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. The nurse aide slapped a patient with an open palm on the back of the head.  An end sentence of six months imprisonment was imposed although this was reduced to three months imprisonment when one of the two convictions relating to the nurse was quashed.

[7]      The Crown submits that Koloi suggests a starting point of at least six months imprisonment   is   appropriate   in   the   present   case,   drawing   attention   to   the vulnerability of Mr Wilson which was known to you, the fact that the shaving of his eyebrows was designed to humiliate and degrade him (which I accept), the fact that the offending against the deceased was repetitive and that the starting point in Koloi was higher than six months imprisonment although precisely what it was is not able to be determined.

[8]      Having considered the authorities cited, noting the maximum penalty is one of one years imprisonment and accepting the Crown’s submission that concurrent sentences are appropriate, I consider a period of eight months imprisonment is an appropriate starting point for the representative charge.

Personal circumstances and pre-sentence report

[9]      I have read the pre-sentence report.  You are 42 years old.  You suffer from a number of difficult medical conditions.

[10]    With reference to the offending you initially attempted to minimise the seriousness of it even to the point of placing blame on Mr Wilson himself but during the interview you clearly showed remorse regarding your offending and you stated

you regretted your actions.  You have provided a lengthy letter to the Court in which you state that you regret everything that happened to Mr Wilson and I am pleased to see that letter.

[11]     I recognise that you have had not a particularly easy life and that, as your counsel suggests, it is likely you have been under a degree of physical and mental pressure from  Mr Tulisi.   The Crown  submits that  there are no  aggravating or mitigating factors.   I agree with the former but I consider that your indication of remorse is a mitigating factor albeit in that stage of the equation and I will allow a reduction of one month for that factor.

Guilty plea

[12]     Mr Munro has referred to the attempts to resolve the charges by offering guilty pleas and that you should be offered credit for those attempts in addition to the guilty plea in relation to the representative charge at the commencement of the trial.

[13]     While the Crown accepts that a guilty plea would normally attract a discount in sentence, potentially up to 25 per cent, having regard to the factors set out in R v Hessell3   the  Crown  submits  that  you  should  not  be  given  a  discount  for  three reasons:

(a)       The plea was on the morning of the trial;

(b)      It did not remove the need for any witnesses to give evidence; and

(c)       The plea was entered against the background of admissions in your

DVD interview.

[14]     The Crown submits however that if a discount is appropriate then it should not exceed five per cent.

[15]     I take a more lenient view than that.  I consider that, late though it was, you did enter a guilty plea on the representative charge and I consider you are entitled to

a discount.  I consider that a discount of 15 per cent is appropriate which equates to a further month.

Conclusion

[16]     Having regard to the discounts for remorse and the guilty plea I reach a final figure of six months imprisonment.

[17]    Mr Munro has submitted that a community based sentence or intensive supervision (perhaps coupled with community work) would meet the principles of sentencing.  However I do not consider that such a sentence would reflect the nature and duration of the offending and the related sentencing principles.  I do not consider that this is a case appropriate for home detention.  In that regard I observe that in the pre-sentence report the recommendation was for a sentence of imprisonment with special conditions of counselling.

[18]     So I ask you please to stand Ms Pou Ferguson.

[19]     On  the  representative  count  to  which  you  have  pleaded  guilty  you  are sentenced to a term of imprisonment of six months with two special conditions:

(a)       To attend the Living without Violence programme as directed and to the satisfaction of the programme facilitator and probation officer; and

(b)To attend any such counselling or programme as directed and to the satisfaction of the programme facilitator and probation officer.

[20]     On the further charge of assault on which you were found guilty you are imprisoned for a period of three months to be served concurrently that is to be served at the same time as the term of six months imprisonment for the representative count.

[21]     Stand down.

Brown J