Director of Public Prosecutions v Ferguson
[2024] VCC 1560
•7 October 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR -24-00840
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL FERGUSON |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 September 2024 |
DATE OF SENTENCE: | 7 October 2024 |
CASE MAY BE CITED AS: | DPP v Ferguson |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1560 |
REASONS FOR SENTENCE
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Subject: CRIMINAL
Catchwords: Intentionally damaging property - Aggravated burglary - Common law assault - assaulting an emergency worker whilst on duty – prior convictions – Koori Court – low objective gravity – Application of Bugmy principles - PSD.
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269.
Sentence:Total Effect Sentence-200 days’ imprisonment – 12 month Community Correction Order – s 6AAA declaration – two and a half years’ imprisonment with a non-parole period of 18 months’.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Liantzakis | Office of Public Prosecutions |
For the Offender | Mr R. Bhattacharya | Victoria Legal Aid |
HIS HONOUR:
1Daniel Ferguson, you are a proud Palawa and Kurnai man who pleaded guilty before me in the Koori Court to charges of intentionally damaging property, aggravated burglary, two charges of common law assault and three charges of assaulting an emergency worker whilst on duty.
2The maximum penalty for damaging property is 10 years' imprisonment, the maximum penalty for aggravated burglary is 25 years' imprisonment, the maximum for common assault is five years' imprisonment and the maximum for assaulting an emergency worker on duty is five years' imprisonment.
3You admitted relevant prior convictions. You have a record of some length, it does involve relevant matters including offences such as robbery, assaulting police officers and other assault matters. It does appear that the period you have been in custody at present, which exceeds the pre-sentence detention available to you, is the longest period you have been in custody. Your offences in the past, from the best I can make out, appear to share some similarities with the circumstances of this current offending o. They appear to be reflective of a street lifestyle, homelessness and abuse of alcohol and potentially other substances.
Circumstances of Offending
4The circumstances of your offending are helpfully set out in the Summary of Prosecution Opening for Plea.[1]
[1] Exhibit A.
5The offence of aggravated burglary is a very serious offence and reflected by the 25 year maximum penalty. Offences of aggravated burglary that involve an intent to assault upon entry are also a very serious form of that offence.
6You were 33 at the time of the offending which occurred in the early hours of 27 January 2024. Of course, the preceding day, 26 January, was a date which holds some significance, and I accept, as was advanced on the plea, that those circumstances impacted you negatively on this occasion.
7The circumstances of your commission of the offence of aggravated burglary are quite unique. It is circumstantial in the sense that you were intoxicated, you had been behaving erratically and spoken to by police in the lead-up to the offending. You decided to breach the building at 500 Bourke Street, forced open the revolving door and engaged in some senseless destruction of property whilst therein.
8There were subsequent entries and once security guards became alive to the fact that you had set off a fire alarm and were in the building, they then became the targets of your actions. Inexplicably, you were lashing out, it would seem. You broke in again and engaged in some quite terrifying assaults upon the victims in this matter, throwing items at them, a chair, door handles, really terrorising them. You accept that your actions would have had a lasting impact upon your victims and you have exhibited appropriate remorse in respect to that, particularly during the sentencing conversation.
9Once you were taken into custody you were capsicum sprayed and you then engaged in a completely unacceptable assault upon three emergency workers on duty, being the custodial officers that were trying to get you into the van, you spat at them and you said, 'I want to fight you' and you lashed out with your feet.
10These actions, as I have said, are completely unacceptable and deserving of punishment, and you accept that your behaviour was completely over the top on this occasion.
Objective Gravity
11The charges are serious offences, however, the entire summary of prosecution opening which forms part of these reasons for sentence, is indicative of a level of offending in the range, particularly in relation to aggravated burglary, that would be towards the lower end of the range for offences of this type.
12I take into account the impacts upon your victims, the objective gravity, the importance of denunciation of your conduct, the importance of deterring others from engaging in like behaviour, and particularly specifically deterring you from any future conduct of this type.
13I am satisfied that the length of time you have been in custody thus far has been a reminder to you that it is in your interests to manage alcohol use, to gain some stability in your personal circumstances, particularly in respect of housing but also in respect of pro-social goals that are going to be productive and help you in your life.
Personal Circumstances
14At the time of the offending you were sleeping rough in the St Kilda area, busking. You have been a busker for some 20 years or so, I understand that you are quite proficient as a guitar-playing singer and that is something that I understand you will continue to engage in. You are also a talented artist which we saw evidence of during the sentencing conversation.
15I will not dwell on your personal circumstances; they are set out in Mr Bhattacharya's submissions on the plea.[2]
[2] Exhibit 1 [6] – [26].
16You spoke about your personal experiences in a very moving way, that was no doubt very difficult for you during the sentencing conversation. You touched on the experiences of being an Aboriginal personal adopted into a family whose values and lifestyle you found difficult to integrate in, quite understandably. You suffered trauma at the hands of an adopted family member as a young person. You have no contact with your own parents and it is likely that you, from infancy, suffered opiate withdrawal from birth. Tragically, your mother passed when she was aged 45, from a heroin overdose, her being a heroin user since at least the time you were born and before.
17You have tried to, and have, connected with your culture once the opportunities became available to you. It seems the first opportunities arose when you were 13 or 14 in foster care and you had opportunities to connect culturally then, and you did so. The tragedy in your life did not end there, however, you became a father at 15, there was a tragic loss in relation to your child a couple of years later. You engaged in suicide attempts.
18It does not do justice of course to all those circumstances in giving such a brief synopsis, but for the purposes of these sentencing remarks it is suffice to say that your life was a very difficult one. Your early life was a very difficult one that attracts mitigation in the Bugmy sense, and I accept that.[3]
[3]Bugmy v The Queen (2013) 249 CLR 571.
19You suffer from cerebral palsy and are on a disability support pension. Cerebral palsy of course affects you on a daily basis and in many ways that are also set out in Mr Bhattacharya's outline. I will not go into those but those factors also make your experience of prison considerably more difficult than it would be for a person who did not suffer those conditions. You have been diagnosed with a major depressive disorder, generalised anxiety disorder, and ADHD. There are also psychological factors affecting you that make your experience of prison more harsh compared to that of another person who does not suffer those infirmities.[4]
[4]R v Verdins (2007) 16 VR 269.
Matters in Mitigation
Remorse
20You pleaded guilty at an early opportunity, and I have touched on the sentencing conversation where you expressed genuine remorse, which I accept. You spoke at length in a very meaningful and impressive way during the sentencing conversation, not only talking about your offending and the impacts, but your goals. Your engagement with Michelle Beam, who you refer to as 'mum', was reflective of a person who has a gentle side who desperately wants to engage with others in a positive way. I am satisfied that the length of time you have been in custody to date has provided a further opportunity for you to reflect in a sober state on what is important to you in your life and how you can achieve those things moving forward.
Sentencing Conversation
21It seems to me, based on what you have said in the sentencing conversation and your engagement with the elders during that conversation, that you value culture and your identity, the music and the artwork you have been engaging in, and in particular those family, friends and supports that you have developed along the way.
22You have kept yourself busy in custody too which is also to your credit, completing meaningful certificates, including completion in civic construction, cleaning and other courses, which I was told about by your counsel..
23I had you assessed for a Community Corrections Order and you have been assessed as suitable. There have been recommended conditions of drug and alcohol treatment and rehabilitation, mental health treatment and rehabilitation, supervision and judicial monitoring.
Housing
24There has been some discussion at the plea and Mr Bhattacharya has addressed me further this morning in relation to your living circumstances, which is one of the criminogenic factors in your case. Finding some stability in your living arrangements will go a long way to preventing you from, or assisting you in, not reoffending. You have talked about living with a relative in Morwell. There is, it would seem, perhaps more suitable accommodation available to you in about four weeks' time in the St Kilda area. I was also provided with a letter from Restart which is talking about your active engagement, with a view to obtaining suitable housing. I accept that you are genuine in those endeavours and that you will access all the supports available to you to obtain suitable accommodation.
25Your participation in the sentencing conversation attracts mitigation, and as I have indicated, you participated fully and in a very impressive manner. I will not sum up all the matters that were covered in that sentencing conversation, but, as I say, your participation was fulsome and I anticipate you also got a bit out of the sentencing conversation.
26Taking into account the sentencing factors that I must, in determining the appropriate sentence, I have had regard to the circumstances of the offending, the importance of general deterrence, denunciation and specific deterrence. Your prospects of rehabilitation, which in my assessment are good, if you can attain the stability in housing and access to treatment in respect of alcohol in particular, was a factor in the offending before me.
Sentence
27Drawing together all of those sentencing factors as best I am able, I sentence you as follows:
28Mr Ferguson, on Charge 1, the charge of damaging property, you are sentenced to one month imprisonment.
29On Charge 2, the charge of aggravated burglary, you are sentenced to 180 days' imprisonment in combination with a 12 month community corrections order.
30On Charge 3, you are sentenced to one month imprisonment.
31On Charge 4, you are sentenced to one month imprisonment.
32On Charge 5, you are sentenced to three months' imprisonment.
33On Charge 6, you are sentenced to three months' imprisonment.
34On Charge 7, you are sentenced to three months' imprisonment.
35All those sentences are to be served concurrently save for 20 days of the sentence imposed on Charge 7, which is to be served cumulatively on the base sentence being Charge 2.
36That makes a total effective sentence, Mr Ferguson, of 200 days' imprisonment in combination with a 12 month community corrections order.
37The pre-sentence detention that you have already served pursuant to that sentence is 179 days.
38The conditions of the Corrections order are that:
· you submit to alcohol assessment and treatment, as directed;
· drug assessment and treatment, as directed;
· mental health assessment and treatment, as directed; and
· that you be subject to supervision and that you appear before me in a judicial monitoring session in four months' time from today's date.
39Pursuant to s6AAA of the Sentencing Act 1991 (Vic)[5], were it not for your pleas of guilty in this matter I would have sentenced you to a total effective sentence of two and a half years' imprisonment with a non-parole period of 18 months.
[5]Sentencing Act 1991 (Vic)
40I make the disposal order that is sought.
41Do you consent to the Corrections order, Mr Ferguson? Yes, you do, I can see you nodding there. I am going to sign it once it is prepared, and I will give Mr Bhattacharya a copy of it and he can have a look at it, it will then be sent to you, Mr Ferguson. It will also be available when you are released at the Corrections office that you will be reporting to.
42MR BHATTACHARYA: And in relation to that, Your Honour, I think there was an initial suggestion of Morwell.
43HIS HONOUR: Yes.
44MR BHATTACHARYA: It seems that he will be ‑ ‑ ‑
45HIS HONOUR: St Kilda ‑ ‑ ‑
46MR BHATTACHARYA: St Kilda will be the longer term residence so I'm not sure what the appropriate office should be instead.
47HIS HONOUR: Are we able to, Ms Burgess, do we know what Corrections – if you're living in St Kilda where would you normally report.
48MS BURGESS: If Your Honour is minded to give me literally two ‑ ‑ ‑
49HIS HONOUR: Yes, that's all right. Look, I'll stand down, the document has to be prepared anyway so we'll just – it will go on there.
50So what I expect is going to happen, Mr Ferguson, is 200 days minus your pre-sentence detention means roughly about three weeks. I don't know if you have any emergency management days available, all of that is outside my area of control. There might be some uncertainty as to when you are actually released but given your engagement with Restart and NDIS, and the efforts that have been made to find you housing thus far, I would imagine that if there's a leeway option - I would expect that if there's a lag time between your release and the availability of your accommodation in St Kilda that appropriate emergency accommodation would be sourced in that vicinity, so you could have some continuity with reporting. There's no point going down to Morwell and reporting there and starting there and then a week later being in St Kilda and having to get a transfer.
51You have some information, Ms Burgess.
52MS BURGESS: I do, Your Honour. It's Melbourne Correction ‑ ‑ ‑
53HIS HONOUR: Melbourne.
54MS BURGESS: Yes.
55HIS HONOUR: Terrific. You will be reporting to Melbourne Corrections and you have two to three weeks to sit there and get your things together and get your head around where you're going be and how you're going to start on this Corrections order, and keep all your appointments. I will be seeing you again in February and hear how you've been engaging at that point. Yes.
56OFFENDER: Your Honour, sorry for interrupting.
57HIS HONOUR: That's all right.
58OFFENDER: So does that mean I'll be released roughly on the 28th or thereabouts.
59HIS HONOUR: I'd say so. Certainly not beyond that. It might be the 27th, it might be the 28th. The reason I don't know for use is because Corrections, as in the prison authorities, work out your sentence and sometimes there's administrative deductions. I don't know if there is in your case but they'll be able to tell you that ‑ ‑ ‑
60OFFENDER: There's not.
61HIS HONOUR: But I don't know. So it won't be more than 28 October but it might be less.
62OFFENDER: Yeah. Beautiful, thank you.
63HIS HONOUR: If I see you busking on the esplanade I'll throw some coins in your guitar case – if I've got any cash on me, of course ‑ ‑ ‑
64OFFENDER: Thank you.
65HIS HONOUR: I think we'll adjourn. I'll sign that in chambers and if there's anything else I'll come back on.
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