Published: July 2009

UPDATE: jason ferguson

Jason, three
months before
he killed John
Sorrenson.

ason Ferguson remains

behind bars for the 2002
killing of the man he
says tried to sexually
molest him when he was 19
but it is not for want of effort
by those who believe he should
not be in jail in the first place.
After 13 years, four legal
actions and four parole hearings,
Ferguson still wont be freed
until next year at the earliest
as authorities consider the
best ways to reintegrate him
into the community, given his
compromised intellect.
As North & South revealed in
our cover story in 2009, Ferguson
has the intellectual ability of
an average six-year-old.
An appeal later that year on
the grounds he was unfit to stand
trial because of his intellectual
disability was dismissed by
the Court of Appeal in 2010,

112

despite the court hearing that

Ferguson was also suffering posttraumatic stress disorder after
sex abuse in his childhood.
It was a decision that appalled
some lawyers, including highprofile advocate, the late Greg
King, who in an email to Fergusons
lawyer Chris Tennet said, I cant
believe the appeal was dismissed!!
The CofA totally missed the point.
The PTSD explained not just
his hyper-sensitivity but also his
disproportionate response to the
provocation and also, critically,
his loss of self-control! I totally
disagree with the CofAs rationale!!
You did an awesome job
for this poor bugger.
In 2011, a legal team including
prominent Wellington human
rights lawyer Tony Ellis sought
leave to appeal Fergusons sentence
so he could be moved from
prison into intellectual disability

care. This, too, was declined.

In both cases, the lawyers tried
to take the matter further, to the
Supreme Court the countrys
highest judicial body but these
applications failed as well.
The Parole Board has heard
Fergusons behaviour in prison is
settled and he has made good
progress with ACC counselling
for his past abuse, but it notes
he may still have unresolved
post-traumatic stress issues.
Though his latest parole hearing,
which was held at the end of March,
also declined to approve his release,
Fergusons mother Colleen told
North & South that Ferguson is being
assessed for suitability for supported
living in a halfway house in
Hamilton. He had day releases with
his family last year, but these were
stopped indefinitely after murderer
Philip Smiths escape to Brazil
last November. DONNA CHISHOLM

Seeking Justice
For Jason
Seven years after baby-faced Jason Ferguson was jailed
for life for killing the man who sexually molested him,
lawyers are trying to have him freed saying a judge
and jury never heard vital information that should have
kept him out of prison. Donna Chisholm investigates.
113

y the time forestry

workers arrived to
tow the pearl-white
Nissan Laurel
out of the mud,
Jason Ferguson
had been stuck on the side of the
metal road for nearly four hours.
It was 3.45am, it was mid-winter
and he was alone in a pine forest,
stranded on a private Carter Holt
back road in the south Waikato,
about 20 minutes from Putaruru.
As predicaments went, it
was already pretty nasty. But
Fergusons was much worse. He
was stranded in the first place
because he couldnt drive not
really hed had only six lessons
and it wasnt even his car. The
Nissan belonged to Mamaku
man John Sorrenson. And
Sorrensons body was in the boot.
Haua Wilson and Terry Mika
didnt know that, of course, when
they grabbed the rope from the
back of their ute and hauled
the car back on to the road. Nor
did logging truckie Clive Shea
when he pulled up alongside a
few minutes later to help the
boys free the tow rope, which
had snagged under the Nissan.
Ive been here all bloody
night, Ferguson said.
Well, you should drive to the
conditions, son, Shea replied.
Ferguson explained hed
tried to dig the car out, but had
lost his shovel in the dark.
Shea returned to his rig for a
torch to help him look for it, and
to help the boys untie the knot.
It was a six-volt Big John torch
lantern, he told police later, and
when he flicked it on, Ferguson ran
back to the Nissan, jumped in the
drivers seat and wouldnt come
out. Never shook his rescuers
hands, never even said thanks,
Shea remembers. I thought
he was an arrogant bugger.
That assessment of Ferguson
was the first of many as the
19-year-old was charged and
tried for the murder of John
Sorrenson. And like many of
the others, it was sadly astray.
Because what Shea didnt

114

know and the courts never

heard, was that Jason Mark
Ferguson had an IQ of just 56.

or journalists, the murder

of 56-year-old caregiver
Sorrenson in June 2002
started out as a promising whodunit
bloodstains in the lounge of his
house, no sign of Sorrenson, and
the intellectually handicapped
man he looked after left on his
own. With Fergusons arrest two
days later, it became just another
killing. Tried in December, he was
jailed for life in February 2003.
Six years on, however, the case
is to return to the courts, with
Fergusons new lawyer, Chris
Tennet, describing it as the worst
miscarriage of justice hes seen
in more than 25 years and not
only because Ferguson has all the
intellectual rigour of your average
six-year-old. To Tennets mind,
it wasnt so much a crack in the
system that Ferguson fell through
as a yawning crevasse. The best
available defences self-defence
and lack of intent were not put
to the jury (provocation was the
only defence offered after evidence
that Sorrenson had made an
aggressive homosexual advance)
and its arguable whether Ferguson
was even fit to stand trial.
Ferguson was not just
intellectually disabled, but he
became actively suicidal after the
killing and was committed to a
mental hospital following repeated
attempts to take his own life in
jail. So desperate was Ferguson to
die that he was burned trying to
electrocute himself by poking his
tongue into a wall socket; he also
tried to choke himself by eating a
polystyrene cup. During his trial,
court was delayed for several hours
one morning while Ferguson was
treated in Rotorua Hospital after
trying to strangle himself with his
own T-shirt. His mother found out
about it only when she asked trial
lawyer Kevin Ryan, QC, about the
big red weal around her sons neck.
Tennet argues it was not open
to Ryan who died last year to
abandon the most appropriate

I WOULD SAY
HE WOULD
HAVE THE
MENTALITY
STILL OF A
YOUNG CHILD,
CERTAINLY
NOT AN
ADULT.

defences. How could Jason ever

give instructions to do that? If selfdefence were proved, it would have
been a complete acquittal. Heres
a guy alone in the Mamakus with a
stranger who is a predator and he
lashes out. Some might say he did
more than is reasonably acceptable
for self-defence, but I think
someone with a disability and posttraumatic stress disorder [after an
incident of sexual abuse two years
earlier] might be allowed a little
more leeway than you and I.
In April, the Court of Appeal
allowed Tennets bid to bring
the case back before the courts
despite the six-year delay. The
appeal will be heard in August,
when Tennet will argue Fergusons
conviction should be quashed on
the grounds of his intellectual
disability and active suicidality
before and during the trial, his
lack of intent and self-defence.
Jason Fergusons life changed
forever when he was just nine
weeks old and suffered a nearcot death. His mother, Colleen,
remembers folding the washing
when she flicked a sheet and
noticed that Jason lying in the
bassinet nearby didnt flinch.
I saw he was blue. I did
mouth to mouth, and Id never
done it before. He was limp
and cold and had a blue line
right around his mouth.
She raced him to Tokoroa
Hospital, where he stayed for

a few days before Colleen took

him home. It was as if shed
picked up a different child. The
once-contented, settled baby
was now demanding, unhappy, a
poor feeder. A baby she couldnt
take out to her friends places
because they couldnt stand his
grizzling. He wasnt sitting up
by 12 months, was nearly three
before he walked and didnt start
talking until well after that.
At four, after Colleen had
consulted a GP, a psychologist,
therapist and paediatrician, he
was diagnosed as intellectually
handicapped and enrolled in an
IHC preschool. From there he went
to Tamariki Special School before
Colleen had him mainstreamed
at Tokoroa North School. He got
picked on something terrible by
the other kids, she says. They

called him brain damaged and

taunted him with the chant, Clap,
clap for the handicapped. When
he was six, Colleen transferred
him to David Henry Primary.
The teachers there remember
the little boy well. After Ferguson
was arrested, two of them, Liz Puke
and Kitty Moon, went to visit him
at the Henry Bennett Centre in
Hamilton, where he was locked up
in the forensic mental health unit.
Ferguson was put into Sandra
Fitzgeralds class. He was
functioning at a preschool level,
she says, and had a teacher aide
alongside. He was a friendly
kid but a loner whod spend his
lunchtimes kicking a ball on his
own. His frustration at being
unable to do the work the others
could do was obvious. There were
non-compliance issues and hed

Jason, aged 10, on a

class trip to Rotorua.

have to go for time out. He would

get cross with his teacher aide and
refuse point blank to do anything
with her. At times, he would let fly,
just get really cross and worked
up. Sometimes, he was aggressive
with the others, but only when
he didnt understand things and
he lost it. It was frustration.
Although he progressed to
intermediate at St Marys in
Putaruru, Ferguson left at 14
because he could no longer cope
with schoolwork and had migraines
and epilepsy. He was admitted
to the Waikato Achievement
Centre a sheltered workshop
where he worked for $1 a day
picking up cans and bottles off
the street for recycling. He was
unable to read and write.
Puke and Fitzgerald were
stunned when they heard hed
been arrested for murder. I just
went cold, says Puke. But neither
woman believes the gangly, uncoordinated little kid they warmed
to at six should now be serving
a life sentence for murder.
I would say hes lashed out
in self-defence and his ability
to think just wasnt there, says
Fitzgerald. I would say he would
have the mentality still of a young
child, certainly not an adult.

hen John Sorrenson

picked up a hitchhiking
Jason Ferguson outside
Tirau Earthmovers in Putaruru,
on the afternoon of Saturday,
June8, 2002, Tennet reckons
Ferguson might as well have had
a neon sign above his head saying,
Molest me, attack me, abuse me.
And 56-year-old Sorrenson was
just the man to do it. While the jury
at Fergusons trial heard Sorrenson
portrayed as a kindly, possibly
asexual helper of young people, a
man of good character, Tennet told
the appeal court in April that this
description could not be further
from the truth. There was evidence,
he said, that Sorrenson was a
gay predator who often brought
home hitchhikers, generally
males, and offered them a bed.
Police received a number

115

of calls in the days following

Sorrensons death from people
alerting them to his tendency to
hit on young men for sex. Two
young men made statements that
Sorrenson had molested them,
and the jury did hear from one of
them about an indecent assault
in 1983. And the disabled man
who Sorrenson looked after also
told police that Sorrenson had
kicked and abused him. The mans
videotaped interview containing
the allegations was not part of the
case; Tennet still doesnt know
why the jury never got to see it.
Attempts by Kevin Ryan to
question a witness who as a child
had allegedly seen Sorrenson
sexually touching the disabled
man were blocked by the judge,
who said the evidence lacked
detail and cogency and involved
a 12-year-olds perception of an
interaction between two adults
who were strangers to him.
Whether Sorrenson had a sexual
encounter with Ferguson in mind
when he picked him up we will
never know. But the court heard
that five minutes after Ferguson
hopped in his car, Sorrenson
proposed that, instead of dropping
him off in Matamata, he would
take him to visit some friends.
Over the weekend, Sorrenson
told those friends different stories
about how he and Ferguson had
met and what they were doing
together. To one, he said Ferguson
suffered from epileptic fits (which
was true) and that he was going
to take him back to a psychiatric
unit. To another, he said he was
looking after Ferguson to give
his parents respite care. A third
friend who saw them together and
knew Sorrenson to be gay said,
tellingly, I got the feeling him
and John were getting on really
good together. The only inference
to be drawn from that, says
Tennet, is that though Ferguson
didnt know it, he was being
groomed for a sexual encounter.
What Sorrenson could not have
known was that two years earlier
an unwanted sexual assault by
a handicapped man from the

116

John Sorrenson picked up Jason as he

hitchhiked home after visiting his mother.

sheltered workshop Ferguson

attended had so disturbed the boy
that he was diagnosed with posttraumatic stress disorder. Ferguson
had been at a party at the mans
supervised flat when he went to
sleep on the couch, and woke to
find the man performing oral sex on
him. The following day, he returned
to the mans home and assaulted
him and smashed his windows.
About a year after that incident,
Ferguson and a counsellor arrived
at the Tokoroa police station to
make a complaint. His assailant
was then charged with indecent
assault, but police told the court at
Fergusons murder trial that after
certain conditions were put in
place by mental health workers,
the charge was withdrawn.
At the sheltered workshop,
Ferguson became so truculent he
was kicked out with apparently
no offer of any other support.
Itwas a decision that condemned
him to almost certain failure.
Christchurch psychologist Olive
Webb, who assessed Fergusons
intellectual function for the latest
court bid, and spoke to North &
South with his permission, says
Ferguson then began to drift. While
he was flatting with a workmate
of his stepfathers in Matamata,
he was no longer working, and
was sometimes sleeping in cars or

dossing at the homes of friends.

He still couldnt read or write
(he was later taught in prison to
a rudimentary level) and though
hed got his learners driving
licence, he would usually hitchhike wherever he needed to go.
The day Sorrenson picked him
up, hed been visiting his mother
and was returning to Matamata.
Hes very much a receiver of
things that happen to him, so
hes quite passive in the sense
of taking control of his life and
making decisions. He was also
taking quite a lot of booze and
marijuana and that would just
compound this. Hes got neither
competence nor drive, says Webb.
Court transcripts show
that during his weekend with
Sorrenson, the older man was
making all the decisions, with
Ferguson appearing content just
to tag along. He spent the first
night on Sorrensons couch and
the following afternoon went with
him to Rotorua, where they visited
friends of Sorrenson in Ngongotaha
and Hamurana. One friend told
the court that Ferguson had about
three large glasses of wine, but
didnt really take an active part
in the conversations. Sorrenson
declined an offer of dinner, and
the pair returned to Mamaku.
After a dinner of pies, Sorrenson
told Ferguson he was gay and
that he had feelings for him.
I just thought it was
the wine, Ferguson told
police. I just laughed it off.
I said, Nah, doubt it.
Sorrenson then began to tell
Ferguson about a gay relationship
hed had. I said to him, Oh,
can we just not talk about that
stuff? He goes, Nah, nah, its all
right to be gay, even bisexual.
He just said to me, Oh, are you
bisexual? and I said, Like hell
Iam. I said, Ill never be like that,
and he goes, Oh, okay then.
In other people, the conversation
may well have raised suspicions
as to Sorrensons motives that
weekend. Ferguson, however, was
so naive that immediately after
the discussion he asked to use

the shower. He was naked and

drying himself when Sorrenson
walked in and grabbed his penis.
I smacked him once then, um,
smacked him again, Ferguson
told police. He goes, What
was that for? I went, You
fuckin know what its for.
Then he tried to hug me and
I just pushed him away hit him
about three times. I was that mad,
I thought, How could he do that
to me, how could that sick bugger
do that to me? It made me feel
sick. It made me feel disgusting.
Itmade me feel like I wasnt clean,
felt like I was sick and disgusting,
but I knew I wasnt the disgusting
one and that he was the disgusting
one and the sick one and I knew
what he was really like.
After pulling on his jeans,
Ferguson followed Sorrenson to
the lounge, where he grabbed
a vase and smashed it over his
head. Sorrenson fell to his hands
and knees, then reared up and
hit Ferguson in the stomach.
I just picked up this yellow
glass plate and smashed it
over his head and then there
was blood everywhere.
As Sorrenson tried to get to his
feet, Ferguson hit him again with
a glass ornament, then grabbed
a poker from beside the fire and,
with both hands, whacked it
over his head and it broke.
When Sorrenson again rose
to his feet, Ferguson ran to the
kitchen and grabbed a knife.
Iwas scared that he was going to
try and do that shit to me again,
so I thought, Youre like the
rest of them. Then he stabbed
Sorrenson five times in the back.
I had no intention of killing him.
I just wanted him to hurt, to know
how I felt so he would never do that
to anyone or to me again. I realised
Id gone too far and, um, I noticed he
wasnt moving... I checked his pulse
and thought, Fuck, I havent killed
him, have I? I thought, Fuck, you
just cant get out of this life without
people doing nothing to you and I
was just really upset and I started
crying when I noticed he was dead.
I was really upset and just

The shallow grave containing John Sorrensons body

was found under scrub near Pinedale Rd in Putaruru.

thought of all the fuckin people

who have hurt me and how theyd
got away with it and I thought,
No, not this time, Im not letting
no one touch me again.
The 45-year-old intellectually
handicapped man Sorrenson cared
for woke to the sound of crashing
glass and loud music. Then, he
said, everything went quiet.
The fella was moaning, and
he was moaning not to hurt me,
he told a police interviewer.
And whose voice was that?
the interviewer asked.
It was Jasons voice.

erguson told police he was

going to report what hed
done immediately. But
then he thought he would go to
jail and jail was the last place
a young man with a morbid fear
of sexual assault wanted to be.
So Ferguson dragged Sorrenson
into the boot of the Nissan and
bundled up a bloodied mat,
fireside poker and ornaments.
He changed his clothes, dressing
in Sorrensons own black top and
track pants, then dumped the
mat, poker and clothing on top of
the body before returning to the
house to burn his blue sweatshirt,
skate shoes and some bloodstained cushions in the fireplace.
He told police that after

throwing some of the shattered

crockery in the fire, I thought,
Oh, I wont get away with
this, and I just left the rest.
He took a shovel and two spades
from Sorrensons garden shed and
reversed the car on to the street,
hitting the porch with the rear
of the Nissan on the way out.
I was really upset when I was
driving, Ferguson told police.
Ididnt know what I was doing,
and I went off the road.
Stranded on the forestry road,
Ferguson threw the mat, poker
and two spades into the bush.
After Wilson, Mika and Shea
came to his rescue, Ferguson drove
off, towards Putaruru. But within
half an hour, he skidded off the
road again, later waving down a
logging truck driver who again
pulled the Nissan out of the mud.
Before daylight, he reached
Pinedale Rd, a few kilometres
southeast of Putaruru, where
he drove up a bush track and
waited until daylight before
digging a knee-deep grave.
The hole, pathologist Martin
Sage told the court, was 1.2m
by 0.5m, and just 0.4m deep.
Sorrenson was laid in the hole
such that his left armpit, arm
and head were resting on the brim
at one end and trunk and thighs
were face down in the hole The

117

K EN DOWNIE

I JUST ABOUT FELL

ON THE FLOOR.
IDIDNT BELIEVE IT.
I BROKE DOWN.

Jasons mother, Colleen Ferguson, and her grandson Rayden.

hole had been backfilled with

loose clay diggings, covering all
except his sock-covered feet and
the left upper portion of his head,
which was partially obscured by
a black cotton knit sweatshirt.
Sage described Sorrensons
injuries in millimetre-precise
detail. The extensive lacerating
injuries to his scalp covered
an area of 190mm by 110mm.
Those to the rear and left side
of the head resulted from many
intersecting blows with a blunt

118

instrument, producing a virtual

mosaic of small pieces of scalp.
In all, there were 15 blows to
the head and five stab wounds
to the upper and middle back.
After burying Sorrensons
body, Jason Ferguson climbed
back into his victims car.
And drove home to Mum.
Colleen Ferguson remembers
her horror when her son turned
up, covered in mud in a dented
and scratched wreck of a car. He
told her a friend had lent it to

him. I said, Who the bloody hell

in their right mind would give
you a car when you cant drive?
We had an argument over it.
Ferguson had a shower and drove
off. Alarmed, Colleen went to the
police to alert them her son should
not be driving. The station was
closed. I thought, Oh well, if he
gets picked up, he gets picked up.
The following day, 18 police
arrived at her house, asking for
Ferguson. I was cleaning the back
porch and they just descended
from everywhere. I didnt know
what the hell was going on and they
wouldnt tell me. It didnt take
long for police to find Ferguson
at home at his Matamata flat.
Do you know John Sorrenson
of Mamaku? asked a constable.
Ah, yep, answered Ferguson.
When did you last see
John Sorrenson?
Ah, shit, a few days ago,
yeah. Ah fuck, Im going to
jail. I expected yous.
Back at the police station,
Colleen Ferguson was told her
son was wanted for a serious
assault. Then a detective came
in and he said, Im very sorry to
tell you this youre the second
mother Ive ever had to say this
to but Jason is now showing
us where hes buried the body.
I just about fell on the floor.
I didnt believe it. I broke down.
I just couldnt believe it.

even years on, Clive Shea

hasnt forgotten that night
in the Mamakus when he
came across the stranded Jason
Ferguson. Told that Ferguson had
an IQ of 56, Shea said, Yes, he
didnt strike me as a murderer,
that was quite obvious. He struck
me as a different sort of person.
Finding out that Sorrensons
body had been in the boot as
they were dragging the car out
of the mud had shaken them
all up, he told North & South.
As I said to the cop, if he had
a bloody pop gun he could have
popped the whole three of us off.
Did you think he was that sort of
guy, Clive? No, not really.

THE LAW &

INTELLECTUAL DISABILITY

f Jason Ferguson had come

before the courts a few years
later, rather than in 2002,
chances are there would have been
no trial, no conviction and almost
certainly no imprisonment.
The legislation that would have
transferred him from the courts to
the health system came into force
in September 2004, 19 months after
he was jailed. The twin acts the
Criminal Procedure (Mentally
Impaired Persons) Act and the
Intellectual Disability (Compulsory
Care and Rehabilitation) Act
have provisions allowing them
to apply retrospectively. But
it seems no one knew enough
about the legislation or about
Ferguson to apply it to his case.
The CP (MIP) Act allows the
court to find a person unfit to
plead because of intellectual
disability, if the judge is satisfied
there is evidence the person did
in fact commit the crime. Until
1992, the intellectually disabled
could be committed to mental
institutions under the Mental
Health (Compulsory Assessment
and Treatment) Act for their
own or societys protection. But
changes to the definition of mental
disorder that year meant intellectual
disability was no longer regarded
as a mental disorder so there was
no hospital safety net for the
intellectually disabled and many
were forced to stand trial despite
their disability. The law was at the
centre of the whistleblowing case
by Lake Alice nurse Neil Pugmire,
who revealed in 1993 that it would
free dangerous sex attacker Barry
Ryder (aka Steven Staynor).
Auckland University law
professor Warren Brookbanks,
who specialises in criminal and
mental health law, says before 1992,
people with intellectual disability
who were a problem could be taken
out of circulation and placed in a
secure unit and they never came
to light. There were no problems

with intellectually disabled

offenders because they were all
in institutions. But suddenly after
1992 there was a series of cases
where men with reasonably severe
intellectual disabilities were being
discharged from hospitals, coming
on to the streets and committing
serious offences, particularly
some paedophile-type offences.
It immediately created problems.
These people began to parade
before the courts courts which
until that time had very seldom
had to deal with the problem of
unfitness to stand trial. It became
very clear they did not have the
mental capacity to understand
what was happening or, more
importantly, to instruct a lawyer.
The IDCCR Act allows the
courts to make a compulsory-care
order in community- or hospitalbased services for up to three
years if a persons behaviour is a
significant risk an order that can
be renewed by the Family Court.
And while advocates for the
intellectually disabled believe the
acts are a positive step, pitfalls
remain. If an accused person avoids
trial under the IDCCR Act (the
court having accepted that the
person did commit the crime), he
can be committed to hospital but
loses the right to argue defences
such as lack of intent or provocation
that might otherwise be available.

ester Mundell, the Health

Ministrys chief adviser for
disability services, says 136

TODAY, A
PERSON WITH
AN IQ OF 56
WOULD ALMOST
CERTAINLY BE
FOUND UNFIT
TO PLEAD.

people are currently held under

IDCCR orders. About 30 per cent
have committed sexual offences,
13 per cent assaults and nine per
cent arson. About two per cent
have been charged with murder,
manslaughter or attempted murder.
A 1997 report by Sharon
Brandford, now IHCs specialist
services national manager, found
just 0.3 per cent of prison inmates
had an intellectual disability.
Some lawyers believe the figure
may be significantly higher.
Brookbanks says intellectually
disabled people still slip through
the system. Some of these people
are borderline and when being
interviewed by police tend to
give the answers they think the
person in authority is looking for.
So you get people pleading guilty
and there is no real investigation
into their mental status. They end
up going to jail, which is often
completely inappropriate.
Mundell says that today, a person
with an IQ of 56 would almost
certainly be found unfit to plead.
Wellington human rights
lawyer Tony Ellis says there
remains a significant lack of
understanding across the criminal
justice system about the rights
of the intellectually disabled
and what the new acts mean.
He is still fighting one case
on behalf of a man with an
IQ in the low 60s who was
jailed as the ringleader of an
aggravated robbery gang. The
case was being argued in the
Court of Appeal in early June.
Ellis believes the intellectually
disabled should have automatic
name suppression in court
( just as children do), be tried
in surroundings similar to
a Family Court, and have a
representative alongside to
explain what is happening.
I have to ask myself on
what basis can you differentiate
between children and people
with intellectual disabilities,
because intellectually disabled
people are in some respects
children in an adult body.

119

RIGHT
FROM
WRONG

o how responsible was Jason

Ferguson for his actions
on the night he killed John
Sorrenson, given his IQ of 56? After
all, the mean IQ of a person with
Downs Syndrome is 50 even
Forrest Gump had an IQ of 75.
Psychologist Olive Webb of
the Institute of Applied Human
Services in Christchurch, whose
assessment of Ferguson forms
part of his appeal bid, calls his
intellectual disability significant.
Its not that hes marginal, hes
down there. It means 99 per cent
of people his age are brighter than
him. Jason has some basic survival
skills; he knows how to drive a
car albeit badly. Where he is
impaired on a day-to-day basis is in
his ability to solve problems, to deal
with the unexpected, to cope with
sudden changes in expectations
on him. His resourcefulness is
really limited. Hes pretty much
a here-and-now sort of guy.
Webb believes he would be
best dealt with in a low-security
community mental health unit with
specialist staff to rehabilitate him.
To be diagnosed with an
intellectual disability, a person
has to meet three criteria: early
onset (before the age of 18), an IQ
of 70 or below, and the presence
of two or more adaptive deficits
what Webb describes as the
ability to do things to get on with
life. Ferguson, she says, ticks
every box. His literacy, language
and cognitive skills are around
the level of a six-year-old.
His repeated suicide attempts,
including one during his trial, also
suggest he shouldnt have gone
through the court process. This is
someone whos not concentrating
on the trial, are they? says Webb.
In a sense, thats one of the tests
of your ability to stand trial if you
cant stand the process without
killing yourself, I would have
thought this is a test for saying,

120

Above and opposite: After a literacy programme in jail, Jason learned

enough to write child-like letters, including this one sent to his mother.

Whoa. It means Jason wasnt in a

fit state to contribute to the trial.
But surely Ferguson knew
right from wrong even sixyear-olds know that. And didnt
the fact he tried to cover up
his crime point to a level of
understanding beyond that IQ?
Webb describes those attempts
as a bit like the Keystone Cops.
He put the body into the back of
Sorrensons car, he drove the car
into a ditch two or three times
and was pulled out by locals, and
when he buried him he left bits
sticking out. Its panicky activity
you might see in any whodunit
movie on telly. While he has an
intellectual disability, hes not
totally incompetent and he can
understand he has a dead body
there and he needs to get rid of it.
Ferguson lacks executive
functioning skills and is unable
to understand the consequences
of his actions. If I say to you, Just
imagine you were driving through
Canterbury last Sunday and you
didnt know if you were going to get
caught in a snowstorm, what are
the different things you could do?,
you would probably engage in a
little mental exercise in which you
anticipate whats going to happen
and when you find a solution,
you can say, Okay, thatll work.
This is the ability to analyse
and manipulate information in

your head. Jasons really poor in

this sort of skill. This is part of
the drifting Ill sleep in the car
tonight because it wouldnt occur
to me to plan ahead to ensure
Ihave somewhere else to stay.
Compounding that deficit is the
post-traumatic stress disorder
after the earlier sexual assault.
When I talked to him about this
sexual abuse seven or eight years
later, he still sat in front of me and
cried like a baby, so this is very,
very close to the surface stuff.
Sorrenson fondled his penis and,
using Jasons words, he just lost
it. Now Im not sure if, given the
extent of his trauma, someone with
a normal intelligence might act
similarly. Having said that, because
of his intellectual disability, Jason
would be less likely to fast-forward
and anticipate the outcome, so he
would be even more vulnerable to
that provocation. Ferguson also
lacks the inhibitory machinery
to put the brakes on his response.
Webb says guards at the
prison where Ferguson is held
are sensitive and caring and
going the extra distance to
be protective of him. They are
aware of his extra sensitivity to
cell and body searches. This is
one area that if you press that
particular button he gets very,
very distressed very, very quickly.
Webb believes Fergusons file

indicates a once over lightly

approach by those who assessed
him. A psychiatrists report to the
court said although he was aware
of Fergusons IHC background,
his cognitive functions appeared
normal in orientation to time,
place and person, his attention
spans were normal and so was
his memory for short- and longterm events. His account of
the killing was well structured
and coherent. He did not suffer
depression or psychosis. But
two months later, in September,
after several suicide attempts,
Ferguson was transferred to the
high-security forensic mental
health unit at the Henry Bennett
Centre and said to be presenting
as a behavioural problem.
There is a real risk that we
will be stuck with this behaviour
problem, psychologist Russell
Wilson of Health Waikatos
regional forensic psychiatric
service wrote. People can kill
themselves and be quite sane. Jason
should be returned to prison and
managed within the prison system.
If something goes wrong then the

prison service is responsible.

Two weeks later, and just one
day after a judge had Ferguson
committed to hospital because
of continuing fears for his safety,
Ferguson tried to punch Wilson.
Appears not to like Russell, said
the nursing notes. Wilson himself
said of Ferguson: Frustration
levels very high. I think he should
be more appropriately placed in
prison and thats why he does
not like me. Lawyer is going to
arrange a second psychologist.
However, it was Wilson who
prepared a November report on
Ferguson for Kevin Ryan, QC,
pre-trial. It assessed his IQ at 57
(almost identical to this years
assessment of 56), with lower
verbal scores. It was difficult
to conduct a comprehensive
assessment as he does not know
the alphabet and has only the
most basic arithmetic skills.
Australia-trained Wilson,
who started working in New
Zealand only in May 2002, has
not practised here since 2005
and was removed from the
Psychologists Board register in

September 2007 because, said the

board, it could not locate him.
Fergusons lawyer, Chris Tennet,
says there appears to have been a
lack of communication between
the mental health professionals.
Psychiatrists dont understand
intellectual disability and often
cant spot it. Jason had a mental
illness, depressive illness and
post-traumatic stress disorder,
enough to be sectioned under
the Mental Health Act, but this
was never mentioned in the
psychologists report in November.
Police also failed to spot
Fergusons intellectual disability.
The officer in charge of the case,
Garth Bryan, now professional
standards inspector at police
national headquarters, says
Fergusons behaviour after the
crime and his disposal of items
from Sorrensons house seem
inconsistent with such a disability.
He had the presence of mind to be
able to achieve all those things and
communicate quite well with the
detectives who went and saw him.
Asked if Fergusons intellectual
ability was ever questioned by the
investigating team, Bryan says:
No,not that Im aware of. Asked
if it would be a surprise to him
to learn Ferguson had an IQ of
56, he says: To be honest, I dont
know what that actually means in
the scheme of things. This young
man never struck myself or the
detectives who dealt with him as
having that disability. He says
police have moved on a lot in the
past 10-20 years and now recognise
and understand such things better.
Jason Ferguson remained actively
suicidal in prison until 2007. In
October 2006, sex offender Andre
Port was charged with attempting
to assist Fergusons suicide bid.
Ferguson, the court heard, asked
several inmates in Paremoremos
maximum-security wing, among
them killers such as Taffy Hotene,
to help him take his life. Port
agreed in return for a Marilyn
Manson CD, two Eminem CDs and
Fergusons pens, pencils and pencil
case. Port became too squeamish to
complete the deal.
+

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