IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE	
CRI-2023-019-1970
[2024] NZHC 2785	

THE KING	

v	

EDMOND BRIAN FERGUSON	

Hearing:	26 September 2024	
Appearances:	A S C Alcock for Crown S F Gilbert for Defendant	
Sentence:	26 September 2024	

SENTENCING NOTES OF BLANCHARD J

Solicitors/Counsel:
Hamilton Legal, Hamilton
S F Gilbert, Barrister, Hamilton

R v FERGUSON [2024] NZHC 2785 [26 September 2024]

[1]	Mr Ferguson, I am now going to sentence you for the sexual violation and other charges against you.

The offending

[2]	I will begin by describing your offending.

[3]	You have entered guilty pleas to the following charges:

(a)	three charges of sexual violation by unlawful sexual connection (one being representative);1

(b)	a charge of indecent act with intent to insult or offend;2

(c)	a charge of knowingly making an objectionable publication;3 and

(d)	two charges of failing to comply with conditions of reporting obligations under the Child Sex Offender Register.4

[4]	The account of your offending that I am about to give is one taken from the summaries of facts, which are agreed.

[5]	You and the complainant were both frequent visitors to the complainant’s grandparents’ address. You were treated by the complainant’s family as a trusted friend.

[6]	On or after January 2021, you and the complainant were at her grandparents’ house. She was aged six or seven. You pulled her pants down, you took several photographs of her genital area using your cell phone, and then you digitally penetrated her labia majora.

1	Crimes Act 1961, ss 128(1)(b) and 128B.
2	Section 126.
3	Films, Videos, and Publications Classifications Act 1993, s 124(1).
4	Child Protections (Child Sex Offender Government Agency Registration) Act 2016, s 39.

[7]	You offended against the complainant in a similar way on multiple occasions over several months. The complainant’s best estimate is that this occurred five or six times over a year.

[8]	On one occasion, you forcefully pushed the complainant down onto a bed. You then removed her pants and underwear and photographed her genital area with your cell phone. You then digitally penetrated the complainant’s labia majora and into her vagina. Following that you pulled your pants down and exposed your penis to the complainant.

[9]	On multiple occasions you offended against the complainant by exposing your penis to her.

[10]	The police analysed one of your cell phones and found an objectionable image. This was a live photo of female genitalia of a pre-pubertal child. It showed what appeared to be a finger retracting the left labia. The photograph was taken on 25 May 2021 at the complainant’s grandparents’ address.

[11]	You failed to comply with conditions of reporting obligations under the Child Sex Offender Register in two respects. First, you repeatedly failed to provided internet modem details when requested to do so. Second, you travelled for approximately three weeks without this being reported.

Previous convictions

[12]	You have previous convictions. You are a registered child sex offender.

[13]	Your earlier offending occurred in May 2013 against an 8-year-old girl with whom you had a close family relationship. Your convictions in relation to the earlier offending included a charge of sexual violation by unlawful sexual connection and five charges of indecent act on a girl under 12. On 4 July 2014, you were sentenced to a term of three years and six months’ imprisonment.

Victim impact statements

[14]	I have been provided with victim impact statements and these have been read out in Court today. They show the huge harm that you have caused. Words cannot express the level of harm that you have caused. I have carefully considered the statements and had regard to them in preparing for this sentencing.

Preventative detention

[15]	The Crown does not seek the imposition of preventative detention. The health assessors’ report assesses you as being at moderate to high risk of further sexual offending. However, you have not had the benefit of significant psychological intervention to date. In addition, the Crown considers that the risk you present may be appropriately managed by the imposition of an extended supervision order on release from imprisonment.

[16]	In the circumstances, I am not going to sentence you to preventative detention.

Approach to sentence

[17]	I will now describe how I will calculate your term of imprisonment.

[18]	First, I will select a starting point. This will be a number of years of imprisonment. In doing this I will treat as the lead charges the charges of sexual violation by unlawful sexual connection, but I will also have regard to your other offences.

[19]	Having determined the starting point, I will then consider whether I should increase your sentence having regard to the aggregating features connected to you as the offender.

[20]	Finally, I will consider whether there are any mitigating features that result in a reduction to your sentence.

The starting point

[21]	The starting point for your offending falls within the unlawful sexual connection or USC bands discussed in the case R v AM.5

[22]	The relevant culpability factors identified in R v AM are:6

(a)	Planning and premeditation — this was repetitive and targeted offending committed by a predatory offender over a sustained period and evidences a high degree of planning and premeditation.

(b)	Vulnerability of the complainant — the complainant was plainly vulnerable given she was aged between six and seven at the time of the offending.

(c)	Harm to the complainant — the complainant experienced physical pain at the time of the offending, together with fear. The victim impact statements show that she has also suffered ongoing psychological harm.

(d)	Scale of offending — the offending took place on multiple occasions over a year. You exposed your genitals to the complainant. You photographed her in particularly intimate ways.

(e)	Breach of trust — it is agreed that your offending involved a breach of trust. There is disagreement over the extent of the breach. The Crown says the breach was extreme. You were a close friend of the complainant’s family and, as a result, had access to her within a family home, a place that she was entitled to feel and be safe. Your lawyer disagrees and says that the breach of trust was not extreme. You were not the complainant’s parent, grandparent or guardian, or someone who had assumed responsibility for her. The victim impact statements that were read out today refer to your longstanding close relationship with

5	R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [113].
6	At [37]–[50].

the complainant’s family. This suggests to me that there was a very high level of breach of trust.

[23]	The Crown submits that the starting point should be in the region of six to seven years’ imprisonment. Your counsel submits the starting point should be six years’ imprisonment. Taking all of the aggravating features into account, I consider the correct starting point to be six-and-a-half years’ imprisonment.

Aggravating features of the offender

[24]	I now turn to the aggravating features specific to you as the offender. The matters raised by the Crown are your previous convictions and that you were on the Child Sex Offender Register. The Crown submits that the starting point should be uplifted by in the region of 12–18 months as a result of these matters.

[25]	Your lawyer says that it would be double counting to also uplift for your being on the Child Sex Offender Register. On this basis, your lawyer submits that an uplift of one year would be appropriate.

[26]	I can see the logic of your lawyer’s position on this point. But nevertheless I consider that there should be an uplift of 15 months.

Mitigating features

[27]	The final part of the sentencing process is a consideration of the mitigating features.

[28]	It is agreed that the only relevant mitigating feature justifying a reduction is your guilty pleas. There is disagreement over the extent of the reduction you should get for your guilty pleas. Your lawyer says you should receive the maximum, which is 25 per cent.

[29]	The Crown, on the other hand, say you should only receive 15–20 per cent as a reduction. The Crown says that you should not get the full 25 per cent because you

did not enter guilty pleas at the first opportunity. Guilty pleas were only entered following a case review hearing.

[30]	I have considered the timeline of events. It seems to me that you were attempting to resolve matters from an early time. In my view, you should receive the full 25 per cent credit.

[31]	This results in an end sentence of six years and one month’s imprisonment.

Minimum period of imprisonment

[32]	The Crown seeks a determination from me that the minimum period you spend in prison is two-thirds of your sentence of imprisonment. This is the maximum minimum period of imprisonment.7 Your lawyer agrees that this is appropriate, and so do I. You are to receive a minimum period of imprisonment of four years’ imprisonment.

Result

[33]	Mr Ferguson, please stand.

[34]	For your sexual violation by unlawful sexual connection offending, I sentence you to imprisonment of six years and one month. You are to serve a minimum period of four years.

[35]	In respect of the charge of indecent act with intent to insult or offend, I sentence you to one year’s imprisonment. This is to be served concurrently with the sentence for sexual violation by unlawful sexual connection.

[36]	For the charge of knowingly making an objectionable publication, I sentence you to one year’s imprisonment to be served concurrently with the sentence for sexual violation by unlawful connection.

7	Sentencing Act 2002, s 86(4)(a).

[37]	Last, for the charges of failing to comply with conditions of reporting obligations under the Child Sex Offender Register, I sentence you to three months’ imprisonment, also to be served concurrently.

[38]	Please stand down.

Blanchard J