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Ferris-Bromley v R

Ferris-Bromley v R

Case [2017] NZCA 115 10 April 2017

Mathematical Error in Sentencing

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA263/2016
[2017] NZCA 115

BETWEEN	JESSE JOHN FERRIS-BROMLEY Appellant
AND	THE QUEEN Respondent

Hearing:	9 March 2017
Court:	Kós P, Brown and Williams JJ
Counsel:	R B Crowley and L A Scott for Appellant S K Barr and C J Hurd for Respondent
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…

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 Ferris-Bromley v R

Details

AGLC: Ferris-Bromley v R [2017] NZCA 115
Case: [2017] NZCA 115
Decision Date: 10 April 2017 at 11.00 am

CaseChat Overview and Summary

Jesse Ferris-Bromley appeals his sentence for the manslaughter of his girlfriend, Virginia Ford, and two charges of causing grievous bodily harm. The court initially sentenced him to eight years for manslaughter and two years for each grievous bodily harm charge, all to run concurrently. The appeal focuses on whether the sentencing judge appropriately considered the appellant's remorse and good character, and whether there was a mathematical error in applying the 25% discount for his early guilty plea.

The court examined whether the appellant deserved credit for his good character, noting that the Judge rejected such credit because the offending was prolonged and serious, not a youthful indiscretion. The appeal court agreed that in light of the ongoing domestic violence, no credit was appropriate. Regarding remorse, the court concluded that while the appellant's remorse was genuine and significant, the six-month credit applied was within an acceptable range. The primary issue was the mathematical error in applying the 25% discount for the guilty plea, which should have resulted in a sentence of seven years and ten months, rather than eight years.

The appeal court found that the mathematical error in applying the 25% discount for the guilty plea required correction. The sentence of eight years was quashed and replaced with a sentence of seven years and ten months imprisonment. The minimum period of imprisonment was also adjusted to three years and eleven months.

Orders