Director of Public Prosecutions v Ferguson
[2022] VCC 1101
•8 July 2022 & 14 July 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-00914
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER FERGUSON |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 January 2022, 14 June 2022, 20 June 2022, 27 June 2022 | |
DATE OF SENTENCE: | 8 July 2022 & 14 July 2022 | |
CASE MAY BE CITED AS: | DPP v Ferguson | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1101 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Using carriage service to procure person under 16 – using carriage service to solicit child abuse materials – no victim – objective seriousness moderate and very low – high culpability – prospect of rehabilitation dependent on treatment for drug use and psychological issues
Legislation Cited: Crimes Act 1914; Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:Western Australia v Collier (2007) 178 A Crim R 310; R v Paynder (2007) 171 A Crim R 544; Rampley v R [2010] NSWCCA 293; Worboyes v The Queen [2021] VSCA 169; Verdins v R [2007] VSCA 102; Bugmy v R [2013] HCA 37; DPP v Drake [2019] VSCA 293
Sentence:15 month Community Corrections Order and SORA reporting for 15 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Pillai | Commonwealth Office of Public Prosecutions |
| For the Offender | Mr T. Brown | Michaelson Lawyers and Associates |
HIS HONOUR:
1Christopher Ferguson, you have pleaded guilty to the following offences:
(a) using carriage service to procure a person under 16; and
(b) use a carriage service to solicit child abuse material.
2Both offences have a maximum penalty of 15 years' imprisonment.
3The circumstances of your offending are set out in the document entitled, 'Prosecution opening upon plea', which is Exhibit A. Your counsel agreed with the factual content of the exhibit.
Circumstances
4The circumstances can be briefly stated.
5On 18 July 2020, using a social media platform called ‘Kik’, you start an exchange of messages with what you believed was a 14 year old girl called ‘Lucy’. In truth, ‘Lucy’ was an undercover police operative. You asked if she wanted to meet and offered to drive from Shepparton to Cranbourne to do so.
6Three days later, ‘Lucy’ told you she was 14. At your request, she sent what purported to be an image of herself. You then asked her a series of sexual questions set out in paragraph 8 of the exhibit. You again offered to drive to Cranbourne. You sent her a further 25 messages but she did not reply to any.
7
Two days later, you asked if she wanted to meet you. Between that day and
4 September 2020, you sent further messages without response.
8On 4 September 2020, Lucy contacted you. She asked you how you were. Between 9 and 24 September, you sent her 42 messages. On 24 September, Lucy replied. Three days later, you replied. Both messages were innocuous. These exchanges continued until 22 October 2020.
9On 23 October 2020, you sent a series of messages, including one asking Lucy if she wanted to 'fuck'. After Lucy gave you her mobile phone number, you contacted her 48 times between that date and 20 December 2020.
10Between 19 November and 21 December 2020, there were a number of exchanges as detailed in paragraphs 16 to 28 of Exhibit A. Some of your messages were sexual in nature. These circumstances constitute Charge 1.
Charge 2
11On 21 July 2020 and 14 December 2020, you solicited child abuse material from Lucy. The exchanges between you and Lucy are set out in paragraphs 31 to 33 of Exhibit A. These circumstances constitute Charge 2.
12On 21 December 2020, the police searched your residence. They seized your mother's mobile phone. You were arrested and interviewed that day. You made admissions.
Criminal History
13Between 28 June 2013 and 19 July 2019, you have appeared in a criminal court on five occasions. You have been found guilty or convicted or 13 offences. You have never been sentenced to imprisonment. Your most serious penalty has been a community correction order which you have received on three occasions.
Personal Circumstances
14You are now 30. You are Koori. You were raised in Mooroopna. You are the only child of your parents.
15Your father died by suicide when you were three or four. You lived with your mother, with whom you had a close relationship despite her use of cannabis.
16You were also close to your mother's brother and lived with him in Mooroopna.
17Your mother formed another relationship. She has an eleven year old daughter. You presently live with your mother's brother as I have said, Craig.
18All of your schooling occurred in Mooroopna and ended during Year 9. You stopped attending school because you did not like school. You had been bullied there. Although below average as a student, you did not repeat any year.
19Since leaving school, your employment has been patchy. You worked twice for Tatura Abattoirs, in total about 15 months. You worked on a production line and in concreting. Since the first part of 2020, you have not worked. When you saw Ms Lechner, you were being assisted by a disability job agency. Your employment has been interrupted by your use of drugs.
20You started using cannabis at about 16. By the beginning of 2021, you were using eight or nine grams a day. When you saw Ms Lechner, this had dropped to about two grams a day. You were then dealing with a drug and alcohol counsellor at Primary Care. You spoke to her fortnightly. You have used other drugs, including methylamphetamine and ecstasy, both of which you stopped using during 2021. With alcohol, you are a ‘binge’ drinker. In the past you have used Valium and Serepax to help you calm down.
21You have had five relationships, one of which was significant. With Tracey, you have twins, aged four. They live with their mother and you have no contact with them.
Psychologist
22Carla Lechner is a clinical psychologist. At the request of your solicitors, she interviewed you on 18 October 2021.[1]
[1]Report dated 4 November 2021
23Ms Lechner diagnosed you as suffering from cannabis use and stimulant use disorders, both in early remission. Your mood is lowered. Ms Lechner would not diagnose bipolar disorder but she suggests another disorder as a possibility.
24Ms Lechner considered your interest in teenage females was due to immaturity and not deviance. She assessed you as a ‘low/medium’ risk of re-offending in this manner. The risk could be reduced if you received treatment for your mental health issues and drug and alcohol problems. She considered you are immensely socially, and emotionally immature with a limited ability to reason and judge.
25Ms Lechner recommended drug and alcohol counselling and psychological support, 'that focuses on skills-based learning intervention and education regarding appropriate sexual behaviour'.
26Finally, Ms Lechner said:[2]
‘…Mr. Ferguson is likely to struggle with a prison environment in light of his cognitive, social and emotional immaturity, this in turn aggravating his symptoms of depression and anxiety.’
[2]Report at page 7
Neuropsychologist
27Martin Jackson is a neuropsychologist. At the request of your solicitors, he interviewed you on 26 April 2022.[3]
[3]Report dated 30 May 2022
28Generally, Mr Jackson found your cognitive performance was in the borderline to low average range. You have a full scale IQ of 74. You performed at an average or better level for three functions; borderline to low average in 10 functions and in the extremely low range in three functions.
29He did not diagnose you as suffering from any recognised psychological disorder except that related to your use of cannabis. You did not have any major cognitive condition and he considered your deficits in high level attention and complex new learning and memory were consistent with the acute or toxic effects of cannabis use.
30Mr Martin saw no nexus between your cognitive abilities and your offending. Your risk of re-offending is tied up primarily with substance abuse.
31To Mr Martin:[4]
‘…the main issue in Mr Ferguson’s offending has been substance abuse and the effects of intoxication. As such, if he can stay abstinent from alcohol and methamphetamines, as well as reduce or cease marijuana use, he clearly has the cognitive skills to live independently in the community including working. Therefore, the primary goal is to remain abstinent from substances and he requires appropriate supports to do this.’
[4]Report at pages 13 and 14
32Neither psychologist diagnoses you as suffering from a bipolar disorder.
Legal Considerations
33Apart from the other relevant provisions of the Crimes Act 1914 (‘the Act’), I must have regard to the matters set out in s16A of the Act, where relevant, in sentencing you.
Discussion
General Deterrence
34The Director's counsel submitted, and it was not denied, that general deterrence is the paramount sentencing factor in these types of offences. She also submitted that ordinarily an immediate sentence of imprisonment is imposed, referring to a number of cases and citing from the judgment of Steytler P in Western Australia v Collier[5]:
'…there is a paramount public interest in protecting children from sexual abuse.’
[5](2007) 178 A Crim R 310 at [43].
35General deterrence is effective if there are persons who would identify with you and your offending. If so, then the example of the penalty imposed upon you would have a deterrent effect upon them.
Specific Deterrence
36Specific deterrence or deterring you from re-offending is an important sentencing factor here. This is made clear from the passage from the judgment of the court in R v Paynder[6].
[6](2007) 171 A Crim R 544 at 550.
37Ms Lechner assessed your risk of re-offending in this matter as ‘low-medium’. That is, she does not assess you as a low risk or a medium risk but rather falling in between those two levels of risk. She expected the level of risk would decline with appropriate treatment.
Objective seriousness
38Over a period of about five months, the circumstances of Charge 1 show your persistence in chasing ‘Lucy’. Not unnaturally, you never met Lucy but you did try repeatedly to arrange a meeting, including offering to drive to Cranbourne. Charge 2 is two instances of soliciting, separated by months. In both, you seek sexually explicit images from ‘Lucy’.
39You started the exchange with ‘Lucy’. It is not suggested you searched the internet seeking children to contact.
40Although nine years older than the age of the supposed child, you made no real attempt to hide your identity. You used the name 'Tim Tam' but displayed your image. You used your mother's mobile phone as you did not have one of your own.
41No part of these charges involves you sending sexual images or videos, which often happens. You did not offer inducements, which again is a common occurrence.
42Your contacts with ‘Lucy’ were discontinuous with significant gaps.
43The objective seriousness of Charge 1 is moderate and for Charge 2, very low.
Moral Culpability
44Since you believed a 14 year old called ‘Lucy’ existed and did not know she was fictitious, being an adult member of a police force, does not lessen your culpability. The rationale for this approach is explained in the passage from the judgment of McClellan CJ in Rampley v R[7]. The use of fictitious identities is a method used by police to detect what is otherwise hard to detect. It is the difficulty in detecting these offences which, in part, underlies the emphasis on general deterrence.
[7][2010] NSWCCA 293 at [37].
45The use of fictitious persons means there is no direct victim of your offending. There is no victim to tell me of the harm you caused. There is no aggravation due to the adverse effect on a real child.
46Nevertheless, your culpability is high for both charges.
Guilty Pleas
47Your guilty pleas were made at the second committal mention hearing. In terms of the course of a criminal proceeding from the laying of charges to an ultimate jury trial, those pleas were entered at a very early stage, not being the earliest reasonable opportunity.
48I will treat your pleas as evidence or your remorse for your offending.
49
Almost invariably, a plea of guilty will result in a discount on the sentence which would otherwise be imposed. It has the practical or utilitarian benefit of saving the time and expense of a trial and relieves the need for witnesses to give evidence. Any plea of guilty in the time of the pandemic merits a greater discount. The reasons were set out last year in the case of
Worboyes v The Queen[8]and I will quote paragraph 35:
‘As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.’
50Overall, your pleas of guilty require a significant discount on the sentences which would be imposed in their absence.
Remorse and rehabilitation
51The Director queries whether you are genuinely remorseful in that you shows a determination not to re-offend, at least in the manner of the present charges. The realisation of the wrongfulness of your actions was brought home to you by Ms Lechner when she personalised your offending. The need to do that is the result of your intellectual capacity and your concrete style of thinking. You have little capacity to visualise the effects of your actions. To the extent your pleas point to a determination not to re-offend in this matter, I consider they evidence genuine remorse.
52Remorse is linked with your prospects of rehabilitation. You need to address your drug and alcohol issues. You are intending to plead guilty to offences occurring while this proceeding has been pending. They include a charge of contravening a family violence intervention order by attending at the residence of a protected person while affected by your use of cannabis. You have been remanded in custody on these charges and they are due to be heard in the near future.
53This proceeding received local publicity. You were identified. Unpleasant comments about you have been daubed on your mother's home in Mooroopna and her car. The comments were, 'Chris, you are a pedo', and, 'pedo dog'. You found this traumatic. Plainly, you are well known in Mooroopna, which is a relatively small community. I dare say the consequences of your actions are being demonstrated in a way which you would understand.
54To Ms Lechner, you are not sexually deviant in the sense of suffering from a recognised sexual disorder. She felt your actions were due to psychosocial immaturity.
55Your prospects of rehabilitation are very much dependent on your ability to tackle your use of drugs and your underlying psychological issues. If given the opportunity, I would expect you to try to tackle those issues. To that extent, your prospects are favourable.
Verdins v R
56Your counsel can find his reliance upon the principles or limbs, 5 and 6, set out in the case of Verdins v R[9] which states:[10]
‘Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways:
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.’
[9][2007] VSCA 102
[10]At paragraph 32
57After an examination of the report of Ms Lechner, the Director concede limbs 5 and 6 apply. After receiving Mr Jackson's report, the Director's position changed in that the limbs do not apply. At p13 of his report, Mr Jackson was asked, 'If Christopher is currently suffering from any psychological/psychiatric condition what impact, if any, a term of imprisonment could have on him having regard to that condition'. He answered:[11]
‘As above, Mr Ferguson’s primary condition is actually substance use with some associated cognitive difficulties. Otherwise, there is no major cognitive condition and no mental health issues. Therefore, he does not currently have a cognitive or psychiatric condition that a term of imprisonment could have an impact on him.’
[11]Report at page 13
58From Mr Jackson's neuropsychological perspective, neither propositions or limbs 5 or 6 of Verdins has application to you. That perspective focused on your cognitive abilities.
59Clinically, Ms Lechner was unprepared to diagnose a recognised psychological disorder. However, she considered you were likely to struggle in prison because of cognitive, social and emotional immaturity. Your struggle would aggravate your underlying depressive and anxiety symptoms.
60Ms Lechner's approach was broader than that of Mr Jackson. That is a consequence of their specialisation as psychologists. Ms Lechner's opinion establishes the less restrictive limb 5. It does not support the more onerous limb 6. I accept her opinion. Imprisonment would aggravate your symptoms of depression and anxiety. It would make imprisonment more difficult for you as opposed to another person without your difficulties. This factor moderate the sentences I would otherwise impose.
Bugmy v R
61Your counsel relied on the case of Bugmy v R[12]. At paragraphs 43 and 44, the court said:
‘The Director's submission should be accepted. 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. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.’
[12][2013] HCA 37
62Your counsel also relied upon a passage from DPP v Drake[13], where the court said:[14]
‘In particular, the profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of his moral culpability. As recognised by the High Court in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent’s personality and his responses. As a consequence, his subjective culpability, for the offending in which he engaged, could not be equated with that of a person who committed the same offence but had had the advantage of a normal, stable and regular home environment during his or her childhood years. In that way, those factors constituted an important mitigating circumstance in the determination of the respondent’s sentence.[In the sense of what Mr Bugmy had experienced, your childhood was not a catalogue of circumstances meriting the description of profound deprivation, dysfunction or disadvantage. However, there was the significant event of the suicide of your father when you were very young. I am supposed that this was and remains a very significant blow to you. However, you continued to live with your mother, with whom you have a close relationship. You experienced difficulties at school as often happens. Your use of drugs was to compensate for an abnormal psychological state, being your social anxiety and low mood. The considerations in Bugmy have application to your case. They serve to moderate your moral culpability.’
[13][2019] VSCA 293
[14]At paragraph 32
63In the sense of what Mr Bugmy had experienced, your childhood was not a catalogue of circumstances meriting the description of profound deprivation, dysfunction or disadvantage. However, there was the significant event of the suicide of your father when you were very young. One supposes this was and remains a very significant blow to you. However, you continued to live with your mother, with whom you have a close relationship. You experienced difficulties at school. As often happens, your use of drugs was to compensate for an abnormal psychological state, being your social anxiety and low mood. The considerations in Bugmy have application to your case. They serve to moderate your moral culpability.
[8][2021] VSCA 169
COVID-19
64Both counsel acknowledged the effect of the pandemic on persons in custody. You have been in custody a short while for these charges and a little longer for the other pending charges.
Comparable Cases
65Although noting the importance of parity of cases in the sentencing process, neither counsel were able to identify any.
Pre-Sentence Detention
66I will not mention the pre-sentence detention at this stage. It would have been seven days I think as of today but it is plainly going to be a longer period. I would imagine it is going to be a longer period.
Final Comments
67General deterrence is the primary sentencing purpose for these offences. To be effective in deterring others from offending as you have done, there must be an ability for those persons to put themselves in your position. To an extent, they must identify with you. Given your history, including the suicide of your father, the number of such persons is lessened in my opinion.
68If it is necessary to find exceptional circumstances justifying the course I propose to adopt, namely, a non-custodial sentence, and your counsel seems to think so, then I would find them. I have now had you assessed for a community correction order and the report is available. I would propose to place Mr Ferguson on such an order but given the pending matters in the Magistrates Court and the uncertainty as to what will happen in respect of them, it would be inappropriate for me to impose such a sentence at this stage.
69
That is my view and I invite counsel to make any submission they wish to make in that regard. What I am suggesting is that this matter be adjourned until we find out what will happen in the Magistrates Court. No doubt the Magistrate will be told of the fact that I am proposing a community correction order in relation to
Mr Ferguson. It just becomes a question of when he will be released from custody or even if he is sentenced to imprisonment on the other matters, there will be a time when he is released. I do not think it is possible for me to say in this case that he is to be placed on the corrections order the moment he is released from prison if he is imprisoned in respect of the Magistrates' Court matters.
70And the other thing I would say is that I would not consider it appropriate for me to place him on a recognisance release order because that would involve a sentence of imprisonment, which I do not think is appropriate to be imposed. So with those remarks, Ms Pillai and Mr Brown, what - and bearing in mind also that I am going on leave for two weeks starting on Monday. I just should mention that and I will be interstate for most of that period. Do you want a moment to speak to your client, Mr Brown, before you make any submission?
71MR BROWN: Yes, sorry, I was just - I realised I have had myself on mute, Your Honour - I apologise for that - when I was speaking before that pause was a result of my mute button.
72HIS HONOUR: I am not good at lip reading.
73MR BROWN: The PSD is by my calculation, up to today, Your Honour - is 18 days. Initially, my views were that the matter would just - would be - I mean given Mr Ferguson is on remand for the Magistrates Court matters - the adjourned - that are we hope finalised next Wednesday. So my initial view was that the matter could simply follow along as we did on the last occasion. However, I must say I am somewhat concerned given Your Honour is going on leave and if Your Honour is intending to impose a community correction order, whether we find ourselves with Mr Ferguson spending another - a further period in custody whilst Your Honour is on leave when he doesn't need to. That is my concern.
74HIS HONOUR: Well, a very obvious concern. Well, I will give you - if you want an opportunity, I will leave the bench and you have a chat to Mr Ferguson if that is what you want to do.
75MR BROWN: Yes, thank you, Your Honour.
76HIS HONOUR: Ms Pillai, yes?
77MS PILLAI: Sorry, I did not mean to interrupt Mr Brown.
78HIS HONOUR: No, that's all right.
79MR BROWN: No, that's all right.
80
MS PILLAI: Your Honour, Your Honour is in a position to today impose that Community Corrections Order. I have been alerted to and note the application of 48M of the Sentencing Act. That potentially has the ability to allow variation of the Community Corrections Order. It is a section that applies to variation of orders under Division 5. I just need to give it some further thought that I am sure Mr Brown and Your Honour will wish to give that, but it may be that if Your Honour imposes a Community Corrections Order, and if for some reason - and I am just saying that there is obviously all sentencing options currently open to the Magistrates' Court. They are clearly waiting for the outcome of this matter - but if that - the Community Corrections Order that Your Honour is imposing is the subject of a sentence that is then - Mr Ferguson is subsequently sentenced to a term of imprisonment, which can happen, leaving aside that this is
Mr Ferguson's case - someone can be on a Community Corrections Order and then be sentenced to imprisonment.
81Potentially the sentence Your Honour imposes of a community corrections order could be varied in order to commence at a later date. So that would involve establishing that - under 48M - that the circumstances of the offender have materially altered since the order was made and that the offender will not be able to comply with the condition of the order. That certainly complicates matters but if Your Honour's intention is to impose a community corrections order today, despite the fact that there is a matter pending, nothing could stop Your Honour making that order so to speak.
82The other alternative of course is to adjourn as Your Honour has sought to do - is allow the Magistrates' Court to make their order - but Your Honour has now in effect given the sentence, albeit not imposed it, of a Community Corrections Order, so that may assist the Magistrates' Court.
83HIS HONOUR: See, s45 of the Sentencing - sorry - yes, of the Sentencing Act - it sets out the core conditions - what are known as the core conditions and paragraph (c) would have him reporting to a specified community corrections centre in two clear working days after the order coming into force. Even though I think during the pandemic they often have persons in Mr Ferguson's position report by way of telephone, I do not think that would be what parliament had in mind by way of reporting. I am in prison. I do not know when I will be released from prison but here I am reporting.
84MS PILLAI: Yes and, Your Honour, I must say - and Your Honour is indicating that Mr Ferguson is remanded on the other matters as I understand it.
85HIS HONOUR: Yes, that is what I understand.
86MS PILLAI: That is right and Your Honour is quite correct in that regard because he would be remanded and would not be able to comply with that condition.
87HIS HONOUR: Next Wednesday I should be in Adelaide on leave. South Australia is half an hour behind here. So 9 o'clock - sorry, the 9.30 hearing before the magistrate in Shepparton next Wednesday would be 9 o'clock in Adelaide. If the magistrate was of a mind to sentence Mr Ferguson to a Community Correction Order, there would need to be an assessment, which would be probably expedited because of the existing assessment. They say that took about an hour anyway.
88So if it was that at 2 o'clock Victorian time on Wednesday I listed this matter such that I would seek to be available at 1.30 South Australian time to be told of what the outcome was. I would have to link - I would have to come in audio-visually as would you two, or would it be safer - I think I have to be out of where we are staying - the hotel - we would have to be out of it by Thursday morning by about 10. That is 10 Adelaide time. If I listed this matter at 9.30 Victorian time on the Thursday, that is another alternative. That would allow for any irregularities on the Wednesday if you like. So that is how I am thinking - that I would make myself available audio-visually from Adelaide from the hotel that I would be staying at, either on the Wednesday or on the Thursday morning.
89MS PILLAI: Yes, Your Honour. I have no objection to that course. I can make myself available.
90MR BROWN: I too can be available and we are essentially replicating what we attempted this week, Your Honour, so I am content with that course.
91HIS HONOUR: So if I made it 9 o'clock - 9.30, rather - Thursday morning - that gives my associate an opportunity to arrange everything, which would mean that I would have to be available at 9 o'clock South Australian time. Thursday the what?
92MS PILLAI: 14th.
93HIS HONOUR: Thank you.
94MR BROWN: Yes.
95HIS HONOUR: Well, then, I will remand - I will have to sort this out with my wife. I will remand Mr Ferguson to appear before me on an audio-visual link on Thursday 14 July 2022 at 9.30 am - that is Victorian time - and I will remand him in custody.
96MS PILLAI: If Your Honour pleases.
97MR BROWN: If the court pleases.
98HIS HONOUR: Mr Brown, do you want an opportunity to use the link to speak to Mr Ferguson?
99MR BROWN: Yes, thank you, Your Honour.
100HIS HONOUR: Ms Pillai, do you want to use the link after Mr Brown has finished?
101MS PILLAI: No, Your Honour, may I be excused.
102HIS HONOUR: Well, I will just get my tipstaff to adjourn the court and ask him and my associate to arrange for Mr Brown to use the link.
103MR BROWN: Thank you, Your Honour.
ADJOURNED TO 14 JULY 2022
WHEN THE MATTER RETURNED ON 14 JULY 2022
104HIS HONOUR: Well, what I propose then is this, I propose to convict Mr Ferguson on the charges; I propose to place him on a community correction order with a duration of 15 months; I propose that he be subject to the following special conditions:
(a) supervision by a community correction officer;
(b) a condition in relation to drug abuse and dependency;
(c) a similar condition in relation to alcohol abuse and dependency;
(d) a condition in relation to programs to reduce re-offending; and,
(e) a condition in relation to unpaid community work, being 200 hours over a period of 15 months, the period of the order.
105Now, Mr Brown, are you in a position to get instructions from your client as to whether he consents to such an order?
106MR BROWN: Yes, Your Honour. I can have a quick word with him over the link, Your Honour. If we maybe put us in the lobby or other people in the lobby. I am not sure how it is done.
107HIS HONOUR: Well, it is a bit more complicated because I am in South Australia on the phone but I will see what my associate can do.
108MS PILLAI: Whilst that is being done, Your Honour, may I just raise instructions that it is 23 days not including today. It is just that one additional day that has been noted by Mr Brown but I do not take issue further.
109HIS HONOUR: Thank you for that, Mr Pillai.
110ASSOCIATE: Your Honour, I think I should be able to move everyone including you into the lobby and then bring everyone back when Mr Brown is ready.
111HIS HONOUR: Thank you.
(Short adjournment.)
112HIS HONOUR: Yes, Mr Brown.
113MR BROWN: Thank you for the opportunity, Your Honour. Yes, Mr Ferguson consents to the CCO, Your Honour. And just on the PSD, I have done another calculation. Maths is not my strong point, Your Honour, but from 20 June to today not including today, I still come to 24 days.
114HIS HONOUR: Well, I do not think it really matters, Mr Brown.
115MR BROWN: Thank you, Your Honour.
116HIS HONOUR: Whether it is 23 or 24, I have taken it into account as I say in reaching my decision. That is what I will do. He will be convicted. A community correction order for 15 months with the five conditions as I have spelt out - supervision, drug and alcohol assessment and treatment which are separate conditions, programs to reduce re-offending and 200 hours of unpaid work over 15 months. I take it no other orders are being sought, Mr Pillai.
117MS PILLAI: No. There was a forfeiture order that was made by consent and I just note that for the record.
118HIS HONOUR: Thank you, Mr Pillai. Any other matter, Mr Brown?
119MR BROWN: No, Your Honour.
120HIS HONOUR: Well, in those circumstances - - -
121MS PILLAI: Your Honour, I just wanted to confirm - sorry - it occurred to me that s6AAA might apply and I was not sure whether Your Honour addressed that last time.
122HIS HONOUR: I suppose it is conventionally thought that 6AAA applies to these proceedings. You would not disagree, Mr Brown?
123MR BROWN: Yes, I am sorry, Your Honour. I am just double checking that, Your Honour, if I may.
124HIS HONOUR: The other thing that occurs to me is Sex Offenders Registration.
125MS PILLAI: Yes, I am just checking that, Your Honour. I do apologise. I have just come out of another hearing. There is a SORA application that applies - and I apologise for not raising it earlier - that is for 15 years. It is in the original prosecution sentencing submissions.
126HIS HONOUR: They are class 2 offences.
127MS PILLAI: Yes.
128HIS HONOUR: Probably it does no harm if I did make a s6AAA declaration.
129MR BROWN: No, Your Honour.
130HIS HONOUR: The declaration I make would be in the absence of the pleas of guilty I would have convicted your client and placed him on the same community correction order. The period of the order would have been two years and it would have the same conditions. Mr Brown, do you want to say anything about the Sex Offenders Registration Act?
131MR BROWN: No, Your Honour. As my friend has outlined, that was in the prosecution opening, Your Honour, and I have got nothing to submit in regard to that.
132HIS HONOUR: Well, both charges contain Class 2 offences under the Sex Offenders Registration Act 2004. Accordingly, Mr Ferguson, you are a registrable offender and the period of your reporting is 15 years. My associate will have to send paperwork to your client, Mr Brown, in relation to that registration and his initial obligations and longer term obligations.
133MR BROWN: Yes, Your Honour.
134HIS HONOUR: If that is all then, I would ask my associate to adjourn the court. I do not know where you are, Mr Brown, in relation to Mr Ferguson but I daresay you are at different places. Do you want to use the link after the court has been adjourned?
135MR BROWN: Yes, that would be good, thank you, Your Honour, just to have a brief word with my client. Thanks.
136HIS HONOUR: Mr Pillai, do you want to use the link after Mr Brown has used the link?
137MS PILLAI: No, thank you, Your Honour.
138
HIS HONOUR: Well, unless there is anything else then I would ask my associate if she would adjourn the court and arrange for Mr Brown and
Mr Ferguson to speak again.
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