R v Ferguson - [2013] NZHC 3343

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-013960 [2013] NZHC 3343

THE QUEEN

v

ROSANA HIKI POU FERGUSON

Hearing: 7 October - 1 November 2013

Counsel: W Cathcart and K Mills for the Crown
J Munro for prisoner Pou Ferguson

Sentencing: 12 December 2013

SENTENCING NOTES OF BROWN J

Solicitors: Crown Solicitors, Auckland
Counsel: J Munro, Auckland

R v POU FERGUSON [2013] NZHC 3343 [12 December 2013]

[1] Ms Pou Ferguson you appear for sentence following a jury trial which commenced on 7 October 2013.

[2] At the commencement of trial you pleaded guilty to a representative charge of common assault and on 1 November the jury found you guilty on the charge of common assault.

[3] There was evidence that you verbally abused the deceased on a number of occasions described in the counts against Mr Tulisi, in particular counts 1 and 7 as well as on other occasions. You appear for sentence for two offences: the representative charge of common assault concerning slaps to the face and/or head to which you pleaded guilty and the charge of common assault by shaving the deceased’s eyebrows and hair (count 12). In your interview you have admitted slapping the deceased a number of occasions with an open palm. Notwithstanding explanations which you have given in the course of your police interview I consider that the jury is likely to have concluded that your shaving of the eyebrows of the deceased was an expression of punishment and humiliation.

[4] It is the Crown’s submission that you knew the misery which the deceased was suffering at Station Road at the hands of Mr Tulisi and even if, from time to time, you may have shown warmth and compassion to him, there is clear evidence that you did deliberately contribute to the treatment by Mr Tulisi of Mr Wilson and appeared to encourage or endorse it. While you have not been charged with offences beyond the two assaults it is the Crown’s submission that the background to the offending must colour this Court’s assessment of it and I agree with the Crown’s submission in that respect.

Starting point

[5] Mr Munro has made the point that there is no tariff case for common assault and he submitted that reference to previous sentencing cases of common assault is of limited assistance due to the variations of the circumstances and the context involved with each assault and I agree that that is so. He has referred to the case of R v Nuku1

as helpful in indicating that, even in more serious assault cases than this, it has been recognised that a non-custodial starting point may be appropriate. He submitted that the offending in the present case was of a low level considering the nature of the actual physical assault concerned.

[6] The Crown has drawn attention to the decision of the Court of Appeal in R v Koloi,2 a case involving a nurse aide working with elderly patients at a hospital.…

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 R v Ferguson

Details

AGLC: R v Ferguson [2013] NZHC 3343
Case: [2013] NZHC 3343
Decision Date: 12 December 2013

CaseChat Overview and Summary

In the case of R v Ferguson, the defendant, Rosana Hiki Pou Ferguson, was sentenced following a jury trial for two counts of common assault. The first count was a representative charge to which Ferguson pleaded guilty, involving slaps to the face and/or head, while the second charge involved the shaving of the victim's eyebrows and hair. The court had to determine the appropriate starting point for sentencing, considering the nature of the assault and the aggravating circumstances such as the vulnerability of the victim and the repetitive nature of the offences. The Crown argued for a starting point of at least six months imprisonment, while the defence suggested a non-custodial starting point was appropriate. The judge ultimately settled on an eight-month starting point for the representative charge.

The legal issues before the court included the appropriate starting point for sentencing, the consideration of personal circumstances and remorse, and the application of discounts for the guilty plea and remorse shown by Ferguson. The court considered various precedents and the maximum penalty for the offence, which is one year imprisonment. The defence argued for a non-custodial sentence, while the Crown opposed this, citing the nature of the offences and the need for deterrence. The court acknowledged Ferguson's remorse and the late guilty plea, which warranted a discount in the sentence.

The court reasoned that despite the late guilty plea, Ferguson was entitled to a discount, settling on a 15% reduction. This reduction, combined with a one-month reduction for remorse, resulted in a final sentence of six months imprisonment for the representative charge and three months for the further charge, to be served concurrently. The court imposed special conditions for Ferguson to attend the Living without Violence programme and any other counselling or programmes as directed by the programme facilitator and probation officer. The final orders were that Ferguson was sentenced to six months imprisonment for the representative charge and three months for the further charge, both to be served concurrently, with special conditions for attendance at relevant programmes.

Orders