FERGUSON v NEW ZEALAND POLICE [2019] NZHC 2753

FERGUSON v NEW ZEALAND POLICE [2019] NZHC 2753IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI 2019-419-000069[2019] NZHC 2753BETWEEN RORY FERGUSONAppellantAND NEW ZEALAND POLICERespondentHearing: 24 October 2019Appearances: R Quin for the AppellantA Alcock for the CrownJudgment: 24 October 2019ORAL JUDGMENT OF GWYN JCounsel/Solicitors:R Quin, Barrister, HamiltonCrown Solicitors, HamiltonIntroduction[1] Rory Ferguson pleaded guilty to possessing ecstasy,1 possessing utensils forthe use of methamphetamine,2 and assaulting a person in a family relationship.3 On17 September 2019, Judge N D Cocurullo sentenced Mr Ferguson to seven months'imprisonment. Mr Ferguson now appeals this sentence.Offending[2] Mr Ferguson and the victim had been in an on again off again relationship forapproximately eight years. On 14 May 2019, Mr Ferguson and the victim were outdriving in Morrinsville; Mr Ferguson was seated in the passenger seat and the victimwas driving the vehicle. The pair got into a verbal argument and the victim began todrive poorly, crashing into a car and a sign.[3] In an attempt to get the victim to stop driving, Mr Ferguson grabbed thesteering wheel and steered the vehicle towards a tree. Eventually the vehicle wasstopped and Mr Ferguson took over driving. While driving he slapped the victim tothe head using a hat.[4] After some time, the vehicle stopped for a second time, and the victim resumeddriving. The victim drove a short distance before again stopping. Shortly afterstopping the Police arrived and searched the vehicle pursuant to the Search andSurveillance Act 2012.[5] In the vehicle the Police located a small black bag containing amethamphetamine pipe, a small amount of cannabis and a small amount of GammaButyrolactone (GBL) – a liquid form of ecstasy.[6] Mr Ferguson admitted that the drugs and utensils were his and were for hisown use. He also admitted hitting the victim.1 Misuse of Drugs Act 1975, s 7(1)(a) and (2)(b). Liable to a term of imprisonment not exceedingthree months, and/or a fine of up to $500.2 Section 13(1)(a) and (3). Liable to a term of imprisonment not exceeding three months, and/or afine of up to $500.3 Crimes Act 1961, s 194A. Liable to a term of imprisonment not exceeding two years.District Court[7] On 17 September 2019, Mr Ferguson was sentenced in the District Courtbefore Judge Cocurullo.4[8] Judge Cocurullo accepted that for the purposes of sentencing he had two starkchoices; to impose either intensive supervision or a sentence of imprisonment.5 GivenMr Ferguson's history of poor compliance with community-based sentences and a lackof suitable electronically monitored considerations, the Judge was satisfied that asentence of imprisonment was the least restrictive option.6[9] The Judge took the assault of a person in a family relationship as the leadcharge and for this offence adopted a starting point of six months' imprisonment.7 Thiswas then uplifted by two months to reflect the illicit drug charges and then uplifted bya further three months to reflect Mr Ferguson's prior convictions, specifically threeprior convictions for male assaults female, each of which involved the same victim.8[10] The Judge was satisfied that Mr Ferguson was remorseful, having read thedefendant's letter which acknowledged he had slipped back into significant drug use,was sorry for his conduct and was pleased that his time in prison up until the date ofsentencing had allowed him to get clean.9 For remorse the Judge reduced the sentenceby one month. The Judge then applied the full 25 per cent discount to take account ofthe early guilty pleas.[11] On the lead charge of assault on a person in a family relationship this resultedin a final (rounded) sentence of seven months' imprisonment (with the standard andspecial release conditions recorded in the pre-sentence report).10 In regard to thecharges of possession of GBL and possession of the methamphetamine pipe, the Judgesentenced Mr Ferguson to two months' imprisonment on each charge, to be servedconcurrently.4 Police v Ferguson [2019] NZDC 18961.5 At [8].6 At [11].7 At [12].8 At [12].9 At [5].10 At [12].[12] Despite the end sentence qualifying as a short term sentence the Judge declinedto consider a sentence of home detention as he had already determined that a sentenceof imprisonment was the only available option and that an electronically monitoredsentence would be "totally inappropriate".11SubmissionsAppellant[13] Mr Quin, for the appellant, argues that the sentence imposed by JudgeCocurullo was manifestly excessive.[14] Mr Quin says that the starting point of six months' imprisonment on the leadcharge of assault in a family relationship was too high, the offending involved a singleslap to the head and accordingly falls at the lowest end of the scale and should havebeen reflected in a lower starting point.[15] Mr Quin also contends that the only way the Judge could have reached astarting point of six months was by factoring in the appellant's previous convictionsand the two other drugs charges. As such, any subsequent uplifts were effectivelydouble counting, and ignored the principle of totality.[16] Considering the remorse letter that Mr Ferguson wrote to the court, the insighthe had into his offending, and a fairly positive pre-sentence report, Mr Quin suggeststhat an end sentence of four months' imprisonment with release conditions would havebeen the least restrictive outcome appropriate in the circumstances.Respondent[17] Counsel for the respondent opposes this appeal on the ground that the endsentence was not manifestly excessive.[18] Counsel submits that the starting point of six months' imprisonment was nottoo high. Counsel points me to Edwards v Police, a case involving similar but more11 At [13].serious offending where the Judge adopted a starting point of nine months'imprisonment, and says that relative to the offending in Edwards a starting point of sixmonths was appropriate for the current offending.12 Counsel emphasises that, similarto Edwards, this case involves repeat offending against the same victim and warrantsa deterrent sentence.[19] Counsel also says that the uplifts applied by the Judge were warranted and werecarried out with reference to the principle of totality, again noting that a history of drugoffending and violent offending against the same victim supported a sentence thatwould deter future offending. In addition, counsel says that the Judge gave adequateconsideration to the factors that warranted a discount, including both remorse and theguilty plea discount. Accordingly, counsel says that the end sentence was appropriate,and the appeal ought to be dismissed.Law[20] Pursuant to s 244 of the Criminal Procedure Act 2011 (CPA), a defendant mayappeal against sentence. The appeal is to be heard by the first appeal court, which hereis the High Court (s 247).[21] Under section 250(2) of the CPA this Court must allow the appeal if satisfiedthat:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[22] In any other case, the Court must dismiss the appeal.13[23] The Court of Appeal in Tutakangahau v R has recently confirmed that s 250(2)was not intended to change the previous approach taken by the courts under the12 Edwards v Police [2019] NZHC 932.13 Criminal Procedure Act 2011, s 250(3).Summary Proceedings Act 1957.14 The Court of Appeal held that, the measure oferror that must be shown, is that the sentence is "manifestly excessive".15 The HighCourt will not intervene where the sentence is within the range that can properly bejustified by accepted sentencing principles. Whether a sentence is manifestlyexcessive is to be examined in terms of the sentence given, rather than the process bywhich the sentence is reached.Analysis[24] The appellant contends that Judge Cocurullo erred in adopting a starting pointthat was too high, and that such a high starting point could only have been reached ifthe Judge had taken into account the additional charges Mr Ferguson faced, as well ashis prior convictions. Judge Cocurullo then gave an uplift for these factors, and theappellant says that the Judge also erred in this respect as the uplift effectivelyamounted to double counting.[25] Judge Cocurullo adopted the charge of assault on a person in a familyrelationship as the lead charge. As the charge with the highest maximum penalty thisis the correct approach. Section 194A – assault on a person in a family relationship –is a relatively new offence, inserted into the Crimes Act 1961 in December 2018.16Accordingly, there are very few sentences pursuant to this section that are capable ofacting as comparators, one of the few being Edwards, referred to me by the respondent.[26] Prior to the enactment of a discrete offence for assault on a person in a familyrelationship, violent offending against a domestic partner would typically result in acharge of male assaults female.17 This is an offence that has been identified ascovering a broad range of offending with varying degrees of culpability, often resultingin difficulties when determining an appropriate sentence. This was acknowledged byBrewer J in Wati v R:1814 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26]–[27].15 At [26]–[27].16 Family Violence (Amendments) Act 2018, s 25(1).17 Crimes Act 1961, s 194(b).18 Wati v R [2015] NZHC 2064 at [18]. Cited with approval by the Court of Appeal in Goodman v R[2016] NZCA 64 at [12].[18] As to the male assaults female charges, I note there is no tariff for this offence.For single offences, a sentence of imprisonment can range from two months to 12months' imprisonment. It is never easy to fix a starting point in cases involvingdomestic violence because the circumstances of cases vary so widely and sentencingJudges must work within a range available to them for multiple offences(footnotesomitted).[27] Brewer J's remarks in regard to the offence of male assaults female areapplicable to offending under s 194A as the offence carries the same maximum penaltyand will also capture family violence that ranges in both type and culpability. I amguided by Brewer J's approach and accept that an appropriate sentence will fallsomewhere within the range of two to 12 months' imprisonment.[28] Mr Quin, for the appellant, contends that the offending involved violence thatmay be described as falling toward the lower end of the spectrum. Although theoffending involved a slap to the head, I agree with that submission. Despite this, therespondent says that with regard to Edwards a starting point of six months wasappropriate. Edwards involved, among others, a conviction under s 194A, where MrEdwards had punched his partner to the shoulder and then to the jaw. In regard to thisoffence the Judge adopted a starting point of nine months' imprisonment. On appealthe Judge upheld the starting point but noted that it fell toward the top of the availablerange.19 The determinative factor leading the Judge to uphold the starting point – andultimately the sentence – was the fact that the offending represented the seventhviolent offence against the same victim in less than two years, and as such a deterrentsentence was necessary.20[29] The offending in Edwards was of a more serious nature than the currentoffending; a slap to the face with a hat being less serious than multiple punches. Astarting point of less than nine months is therefore warranted. I am satisfied that astarting point of between four and seven months is appropriate.[30] Having regard to the determinative factor in Edwards, namely the need to deterfuture offending, I am satisfied that a starting point should fall toward the lower endof the identified band as this factor does not feature in the current offending to the19 Edwards v Police, above n 12, at [7].20 At [7] – [8].same degree. Mr Ferguson has three prior convictions for male assaults female, allagainst the current victim. However, the most recent of these was in 2013, and MrFerguson, in his letter to the Court, acknowledges that the offending was a result ofhis relapse into drug addiction, a habit he has since beaten whilst incarcerated. Inthese circumstances, a starting point of four months' imprisonment is appropriate.[31] I am satisfied that an uplift is warranted for the two drug-related convictions.Taking into account the principle of totality I am satisfied that the uplift of two monthsapplied by Judge Cocurullo was appropriate. I am also satisfied that an uplift isrequired to take into account Mr Ferguson's prior drug related and violent offences.However, as the most recent of these convictions was in 2013, I am satisfied that anuplift of one month is appropriate.[32] Judge Cocurullo applied a one month deduction to take into account remorseand personal mitigating factors, and applied the maximum discount of 25 per cent forearly guilty pleas. I see no reason to disturb these deductions. This results in an endrounded sentence of four months' imprisonment.[33] Although this results in an overall deduction of only three months, it isequivalent to a 43 per cent deduction in sentence. In these circumstances I am satisfiedthat the District Court erred in sentencing the appellant to seven months'imprisonment, and that the end sentence was manifestly excessive.Result[34] The appeal is allowed. The appellant's sentence of seven months'imprisonment is quashed.[35] On the charge of assault on a person in a family relationship you are sentencedto four months' imprisonment with the standard and special release conditionsspecified in the pre-sentence report.[36] On the charges of possessing GBL and possession of utensils for the use ofmethamphetamine you are sentenced on each charge to two months' imprisonment, tobe served concurrently with the four month term.______________________Gwyn J