R v Ferguson [2008] NSWSC 761

New South Wales Supreme Court

CITATION : R v Ferguson [2008] NSWSC 761

HEARING DATE(S) : 28/04/08 - 12/05/08

JUDGMENT DATE : 25 July 2008

JUDGMENT OF : Barr J at 1

DECISION : A non-parole period is fixed four years, which will be taken to have commenced on the day of arrest, 19 November 2006 and which will expire on 18 November 2010. There will be a balance of sentence of three years. The sentence will expire on 18 November 2013. The first day eligible for release on parole will be 18 November 2010.

CATCHWORDS : CRIMINAL LAW - sentence - guilty plea to manslaughter - substantial impairment by an abnormality of mind arising from an underlying condition

PARTIES : Regina Sadatia Anne Ferguson

FILE NUMBER(S) : SC 2007/3677

COUNSEL : T Hoyle SC (Crown) P Winch (Defence)

SOLICITORS : Office of the Director of Public Prosecutions(Crown) Nicholas Moir and Associates (Defence)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

25 JULY 2008

2007 / 3677 REGINA v SADATIA ANNE FERGUSON

REMARKS ON SENTENCE 1 HIS HONOUR: The offender, Sadatia Anne Ferguson, is to be sentenced for the manslaughter of Tae Simon at Forster on 19 November 2006. She was charged with murder and was committed to this Court for trial. She first appeared on 5 October 2007. She asked not to be arraigned and her trial date was fixed to begin 21 April 2008. She was arraigned on 7 December and pleaded not guilty of Mr Simon's murder but guilty of his manslaughter. The Crown declined to accept that plea in discharge of the indictment and the trial date was confirmed. The trial was held in due course but the jury were unable to agree. The Crown reconsidered its position. The offender was arraigned again and pleaded as she had before. This time the Crown accepted the plea in discharge of the indictment. 2 At the time of the deceased's death he was 22 years old and the offender was 36 years old. They had known one another all their joint lives. The deceased's mother and the offender's father were first cousins. In October 2005 the deceased, who was in need of accommodation, moved into a spare room at the offender's house. Early in 2006 a sexual relationship developed. It was not a happy one, however. The offender was not unacquainted with illegal drugs, but had never taken them in any great quantity. She substantially increased her use of them under the influence and encouragement of the deceased. Their preferred drug was amphetamine and he taught her to inject it. She began taking very high doses. Their relationship was unsatisfactory for other reasons as well. The deceased was sexually very demanding and seemed to enjoy humiliating the offender. He used to accuse her of having sexual relations with others. He made offensive remarks about having sexual intercourse with her and her 17 year old daughter. She became depressed. She saw her general practitioner, who prescribed an anti-depressant drug, Fluvoxamine. The deceased, who was also thought to be depressed, was prescribed an anti-depressant. They stopped taking their medicines about two months before the death of the deceased partly, it seems, because they had resumed using amphetamine. 3 Their drug abuse resumed and the offender was taking increasingly large amounts by injection, sometimes for several days on end. They would go for days without sleep during which the deceased would "drill" the offender with questions about her other relationships. The accusations about affairs continued. The deceased began hitting the offender and threatened to kill her. There were several weapons at the house, including a samurai sword and baseball bats. The deceased told the offender that if she ever tried to leave him he would kill her. He said that he had friends upon whom he could call to do such a thing. 4 On the Friday before his death, the offender finally decided to leave the deceased. An aunt gave her a lift to Lismore. Over the weekend she spoke to the deceased on the telephone and he begged her to return. He seemed distressed and she was afraid that he would attempt suicide. She did not wish to feel responsible for his death. The bus was the only way she could return but it did not enter Forster. She needed transport from a point on the Pacific Highway into Forster itself. Following her conversations with the deceased she understood that he would pick her up, using her car, which she had left behind, and take her home. She took the bus accordingly but the deceased did not collect her. She managed to make her way home by other means. The deceased accused her of sleeping with other men during the days that she had been away. They went to a dealer's house to try to buy drugs. The deceased drove off in her car, leaving her there. She made her way home. The deceased was there. He accused her of sleeping with the drug dealer and told her to go elsewhere if she wanted anything to eat. She went to her room to pack her belongings, intending to leave again. The deceased followed her to the bedroom door, criticising and threatening her. She felt that he had "set her up". He had got her to return from Lismore thinking that he wanted and needed her. The last words she remembered him saying were, "you will always have to look over your shoulder". She thought that that meant that if she left he would come after her. She took a knife and stabbed him. She inflicted a number of wounds, at least three of them to the chest or shoulder. One of them penetrated about nine or ten centimetres, damaging the heart and ultimately entering the abdominal cavity. It was the wound that caused death. There were several, other knife wounds on the body, some of them defence wounds. 5 There was evidence at the trial which, if accepted, might support a verdict of not guilty of murder but guilty of manslaughter, either by substantial impairment by abnormality of mind or by provocation. When accepting the offender's plea, the Crown acknowledged that, and the parties agree that, when she killed the deceased the offender's capacity to control herself was substantially impaired by an abnormality of mind arising from an underlying condition and that the impairment was so substantial as to warrant her liability for murder being reduced to manslaughter. 6 The offender was raised in Taree. Her parents gave her a stable upbringing. However, the husband of one of her aunts sexually abused her for nine years, beginning when she was about five years of age and ending when she was 14 years of age. She kept the abuse to herself during all that time. Although she finally exposed the man, he was never charged. 7 There is a history of depression in the offender's family. One of her sisters was treated for that disease. In 2000, after her two children had left her to live with their estranged father, the offender attempted suicide. She was admitted to hospital at Taree and came under the care of a psychiatrist. She underwent counselling and took anti-depressant medicine for about 12 months. She began using amphetamine in the same year. About one year before the deceased's death there was the second referral, mentioned above, for psychiatric treatment. The offender was arrested on the day of her offence and has remained in custody. She has been treated for depression during that time. 8 Three consulting psychiatrists gave evidence, Dr Nielssen, Dr Westmore and Dr Allnutt. All agree that when she killed the deceased the offender was suffering from a major depressive illness. It is apparent that she was also suffering from amphetamine abuse disorder. Her depression was an abnormality of mind. I am satisfied that it impaired her ability to control herself. 9 I am satisfied that so provocative was the deceased's abuse of the offender that she finally and suddenly lost the ability to control herself. Although she intended to kill the deceased, she formed that intention suddenly, a very short time before she committed the act causing death. Afterwards she was just as quickly overcome by remorse. 10 The offender continues to be remorseful. Consistently with that attitude, she offered a plea of guilty of manslaughter at an early stage of the proceedings in this Court. Her early plea entitles her to a substantial discount from her sentence. 11 The offender is a person of prior good character. She is unlikely to offend again. She has a history of employment in the health profession and has, I think, reasonable prospects of gaining employment again upon her release from custody and living a useful life in the community. 12 The offender continues to run the risk of lapsing again into depression and I think that she will need therapy to head off that eventuality. She also needs help in staying off the use of illegal drugs, particularly amphetamine and methamphetamine. Those special needs justify my fixing a parole period which exceeds one third of the non-parole period I have in mind. 13 A victim impact statement was tendered on behalf of members of the deceased's family. They held him in very high regard and have suffered as a result of his death. The sympathy of the Court goes out to them. 14 Sadatia Anne Ferguson, you are convicted of the manslaughter of Tae Simon. I sentence you to imprisonment. I fix a non-parole period of four years, which will be taken to have commenced on the day of your arrest, 19 November 2006 and which will expire on 18 November 2010. There will be a balance of sentence of three years. Your sentence will expire on 18 November 2013. The first day upon which you will become eligible for release on parole will be 18 November 2010.