Ferguson v R [2014] NZCA 36 (26 February 2014)

Last Updated: 5 March 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA846/2013 [2014] NZCA 36
BETWEEN	ROSANA HIKI POU FERGUSON Appellant
AND	THE QUEEN Respondent

Hearing:	13 February 2014
Court:	Harrison, Asher and Dobson JJ
Counsel:	J D Munro and S J Revell for Appellant J M Jelas for Respondent
Judgment:	26 February 2014 at 3.00 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

2. The appellant must surrender herself to the Registrar at the High Court at Auckland at 9 am on Friday, 28 February 2014 to commence her sentence.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Introduction

[1] On 18 March 2012 emergency services were called to attend 33 year old Paul Wilson who was found to be unresponsive and not breathing in his bed. Mr Wilson had been living with Peau Tulisi and his partner, the appellant, Rosana Pou Ferguson.
[2] Mr Tulisi was charged with the manslaughter of Mr Wilson, and in addition was charged on three counts of assault with a weapon, one charge of assault with intent to injure and six charges of common assault. The appellant was charged with one representative count of assault for the period from 1 November 2010 to 17 March 2012 for actions which included slaps to the face or head, and a second count of assault for shaving Mr Wilson’s head hair and eyebrows. She was not charged as a party to Mr Tulisi’s assaults or to the manslaughter charge.
[3] At the start of the trial Ms Pou Ferguson pleaded guilty to the representative count of common assault, but defended the single count relating to shaving the hair and eyebrows. The jury found her guilty of that second count. It also delivered verdicts of guilty in relation to the counts against Mr Tulisi.
[4] Mr Tulisi and Ms Pou Ferguson were sentenced separately. Mr Tulisi was sentenced by the trial Judge, Brown J, to 12 years’ imprisonment and directed to serve a minimum period of six years in prison. In a separate sentence Brown J sentenced Ms Pou Ferguson to six months’ imprisonment with special conditions relating to attendance at violence and counselling programmes. A submission that she should be sentenced to home detention instead of imprisonment was not accepted by the Judge.
[5] Ms Pou Ferguson appealed against that sentence of six months’ imprisonment. It is submitted that the sentence should have been home detention. Ms Pou Ferguson has been on bail pending the outcome of this appeal.

Facts relating to the offending

[6] The Police summary of facts was not contested. Mr Wilson was described as a sickness beneficiary who was a simple person of mild manner. He had been born with a medical condition commonly referred to as club foot. It was while living with Mr Tulisi and Ms Pou Ferguson that Mr Wilson was subjected to continuous domestic violence and treated like a child. There were frequent and escalating assaults by Mr Tulisi. Ms Pou Ferguson assaulted Mr Wilson as a form of punishment, and would have him do “exercises”. Her actions included making Mr Wilson sit on the floor on his buttocks and then requiring him to pull himself along the floor, and him standing on his tip-toes. These punishments would last for approximately an hour. On other occasions Ms Pou Ferguson would make Mr Wilson sit in the corner and face the wall. She would also assault him by slapping him with an open hand to the cheek and top of his head. This slapping happened on at least four occasions.
[7] In relation to the second specific count, it was stated that on an occasion when Mr Wilson did something wrong and did not listen to Ms Pou Ferguson, she shaved his hair and eyebrows off as a form of punishment.

Other background matters

[8] In sentencing Ms Pou Ferguson, Brown J observed that the shaving of Mr Wilson’s eyebrows was an expression of punishment and humiliation. He observed that while on occasions Ms Pou Ferguson may have shown warmth and compassion to Mr Wilson:^[1]

... 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.

[9] The Judge fixed a starting point of eight months’ imprisonment. He deducted one month for remorse and one month for a very late guilty plea to reach an end sentence of six months’ imprisonment. In relation to home detention he observed:^[2]

... I do not consider that such a sentence would reflect the nature and duration of the offending and the related sentencing principles. ... In that regard I observe that in the pre-sentence report the recommendation was for a sentence of imprisonment with special conditions of counselling.

He did not set out the related sentencing principles that he relied on.

[10] The pre-sentence report noted that Ms Pou Ferguson showed some remorse for her offending, but also noted that she tried to minimise its seriousness and stated that she just wanted to wake up the victim and not hurt him.
[11] Ms Pou Ferguson also provided a letter to the Judge in which she expressed affection for Mr Wilson and regretted his passing, but only a very limited acknowledgement of wrongdoing.
[12] Mr Munro who appeared for Ms Pou Ferguson also obtained leave to file fresh evidence in the form of a report from a clinical forensic psychologist, Dr Joseph Sakdalan, reporting on Ms Pou Ferguson’s mental health history and providing a current assessment, including a discussion of her responses to the offending. The Crown did not oppose the admission of that evidence, and we grant leave and take the report into account.

Home detention

[13] Mr Munro has not challenged the decision by the Judge that the appropriate sentence of imprisonment would have been six months’ imprisonment. The issue for us to determine is whether the Judge erred in the exercise of his discretion in deciding that the sentencing option of home detention should not be exercised.
[14] Mr Munro submitted that home detention would have been the least restrictive outcome of the sentencing process and was an available sentence. He argued that the Judge failed to analyse the purposes and principles of sentencing in reaching his decision, and that the appellant had mental health issues and was at a low risk of further offending. These factors should have been taken into account. He observed that the Judge found that Ms Pou Ferguson was likely to have suffered a degree of physical and mental pressure from Mr Tulisi, and that this provided a further reason for directing a sentence of home detention. There had been insufficient weight placed on the fact that these were relatively low level assaults without injury.
[15] The summary of facts described Mr Wilson as a simple person of a mild nature and a hard worker. The Judge described him as a “gentle, passive and submissive man who never stood up for himself and who never fought back”.^[3] It is relevant in assessing sentence that Ms Pou Ferguson, who was a 42 year old woman, had no prior relevant convictions and had clearly had a difficult and rather sad life. While the psychologist’s report did not indicate a current mental illness, she was described as having longstanding complex mental health issues which required long term individual therapy for her to effectively deal with her problems. It was observed that she might have limited access to psychological treatment for her mental health problems if she was returned to prison to serve her sentence.
[16] On the other hand, it was also observed that she had not taken full responsibility for her offending and assumed a victimised stance. She was also asked about her experiences in prison, and disclosed that she felt safe within the confines of a prison and relieved not to have to worry about ongoing daily stresses. She did not know how she would feel if she had to return to prison.

Our analysis

[17] We consider that there were a number of factors which point against home detention as the appropriate sentence. The first was that the representative charge covered a period of approximately six months in which there were numerous assaults, some of which went on for an hour.^[4] The acts of forcing an adult to crawl on his bottom or stand on tip-toes for long periods, slapping him, and the shaving of his hair and eyebrows all show a significant level of ongoing cruelty, beyond that which normally occurs in common assault.
[18] We agree with the Judge that the assaults have to be seen in context. While it would have been wrong to sentence Ms Pou Ferguson effectively as a party to the manslaughter, and the Judge did not do so, it was relevant that Ms Pou Ferguson’s assaults occurred in the context of more and more severe beatings being administered by Mr Tulisi. The culpability that attaches to her behaviour increases as a consequence of her assaults being part of a general pattern of significant and ongoing escalating cruelty. It must be observed also that the assaults contained an element of deliberate humiliation of a vulnerable person.
[19] The Judge had fairly noted a number of matters in Ms Pou Ferguson’s favour, including a generous finding in her favour in relation to remorse, and an acknowledgement that she would have been under a degree of physical and mental pressure from Mr Tulisi. But there was no evidence showing that she was specifically directed to carry out the assaults. While we accept that Ms Pou Ferguson has mental health issues, there is nothing to indicate that they lessen her culpability in any particular way. Nor, on the basis of Mr Sakdalan’s report, do such issues make any term of imprisonment a more difficult sentence to endure.
[20] The one month discount for remorse was in our view a generous allowance, as Ms Pou Ferguson’s remorse can be seen as very qualified. It appears from the probation report and the later report of Mr Sakdalan produced by Mr Munro, that she has not really accepted her wrongdoing. She is not to be punished for that, but in assessing whether a sentence of home detention is appropriate a failure to acknowledge culpability (acknowledgement providing some indication that there will be no repeat of the wrongdoing) is relevant to determining whether to grant home detention.
[21] Given the level of cruelty that we have identified and the context in which the assaults took place, there was a strong need to denounce Ms Pou Ferguson’s conduct and to deter her personally and deter others. The response to that need to denounce was a matter of judicial discretion.
[22] In our view the Judge has not been shown to have erred in the exercise of his discretion. Indeed, in our view, given the prolonged and escalating cruelty, there was good reason to not sentence Ms Pou Ferguson to home detention. There is nothing in the psychologist’s report that changes our view.

Result

[23] The appeal is dismissed.
[24] Ms Pou Ferguson must surrender herself to the Registrar of the High Court at Auckland at 9 am on Friday, 28 February 2014 to commence her sentence. The Crown is requested to advise Court personnel.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] R v Pou Ferguson [2013] NZHC 3343 at [4].

^[2] At [17].

^[3] R v Tulisi [2013] NZHC 3342 at [3].

^[4] The period alleged in the representative charge was from 1 November 2010 to 17 March 2012, but Ms Jelas acknowledged that the period was approximately six months, citing an acknowledgement by Ms Pou Ferguson when she was interviewed by the police that the assaults occurred over approximately that length.