencing court must balance numerous and sometimes conflicting considerations, and that the range of outcomes within which reasonable disagreement is possible is frequently wide”.[11] Whether the exercise is evaluative, discretionary or a hybrid, it is a minimum standard of justice that the Judge direct him or herself to the correct legal elements, have regard to (and only to) relevant considerations and not reach a conclusion that is plain wrong.
[11]Kumar v R [2015] NZCA 460.
How then is mathematical error to be addressed on a sentencing appeal? Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal if satisfied both that there is error in the sentence imposed on conviction and that a different sentence should be imposed.[12] The approach adopted by this Court in such cases is as follows:
(a)A mathematical error resulting in a sentence more severe than the Judge patently intended must be corrected, even if the sentence imposed was still within the available range.[13] In such a case of plain error, it would be unjust for that error to be left uncorrected.[14]
(b)If it is not clear that the Judge made a mathematical error in arriving at the sentence imposed, the usual test will apply: is the sentence manifestly excessive (that is, beyond the available range)?
(c)An error favouring a defendant will not be corrected unless it has resulted in a sentence manifestly inadequate or inappropriate. In practice this approach is only taken on a prosecution appeal, brought with the Solicitor-General’s consent under s 246 of the Criminal Procedure Act.
[12]See for example McKeown v R [2017] NZCA 99 at [20]–[23].
[13]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
[14]Koroheke v R [2012] NZCA 368 at [21].
A sentence ultimately must be expressed as a term of years and months. But a Judge may express a sentence credit either temporally (a term of months – for example “six months”) or both mathematically (as a percentage) and then temporally (reducing the percentage to a period of months). The problem is when, on a dual approach, the products diverge. Two points follow.
First, in progressing from percentage to sentence, the Judge’s rounding of the mathematical product up to the nearest month, rather than down, is normally unobjectionable and not an error calling for correction.[15] Secondly, on a dual approach the potential for mathematical error, or at least apparent inconsistency, is enlarged. The primary question, consistent with the principles stated at [15] above, is what was intended by the Judge. It may be, for instance, that the Judge was determining credit on the basis of a period of months, and expressing the percentage in the alternative and only approximately. In such a case, if the period of months does not equate exactly to the percentage, there is no failure of intent, no patent error and no basis to intervene.
[15]Ludlow v R [2013] NZCA 196 at [19].
In this case, however, we are satisfied that the Judge’s prevailing intention was to grant a “full 25 per cent discount”, as he put it. The Crown concedes that that would have required a final sentence of seven years and ten months’ imprisonment, whereas the sentence imposed was eight years’ imprisonment. To that extent, the appeal must be allowed.
Result
The appeal against sentence is allowed. The sentence of eight years’ imprisonment is quashed and a sentence of seven years and ten months’ imprisonment is substituted. The minimum period of imprisonment of four years is quashed and a minimum period of imprisonment of three years and eleven months is substituted.
Solicitors:
Crown Law Office, Wellington for Respondent
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