Director of Public Prosecutions v Ferguson

[2018] VCC 1683

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02059
CR-17-02060

DIRECTOR OF PUBLIC PROSECUTIONS

v

HARLEY FERGUSON
COREY JAGO

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 October 2018
CASE MAY BE CITED AS:	DPP v Ferguson
MEDIUM NEUTRAL CITATION:	[2018] VCC 1683

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown
For Accused Ferguson	Mr J. Kantor
For Accused Jago	Mr. R. Nathwani

HIS HONOUR: 

1Corey Jago, you were born on 3 October 1994 and Harley Ferguson, you were born on 6 October 1993.  It was around September 2010, you, Mr Jago, were 15 years and 11 months and you, Mr Ferguson, were 16 years and 11 months.  You were friends with each other at that time.  You both knew a number of young women from school and from socialising in Ballarat.  You knew the victim in this matter and her older sister.  At the time in 2010, the victim was 13 years and six months. 

2On a day in mid to late-September 2010, the victim and her friend came around to your house, Mr Jago.  You, Mr Ferguson, were there as well.  At some point you, Mr Ferguson, and the victim went to a bedroom.  You kissed and undressed.  You put your finger in her vagina.  You, Mr Jago, then came into the bedroom.  You wanted to participate in the sexual activity.  Ultimately you penetrated her vagina with your penis, pausing at one point to put on a condom.  During this activity, you, Mr Ferguson, had the victim masturbate your penis.  After a short time, the sexual activity stopped and you two men and the victim left the room.

3As is quite commonly seen in these courts, the victim was unable to tell of or make a complaint about what had occurred to her for some years.  She went to the police in July of 2016.  You men were interviewed in September of 2016.  You made admissions and charges more serious than what ended up being on the indictment, were laid.  Those serious charges remained hanging over your heads for some time. 

4But each of you sought a sentence indication.  The prosecution consented to the sentence indication and submitted that a non-custodial penalty was entirely appropriate.  I heard the applications on 31 July and a plea thereafter on
3 August.  But on 31 July, I gave the indication that should you plead guilty,
I would not impose a gaol term.  You were both then arraigned and pleaded guilty, in your case, Mr Jago, to one charge of sexual penetration of the victim's vagina with your penis, and in your case, Mr Ferguson, to one charge of sexual penetration of the victim's vagina with your finger and one charge of an indecent act with the victim, being having her masturbate you. 

5The victim was aware of the sentencing indication process.  Subsequently she completed a victim impact statement, which was read out in court to me today. 

6In the victim impact statement, she commenced by indicating that the crime had had a considerable emotional impact on her life.  She then outlined a number of area where her lift has been greatly affected.  She makes clear she has struggled with post-traumatic stress disorder and panic and anxiety attacks.  They have left her with great difficulties in dealing with eating and it became for her a great trouble and an eating disorder.  She is just coming to grips with that now, although it is still something that has ongoing difficulty for her. 

7She had trouble leaving home or travelling, as she did not feel safe and she gave examples of that.  She spoke of losing jobs, or not being able to attend work, which has diminished her capacity to develop a career.  She speaks of having trouble sleeping and having flashbacks.  She also speaks of not really feeling happy or enjoyed her life.  She feels boxed in, does not feel comfortable and does not feel safe.  She has started attending for some counselling and things perhaps are getting better as a consequence of that.  But she does find it hard in relationships.  She spoke about relationships and how - the effect upon them, that is, difficulties with family and with the opposite sex. 

8It is hoped that things will improve as time goes on.  What she said was that she would have and still will always - well she struggles, is what she says and holds anger in respect of that and it is hoped that this process, where you have taken responsibility for what occurred, might have a rehabilitative effect upon her.

9The central feature in assessing the gravity of your crimes was the victim's very young age, 13 years and six months.  But also relevant to the question of gravity is just how young each of you were.  Considering all of the circumstances of the offending, I do not conclude the gravity is at the absolute lowest end of the spectrum, as described by our Court of Appeal in Clarkson, that is, where teenagers are involved in affectionate ongoing relationships.  This is not that sort of case.  However, this one-off offending is, in my view, towards the lowest end of the spectrum in determining gravity.  It is a requirement of our Sentencing Act that I do assess the gravity of the offending and I consider it to be towards the lowest end.

10The sorts of circumstances have been before the courts before.  That is, offenders who commit a crime such as this as teenagers and who are then brought before the adult courts years later.  The most recent example of the Court of Appeal dealing with similar circumstances was in the case of Sherritt v The Queen.  What was said in that case was the following at paragraph 33.  In that part of the judgment, His Honour Priest J indicated that,

"Had you gone to court immediately, you would have been dealt with", both of you "in the Children's Court and thus would have been subject to a more benevolent sentencing regime than that available to him as an adult."

11His Honour went on:

"It is perhaps unprofitable to assay what disposition the applicant's offending might have attracted, had he been dealt with as a child."

12Pausing there, in discussions with your counsel, it has been made clear that
I will not endeavour to second guess what would have occurred had you gone to the Children's Court at the time, save that it would have been - you would have been subject to the more benevolent sentencing regime.  I have taken that very much into account. 

13In Sherritt, His Honour went on to refer to what has become perhaps a
well-known paragraph from Nettle J, which was set out in the case of Boland.  His Honour said the following:

"Decisions in this court in Nutter and Better recognise that where offences which have been committed while the offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending.  Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime and of the offender's moral culpability, take into account that what was done was done as a child or as a person of immature years and not as an adult or a person of greater maturity.  Counsel for the appellant is also correct that general deterrence ordinarily has a lesser role to play in sentencing of children and immature young people than in the case of mature adults and that is significant that the appellant has not re-offended in more than 24 years." 

14That was the circumstances of the case of Boland.  Here there has been no further offending since this offending in September 2010, save for one matter, which I will touch on, which is not relevant. 

15"With respect," His Honour Priest J went on in Sherritt to say:

"I agree that common sense and fairness dictate that the assessment of the nature and gravity of the crime and the applicant's moral culpability must take into account that what was done was done as a child and even absence statutory sanction, general deterrence will ordinarily have a lesser role to play in the sentencing of children than in the case of adults."

16Thus, in this case, that is, your case, Mr Jago, and your case, Mr Ferguson,
I consider that your moral culpability to be low because of your sheer immaturity.  It follows that fairness dictates that the denunciation that is a sentencing purpose must be moderated to a significant degree.  Further, the ordinarily powerful sentencing purpose of general deterrence is also much moderated because of your age at the time of the offending. 

17Indeed those already moderated sentencing purpose and your prospects of rehabilitation as well, must also be considered through the prism of the fact that you are still at a young age at this point.  Thus, when you fall to be sentenced now, Mr Jago, you are 23 and you, Mr Ferguson, are 24. 

18I have considered and applied all the principles relating to sentencing young offenders, as articulated in Mills and Azzopardi.  Those principles require even more emphasis, as both of you have become hardworking contributing members of your community. 

19In your case, Mr Jago, you have a good work history.  Your current employer rates you highly and wants you to continue in the role that you have.  You are a supervisor at your young age of other workers.  You are in a stable long-term relationship, with a one year old child.  You have significant responsibilities and have met them well.  All the signs are that you have matured and well understand the wrongfulness of what you did as a 15 year old boy. 

20I accept your plea of guilty is of real value and that you are remorseful and ashamed.  I have had that confirmed of course in how you dealt with and communicated with the Office of Corrections staff upon your assessment.  You were ostracised in your community after the crime and I am told that still remains to some extent.

21Overall, these proceedings have operated as a hard lesson.  I do not expect you will be back before the courts.  Your one court appearance in 2014, saw a magistrate give you a chance with an adjourned undertaking, without conviction.  You seek a non-conviction penalty here.  I will defer that until I have spoken about the personal circumstances of Mr Ferguson. 

22Harley Ferguson, you are now 24 and involved in a long-term relationship.  Your partner has a teenage son and you have taken on the onerous role of a
step-father to a teenager, even at your young age.  You also have secured good work, after a difficult time at school.  You have worked as a landscaper and a bricklayer.  You hope in the future to gain work in the food industry.  You have now a solid, stable and contributing life with plans.  Your prospects, in my view, like that of Mr Jago, are excellent. 

23As noted, the prosecution did not argue for any gaol term.  A submission from the prosecution in respect of both of you, was that a community corrections order ought be imposed, but because of the seriousness of the offending, it ought be with conviction. 

24Counsel for each of you has submitted that the appropriate sentencing disposition is an undertaking, without conviction, or at worse, a community corrections order without conviction. 

25What was argued with respect to a non-conviction penalty, was that if the charge had been dealt with at the time in the Children's Court, in that regime, it is more likely the penalty would have been a non-conviction, however, as was noted in Sherritt, it is unprofitable to assay or predict precisely what the Children's Court may have done.  However, the submissions of your counsel emphasise that a conviction is a lifelong penalty and one likely to impinge upon your employment prospects. 

26Pursuant to s.8 of the Sentencing Act, I am required to consider all the circumstances, including but not limited to, your prior character, the seriousness of the offending and any economic and social wellbeing that might be adversely affected by a conviction. 

27The submissions of both counsel did concentrate on the future financial employment risks if a conviction was recorded.  Both you men have, if I might describe it, labouring-type work at the moment.  However, as our community increasingly focuses upon risk, especially to children, work in all fields are now affected by such things as old convictions, that thus in you continuing to work or contribute to your employers by being able to work with the public, a conviction may well and probably would cause adverse impact to your social or economic wellbeing and it may create difficulties for you remaining with an employer.

28As was pointed out, there are serious examples of offences committed, or examples of very serious offending committed by young men who have been punished by non-conviction penalties.  The example often turned to is the DPP v Candaza, where two offences of armed robbery were before the court and the imposition by the sentencing judge was of community corrections orders, without conviction.  The Director appealed against that.  Chernov J indicated that at paragraph 15 of that judgment that:

"Although I consider the sentences imposed are very light, it seems to me that in all the circumstances of the case, the seriousness of the offence should not wholly dictate the punishment that is appropriate."

29It is always the case that the individual circumstances of an offence and an offender, rather than the results in other cases, ought lead to the just and appropriate penalty.  That is, individualised sentencing.  Here the crimes and in particular, the circumstance of you men now and since, that is, you as the offenders, leads me to the conclusion that a conviction is unnecessary.  It is a lifelong adverse impact and it will likely have practical implications. 

30This does not and should not be read as diminishing the seriousness of the offending.  It should not be read that the adverse impact on you two that I have spoken about should be somehow compared to the adverse impact upon the victim.  In speaking about adverse impact upon you as to your future, I am speaking about potential adverse impact.  There is no doubt there has been very real adverse impact upon the victim, but the two matters are not to be seen as comparable and requiring my sentence to somehow balance them out.  It is hoped that my condemnation of what you did and your shame and your remorse and your concern now for the victim will provide her with some comfort. 

31Recording a conviction is not necessary to achieve what Vincent J described in a number of cases as the social rehabilitation of victims.  But all that said, the just and appropriate penalty requires some punitive aspect, best achieved in my mind, by the imposition of a community corrections order with some unpaid work, rather than an adjourned undertaking.

32What I propose is this:  You two men be on the same length of community corrections order with the same unpaid community work hours.  I do that because of all the circumstances of the offending, but I do recognise there were two offences committed by you, Mr Ferguson, but nonetheless, in my view, they can be dealt with with like penalty.

33Without conviction, you, Corey Jago, are placed on a community corrections order.  It will go for nine months.

34The conditions of it will be that you will be under supervision for that time and you must do 50 hours of unpaid community work.  There are other conditions and the like that follow that I will read out to you when the document is produced.

35In respect of you, Mr Ferguson, you likewise will be on a nine month community corrections order, required to do 50 hours of unpaid community work and to be under supervision.  I make it clear that your community corrections order is without conviction.

36An application - well I must consider whether you should be placed on the Sex Offender Registry.  That is a discretionary matter, given all the circumstances of your ages and the like at the time and as a consequence of seeing where you have travelled from that time, I have no doubt whatsoever that you do not present as a danger to the sexual safety of any member of the community and I decline to impose upon you a requirement that you register under the Sex Offender Registry.

37Is there any other orders required? 

38MR BROWN:  Your Honour, just the opening did ‑ ‑ ‑

39HIS HONOUR:  464?

40MR BROWN:  ‑ ‑ ‑ refer to a forensic sample order.  Of course that's discretionary as well. 

41HIS HONOUR:  Yes, all right.  Do you seek that to be put to one side?

42MR KANTOR:  Yes.

43MR NATHWANI:  Yes, Your Honour. 

44HIS HONOUR:  Yes. 

45An application is made as a consequence of the offending that you have pleaded guilty to, that you provide a forensic sample.  That is sometimes just passed over as a matter that just follows one to the other because of the nature of the offending and the nature of the offender.  But here it is not - it should not be done that way and will not be here. 

46I have considered, as it is clear, the gravity of your offending, but all the other circumstances lead me to the conclusion that it is not in the interests of justice that you be required to provide a forensic sample.  I do not consider that each of you are a danger to the sexual safety of anyone.  I consider both your prospects for remaining law-abiding citizens to be excellent.  I am not going to require you to go to a police station and have a sample taken for it to be retained on the database.  So I decline to exercise a discretion to order the forensic sample to be taken. 

47MR BROWN:  As Your Honour pleases.

48MR NATHWANI:  As the court pleases. 

49HIS HONOUR:  Both gentlemen can leave the dock and come up behind their lawyers for the process of signing the documents. 

50Just before I go on, Mr Jago, the document just produced is information about you that - it is just loaded into a system at some other time where they did not know where you lived, so you have go no fixed place of abode, which I do not think is probably right.  So ignore that, it is not an essential part of this order.  The critical thing is that it will be - the corrections order will be dealt with out of Ballarat, all right? 

51So just starting with - continuing on with you, it is for nine months.  That will last until July next year.  You will see the date. 

52The mandatory terms that apply to everyone on a corrections order are these.  And this is important you understand this one.  Do not commit an offence for which you could be imprisoned during the time the order is in force.  So you must remain law-abiding.  Otherwise you come back to me and all that I said about your prospects and that will just go out the door.  But - well, just continue the way you have been, that is, do not commit any offences of any type, not just during the time of this order, but there are implications if you do in the next nine months. 

53The next set of things that I will outline to you are really about cooperating with the Office of Corrections.  It is not a place you are familiar with, I am sure, but you will have to cooperate.  I am sure you will.  The first is that you have got to comply with any obligations or requirements that are prescribed on the sentencing regulations.  What I am told about that, is that they will need to take a photo of you to upkeep - know who you are and all the rest of it.  Just cooperate with that.

54You have got to report to and receive visits from the Office of Corrections, if they arrange it.  You must report to the Community Corrections Office there in Ballarat, the address is here, within two clear working days.  Get it started.  Then, you have got to let them know if you change your job or your address.  You cannot leave Victoria without getting permission.  So it is any trip over the border, but you will get permission if you let them know, I expect.  And you must obey all lawful instructions.  So it is just cooperation.  I am sure you will be able to manage that. 

55The next part of it is that applies to just you.  And that is 50 hours of unpaid community work over the nine months.  And you have got to be under supervision.  Supervision will be, they will ask for some meetings, just to see how you are going, all right?  These are not voluntary, these are not to suit you, these are compulsory requirements upon you because you committed an offence and there are consequences.

56Not everyone - and this is - I will not repeat this to you, Mr Ferguson, but it applies.  Not everyone on community corrections orders have had the path in life that you have.  They might consider that you could be introduced to the drugs that they regularly take, or the sorts of crimes that they regularly get themselves involved in.  You have just got to stand apart, all right?  Even be an example for them, if you understand that.  There it is.  So you have got to do 50 hours and be under supervision.  So if you sign that, Mr Jago, it will bring the matter to the end. 

57Mr Ferguson, I will not run through each of the same mandatory conditions, you can read them, but critically, do not commit an offence which you could be imprisoned during the time of the order, you will come back before me.  I will not forget this case.  Some I do, this one I will not.  You have got to do the 50 hours of unpaid community work and you take into account what I said before and you have got to be under supervision.  If you consent to that, just sign it.

58Just bear with me for a moment. 

59Just to be clear, 6AAA(1)(b), because it is a community corrections order of less than two years, I do not have to indicate exactly what I would have done, but had you gone to trial and been found guilty of the offence, either this one or rape, there would be no other choice but gaol.  Do you understand the benefit of your plea? 

60MR KANTOR:  As the court pleases.

61MR NATHWANI:  Thank you, Your Honour.

62MR BROWN:  If Your Honour pleases. 

63HIS HONOUR:  You will get a copy of those. 

64All right, with those, that both Mr Jago and Mr Ferguson can head on their way.  Just before they go, I am very grateful to them, their lawyers, their families for the continued attendance at court when timetables have not necessarily worked for them, but it is not missed that - it is important that I am able to be fortified in the confidence I have about them, that they were able to do as they did and just come when they were asked to and so on. 

65Finally I thank counsel for their very considerable assistance in the resolution and pleas in this matter.  Mr Ferguson and Mr Jago should understand that their lawyers were first-class and have got them a result that might not have otherwise have been what would have occurred.  Thank you. 

66MR KANTOR:  If Your Honour pleases.

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