Director of Public Prosecutions v Ferguson
[2023] VCC 220
•20 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-22-01711
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB FERGUSON |
---
JUDGE: | HIS HONOUR JUDGE KELLY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 February 2023 | |
DATE OF SENTENCE: | 20 February 2023 | |
CASE MAY BE CITED AS: | DPP v Ferguson | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 220 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Armed Robbery – Car Theft – Attempt – Unsophisticated offending – Complex Post-Traumatic Stress Disorder – Substance Abuse Disorder – Gravity of Offending – Prospects of Rehabilitation.
Legislation Cited: Crimes Act 1958; Road Safety Act 1986; Sentencing Act 1991.
Cases Cited:Worboyes v The Queen [2021] VSCA 169; 96 MVR 344; Bugmy v R (2013) 169 CLR 571; R v Verdins & Ors (2007) 16 VR 269.
Sentence:14 months Imprisonment; 12 month Community Correction Order.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Richardson | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms J. McGarvie | Emma Turnbull Lawyers Pty Ltd. |
HIS HONOUR:
1 Jacob Ferguson, you have pleaded guilty to one charge of attempted robbery[1] and one charge of attempted theft of a motor vehicle.[2] The maximum penalties are as follows: attempted armed robbery - 20 years' imprisonment, attempted theft of a motor vehicle - 5 years' imprisonment.
[1] Contrary to ss 321 M, 75A Crimes Act 1958.
[2] Contrary to ss 321 M, 74 Crimes Act 1958.
Circumstances of the offending
2 The circumstances giving rise to the charged offences are as follows.[3]
[3] Prosecution Exhibit A.
3 On March 3 2022 at 12.20 pm, Mr Phillips, a 73‑year‑old man, was walking along Rupert Street in West Footscray, and Mr Phillips heard a bang and turned around to see you standing next to a white utility vehicle. When Mr Phillips turned to you, you sat down and Mr Phillips continued walking.
4 You then pursued Mr Phillips before cutting him off and asking why he called the police. Upon being informed by Mr Phillips that he did not call the police, you stopped Mr Phillips again and indicated to him that you would remain with him until the police arrived. Mr Phillips reiterated that he did not call the police and turned around and walked in the direction from which he had come.
5 A bystander asked Mr Phillips if he was okay. He indicated he was not and said that you would not leave him alone. It was at this point that you engaged the bystander in conversation whilst Mr Phillips continued to walk away from you.
6 Moments after Mr Phillips began walking away from you, you approached him with a screwdriver in your hand and engaged in an altercation with him. You lunged at Mr Phillips with the screwdriver, forcing him to fend you off with his left hand.
7 You then grabbed onto his bag and said, 'Give me your bag'. Mr Phillips said 'No way' and began crying out for help. You both began to swing around as you continued to try to take possession of the bag.
8 As a result of this altercation, Mr Phillips received a cut to his left ring finger which required a band aid.
9 Eventually, a car pulled up next to the two of you. You got into the car and drove off yelling, 'I'll get you next time'.
10 This is the conduct which makes up Charge 1, attempted armed robbery.
11 At approximately 1.54 pm, you were observed by Newport Railway Station CCTV entering the Market Street carpark.
12 At 2.10 pm, Ms Inkster returned to the car that she had parked in the Market Street carpark, and noticed a blunt object similar to a golf bag next to her car's driver's side back door. Ms Inkster saw the driver's side window of her car had been smashed and saw you sitting in the driver's seat of her car.
13 Ms Inkster then asked, 'What are you doing in my car? That's my car'. Ms Inkster then began recording you on her mobile phone and asked you for your details. At this point, you got out of the car and started to walk away, returning to give false contact information to Ms Inkster and offering to pay for the damage to the car.
14 It is this conduct which constitutes Charge 2, attempted theft of a motor vehicle.
Victim Impact Statement
15
A victim impact statement of Mr Phillips was tendered.[4] Your offending has impacted on his quality of life and he no longer trusts strangers. Ms Inkster has not provided the court with a victim impact statement, but the experience of finding her car damaged and you inside it must have been distressing to her. I take the impact of the offending into account pursuant to s 5 of the
Sentencing Act1991.
[4] Prosecution Exhibit C
Nature and Gravity of the Offending
16 The offence of attempted armed robbery is an inherently serious offence, as evidenced by the maximum penalty imposed by parliament of 20 years' imprisonment. That said, the offences of armed robbery and attempted armed robbery can be committed in a variety of ways and in a range of settings, some extremely serious and others in an unsophisticated and amateurish way that makes detection inevitable. Such was the case with you.
Defence submissions
17 On your behalf, Ms McGarvie relied on your early plea of guilty.[5] Your intention to plead guilty to these two charges was indicated at committal prior to the calling of any witnesses. I accept that your plea was entered at an early stage and you deserve as a substantial reduction as a consequence.
[5] Defence Exhibit 1.
18 She also relied on the lack of pre‑planning in the commission of these offences. She pointed to the fact that you did not wear a disguise, that the weapon you possessed in the attempted armed robbery was a screwdriver which you possessed for purposes other than menacing or threatening vulnerable victims in order to take their possessions from them. The screwdriver appears to have been used by you to force the lock in Ms Inkster's car and not for any violent purpose. Ms McGarvie expressed that the offending was unplanned and unsophisticated. It took place in broad daylight and spanned a very brief period. She also relied on the fact that your offending was not committed in company.
19 Ms McGarvie told the court that you have the unstinting support of your de facto partner Kerry Bullivant. She told the court that Ms Bullivant works in insurance, has her own house and is committed to you. She advised the court that you were not living with her at the time of this offending but that you were living with your father in Sunshine.
20 Ms McGarvie submitted that the principles in Bugmy[6] are enlivened here due to the extreme domestic violence and dysfunction you witnessed as a child. I was told that you are one of eight children born to different fathers and that you were exposed to neglect, substance abuse and violence against your mother by her partners when you were too young to intervene on her behalf. I was told that your inability to protect her when you were a child of 10 produced extreme anxiety in you and you resorted to alcohol and drug use to deal with the symptoms of post‑traumatic stress disorder.
[6] Bugmy v R (2013) 169 CLR 571 (‘Bugmy’).
21 Ms McGarvie tendered a letter from Tiffany Glasper dated 30 January 2022 which discussed aspects of your upbringing and emphasised that you had been a good friend to her.[7]
[7] Defence Exhibit 3.
22 Ms McGarvie referred to your exemplary work history and submitted that I should not interfere with your motor vehicle licence because, upon your release, if you can return to the workforce and the work that you were doing before you were taken into custody, your prospects of rehabilitation will be advanced. She told the court that you worked for Bobcat Boys and Westgate Bobcat Hire before your arrest.
23 Ms McGarvie submitted that limbs 1 to 4 of Verdins[8] are enlivened as a consequence of your dual diagnosis of complex post‑traumatic stress disorder and substance abuse disorder. The prosecution does not accept that Verdins is engaged in your case and I will have more to say later in these sentencing remarks about the evidence called in support of this aspect of the plea.
[8] R v Verdins & Ors (2007) 16 VR 269, 276 (‘Verdins’).
24 Ms McGarvie told the court that you were receiving appropriate mental health treatment for the first time in custody and your positive response augured well for your prospects of rehabilitation despite your lengthy criminal history.
25 She also referred to the fact that you have been on protection since having been taken into custody and that you were likely to remain on protection. As a consequence, you have fewer visits than mainstream prisoners, you have less access to the exercise yard and you are not able to use the library, the gym or other mainstream facilities. She advised the court that you were remanded on 6 September 2022 and had been in custody since then.
26 She advised that you have previously successfully completed parole orders, but that you have not previously been trialled on a community correction order.
27 The prosecution submits that this offending is serious. There is little to distinguish the offending from the completed crime in both instances. These are high‑level attempts. In both instances, the offending was brazen, random, and opportunistic.
28 Further, it was perpetrated against unsuspecting members of the public in broad daylight. The attempted armed robbery can be characterised as violent offending against a defenceless member of the community going about his business. Mr Phillips is an elderly man and he tried to avoid the confrontation you created. You persisted despite attempts to reason with you. Despite the short duration of the interaction between you and Mr Phillips, the impact on him was immediate. You did not withdraw and were met with resistance from Mr Phillips.
Personal circumstances
29 You were aged 30 at the time of the offending and you are 31 now. You have seven half siblings. Your parents separated when you were an infant and you were then cared for by both parents in varying arrangements. Both of your parents struggled with drug addiction and you were exposed to violence, neglect and drug abuse from a very young age. You reported witnessing your mother being assaulted regularly and from age 10 you would run away from home to escape these conditions.
30 You attended eight different high schools before leaving school at age 14. You undertook an apprenticeship as a mechanic, which you did not complete. You have worked as a truck driver and bobcat driver since age 19.
31 During your time in the community, you have a good work history. You have injured your finger in 2021, requiring plastic surgery. This caused you to cease employment as a bobcat driver.
32 During your time in custody, you have worked a horticulture billet.
33
You have admitted a lengthy prior criminal history.[9] You first became involved with the criminal justice system at age 16. In 2012, when you were then
age 20, you were sentenced to your first period of detention in a youth justice centre. You have spent approximately seven of the last 10 years - that is the majority of your adult life - in custody.
[9] Prosecution Exhibit B.
34 You have a daughter age 7 who was born while you were in custody. You met your daughter once when she was age 2 years old and you were in custody at that time. You have not had further contact with your daughter despite making attempts and I was told you would need to pursue legal proceedings to enable visits with her.
35 You have a partner of two years who you have known since high school. Your partner is a source of support for you and you plan to reside with her upon your eventual release from custody. Your partner supported you in court via a remote appearance at the plea.
36 A character reference from your friend Ms Glasper, as I have indicated, was tendered on your plea.[10]
[10] Defence Exhibit C.
37 You have a long history of polysubstance abuse, commencing from when you were aged approximately 9, reporting that 'It was always on the kitchen table'.[11] You started smoking cannabis and drinking alcohol. By age 11 you were smoking cannabis 'flat out', and at around 15 you commenced using ecstasy and amphetamine.[12] At age 17 you started smoking methylamphetamine, commonly known as ice. You report that you have also sometimes used opioid pills and benzodiazepines and have experimented with ketamine and hallucinogenic mushrooms. At the start of 2022, you were consuming approximately two grams of methylamphetamine, also known as ice, per day, 50 millilitres of GHB, and 'a few Xanax'.[13]
[11] Defence Exhibit 2 at page 2.
[12] Ibid, page 4.
[13] Ibid, page 5.
38 A negative urine screen dated 13 November 2022 was provided to the court. Your efforts to remain abstinent are to be encouraged.[14]
[14] Defence Exhibit 4.
Mental health
39 A report of Ian Mackinnon was tendered on your plea.[15] He reports a formal diagnosis of ADHD for which you have been receiving medication whilst on remand. You reported to Mr Mackinnon that the medication has been helpful and that the 'fireworks in [your] head stopped'.[16] However, after commencing the medication, you had several seizures and during an episode you fell and hit your head, causing a hairline fracture. Your medication has since been reviewed.
[15] Defence Exhibit 2.
[16] Ibid, page 5.
40 You reported to Mr Mackinnon that in the community you sometimes spoke to psychologists. You have engaged with a psychiatrist and have had counselling whilst on remand and report that you are willing to participate in treatment for substance addiction. Mr Mackinnon opines that at the time of assessment, you had diagnoses of long‑standing complex post‑traumatic stress disorder (‘CPTSD’) with an associated chronic substance abuse disorder (‘SAD’).
41 Mr Mackinnon further notes that '[Your] substance abuse has, since [your] early adolescence, been a means for [you] to self‑medicate and distract [yourself] from [your] chronic distress'.[17] In his opinion, in addition to chronic anxiety and depression, you suffer with chronic bouts of suicidal ideation, chronically poor emotional regulation and chronic interpersonal difficulties.
[17] Ibid, page 7.
42 The likely primary antecedents of your CPTSD include exposure to a dysfunctional family environment during your formative years wherein criminality, violence, substance abuse and domestic violence were commonly carried out and modelled for you by your parents and other adults.
43 Mr Mackinnon considers that the behavioural symptoms of CPTSD overlap with ADHD and that it is more likely that you are suffering from CPTSD.
Application of Verdins principles
44 Counsel on your behalf submitted that Verdins limbs 1 to 4 inclusive were enlivened in this case, specifically that:
'At the time of the offending, Mr Ferguson's psychological disorder meant he had a reduced ability to think clearly and make calm, rational decisions. The impairment was present at the time of the offending and remained present'.[18]
[18] Defence Exhibit 1 at [15].
45 Mr Mackinnon further opined that diagnoses of CPTSD and SAD were present at the time of the offending and were 'significant contributors to your offending'.[19]
[19] Defence Exhibit 2, page 8.
46 Mr Mackinnon gave evidence on your plea. He explained that you attract the diagnosis of CPTSD because your PTSD is brought about by several traumatic incidents during your formative years. He told the court that your condition emerged in childhood due to traumatic, frightening events. He does not agree that you have ADHD, which was the diagnosis made by your treatment team in custody.
47 He said that your condition is likely to be elevated by significant stress. In Mr Mackinnon's opinion, your CPTSD and SAD would have made significant contributions to your offending by degrading your ability to make sound judgments, lowering your consequential thinking and rendering you more impulsive.
48 As to specifically how CPTSD would have affected you on 3 March 2020, he said that the two conditions would have worked together to make you more impulsive, less able to exercise consequential thinking, and more vulnerable to doing irrational things.
49 When asked if a sentence of imprisonment would weigh more heavily on you than a person in normal health, Mr Mackinnon told the court that he would expect that it would be more difficult for you. He referred to your hairline fracture, conceded that you were coping well enough and that you were open to engaging in treatment, but ultimately opined that he expected that it would be significantly harder for you to cope with gaol and that you were more likely to respond in a worse way than a person in normal health. He said, 'In my opinion, should Mr Ferguson be imprisoned for a further significant period for the current matters, he will possibly cope well enough'.
50 You have previous experience of incarceration and, to date, you have engaged well in treatment at the Metropolitan Remand Centre and have used your time in remand productively. However, in the inherently threatening prison environment, and given the hairline fractured that you labour with, Mr Mackinnon's opinion is that your chronic CPTSD and associated anxieties and fears are likely to remain elevated: 'Given Mr Ferguson's past history, he poses some ongoing risk of self‑harm and suicidal ideation'.
51 Under cross‑examination, Mr Mackinnon conceded that the main cause of your offending on 3 March 2022 was drug use and not CPTSD.
52 He was asked whether there was anything about the features of this offending which denoted the presence of CPTSD. He said no, and as you were using drugs heavily on that day, your symptoms would have been masked.
53 As to whether it is possible to distinguish substance abuse disorder from illicit drug use which is not attributable to a disorder, he said that it was not possible, but he stressed that in your case, if you had started using drugs at a pre‑adolescent stage in a traumatic, dysfunctional environment, that history supports a diagnosis of substance abuse disorder.
54 On balance, I am prepared to accept that your dual diagnoses are likely to make the jail term more difficult for you than a person in normal health. I also accept that your conditions reduce your moral culpability to some extent. Your sentence will be moderated according.
Application of Bugmy principles
55 Your childhood was marred by exposure to violence and substance use. Mr Mackinnon notes in his report that when discussing your childhood you indicated:
'It wasn't a childhood, it was neglect, violence, and drugs. Dad broke his back working, so he smoked drugs for the pain, but my mum's always been involved with bikies and criminals. There was always drugs and violence at our house, terrifying moments. When I was little, every time Dad got drunk, he punched the fuck out of Mum. I felt responsible. I couldn't protect my mum. He'd knock her teeth out, break her jaw. She went through hell. There was violence between other people at our house, people bashed up in our kitchen over drug debts. Police attended our house a lot'.[20]
[20] Defence Exhibit 2 at page 2.
56
I accept, as a matter of mitigation of sentence, that your background of trauma and abuse reduces your moral culpability in the sense referred to by the
High Court in Bugmy. As the Court stated:
'The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make‑up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision'.[21]
[21] Bugmy v R (2013) 169 CLR 571, 594-595 at [43].
57 I accept that your plea of guilty was entered at an early stage. These proceedings resolved at committal before witnesses were called to give evidence.
58 Your plea of guilty is of significant utilitarian benefit. You have saved the time and cost of a trial, and witnesses have not been called to give evidence. Your plea of guilty is of greater weight given the impact of the COVID‑19 pandemic and the backlog of trials before the court.[22] I also accept that your plea of guilty is evidence of some remorse.
[22] Worboyes v The Queen (2021) 96 MVR 344, 356-357 at [39].
Impact of COVID‑19
59 Your time spent in custody has been subject to additional deprivations of liberty as a result of the pandemic. You were required to undergo quarantine upon entering into custody and access to visits and courses has been limited. This has made your period of custody more onerous than it otherwise would have been and I take this matter into account in mitigation of your sentence.
60 I also accept that the conditions in which you have been undergoing remand have been particularly onerous and I will moderate your sentence to take account of this additional hardship.
61 I was provided with His Honour Judge Chettle's sentencing remarks in
DPP v Lind and Ingram-Ferguson, which explained to some extent why the conditions you have spent on remand were more difficult than they would ordinarily be.
Prospects of rehabilitation
62 Mr Mackinnon made the following observations in relation to your prospects of rehabilitation:
'Mr Ferguson is a deeply psychologically damaged individual who nevertheless presented with a working conscience, expressed remorse and shame over his offending, and also evinced a genuine desire to better understand himself, make rehabilitative progress, and establish a stable and law‑abiding lifestyle. In my opinion, Mr Ferguson's rehabilitative prospects have been improved by his recent [good] response to medication to treat ADHD and depression'.[23]
[23] Defence Exhibit 2 page 7.
63 Given these observations, your prospects, although guarded, may be enhanced by supervision and appropriate treatment in the community.
Sentencing submissions
64 Ms McGarvie accepted that your offending warranted a term of imprisonment. However, she submitted that it ought to be moderated having regard to the objective gravity of the offending, the early plea of guilty and other mitigating factors. Ms McGarvie's ultimate submission was that a term of imprisonment combined with a community corrections order was appropriate.[24]
[24] Defence Exhibit 1.
65 Ms Richardson, on behalf of the Director, submitted that, having regard to the nature of the offence and sentencing principles, a term of imprisonment with a non‑parole period was the appropriate sentencing disposition.[25]
[25] Prosecution Exhibit D.
66 In relation to Charge 2, the court must, in the case of a conviction, suspend or cancel any driver's licence for the period of time the court specifies. The court has a discretionary power regarding licence disqualification under s 89A of the Sentencing Act and 28(1)(b) of the Road Safety Act 1986.
67 Ms McGarvie submitted that you require a driver's licence to undertake employment as a truck and bobcat driver and that any disqualification period imposed ought to be minimal to maximise your prospects of rehabilitation and your opportunity for employment upon your eventual release into the community.
68 I need to have regard to the principles of just punishment and denunciation in sentencing you. I accept that, as a consequence of your dual diagnoses and the report and evidence of Mr Mackinnon, the principle of general deterrence needs to be moderated to some extent. I also accept Mr Mackinnon's evidence that your dual diagnoses are likely to make prison more burdensome for you. I also accept that specific deterrence needs some slight moderation.
69 I also believe, however, that in your case I need to establish conditions which facilitate your rehabilitation and the surest way of doing that is to impose a combined sentence of imprisonment and a community correction order. In doing that, I do not lose sight of the objective gravity of your offending.
Sentencing
70 Mr Ferguson, I will get you to stand now. Jacob Ferguson, I sentence you as follows:
71 On Charge 1, attempted armed robbery, you are convicted and sentenced to 14 months' imprisonment to be followed by a community correction order of 12 months' duration;
72 On Charge 2, attempted theft of a motor vehicle, you are convicted and sentenced to nine months' imprisonment concurrent with the sentence on Charge 1.
73 What I am proposing to do at this stage on Charge 1 is record a conviction and place you on a community correction order for a period of 12 months from your release from custody. Do you understand?
74 OFFENDER: Yes.
75 HIS HONOUR: Before I ask you to consent to such an order being made, I have to tell you a little about that order so that you know what it means, so just listen now. The following core conditions apply to all community correction orders:
(a) you must not commit, whether in or outside of Victoria, during the period of the order, an offence punishable by imprisonment;
(b) you must report to and receive visits from the Secretary to the Department of Justice or his or her nominee during the period of the order;
(c) you must report to the community corrections centre at Werribee within
two clear days following your release from custody;
(d) you must notify the Secretary or his or her nominee of any change of address or employment within two clear working days after that change;
(e) you must not leave Victoria except with the permission of the Secretary to the Department of Justice or his or her nominee;
(f) you must comply with any direction given by the Secretary that is necessary for the secretary to give to ensure you comply with the order.
76 Now, there are a number of other conditions attached to this order, and they apply to you, so again just listen to these:
(a) you must be under the supervision of a community corrections officer for a period of 12 months;
(b) you are required to be supervised, monitored, and managed as directed by the Secretary or his or her nominee;
(c) you must undergo assessment and treatment, including testing, for drug abuse or dependency as directed by the Regional Manager;
(d) you must undergo assessment and treatment, including testing, for alcohol abuse or dependency as directed by the Regional Manager;
(e) you must undergo mental health assessment and treatment, including but not limited to mental health, psychological, neuropsychological, and psychiatric treatment, in a hospital or residential facility as directed by the
Regional Manager.
77 I can only impose a community correction order if you agree to such an order being imposed, so I need to tell you just a little bit more about that, all right? I should advise you that if you contravene or breach that order by committing further offences, you can be charged with a sentence of imprisonment as one of the options that can be imposed for that breach. Do you understand?
78 OFFENDER: Yes.
79 HIS HONOUR: You can also be resentenced for the offences that are before me. One of the options available includes a term of imprisonment. I also advise you that if you fail to comply with any directions of the Secretary of the Department of Justice - that is, a community corrections officer - as part of this order, a substantial fine can be imposed. Now, are you aware of all of that?
80 OFFENDER: Yes.
81 HIS HONOUR: Do you consent to the community corrections order on the terms I have just outlined?
82 OFFENDER: Yes.
83 HIS HONOUR: All right. Pursuant to s18(4) of the Sentencing Act, I declare that you have spent 167 days in custody by way of pre‑sentence detention to be reckoned as served.
84 The prosecution made application for compensation of the amount of $650, the insurance excess for the repair of the car. Counsel on your behalf did not oppose the application, and I make the order in the terms sought.
85 Pursuant to s89(4) of the Sentencing Act, on Charge 2, attempted theft of a motor vehicle, your driver's licence is cancelled and you are disqualified for a period of five months from today's date.
86 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty, I would have imposed a total effective sentence of 30 months' imprisonment with a non‑parole period of 18 months.
87 Now, are there any other ancillary orders?
88 MS RICHARDSON: No, those are the matters.
89 HIS HONOUR: Very well.
- - -
0
3
0