Director of Public Prosecutions v Ferguson

[2016] VCC 1473

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01350

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN FERGUSON

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	3 October 2016
DATE OF SENTENCE:	4 October 2016
CASE MAY BE CITED AS:	DPP v Ferguson
MEDIUM NEUTRAL CITATION:	[2016] VCC 1473

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering
For the Accused	Mr J. Lavery

HER HONOUR: 

1Dylan Ferguson, you have pleaded guilty before me to one charge of false imprisonment, one charge of common assault, and one charge of possessing a drug of dependence.  The facts underlying your offending are as follows.

2On 20 November 2014, the complainant Daniel Yakoub attended at McDonald's in Roxburgh Park, accompanied by his partner, Lisa Rillo.  While there, he met you, your co-accused Jai Kennedy, and a friend of Kennedy's called Birch.  Kennedy had established that you would be able to obtain some methamphetamine from him.

3The group met again later at McDonald's, after Mr Yakoub confirmed with Kennedy he would be able to get an 8-ball from a drug supplier, and at about 3 am on 21 November 2014, a vehicle arrived at the carpark of the Kealba Hotel containing Kennedy, yourself and two others.  Yakoub and Rillo arrived soon after in a car driven by another person.

4Yakoub had not been able to get the drugs from the previous supplier, and had approached another one seated in a van in the carpark of the hotel.  After some negotiations, you discussed the purchase of methamphetamine with the passenger of the van, and agreed on a price of $1,100, which you paid.  The passenger then handed a bag of white crystal powder to you.

5You, Kennedy and the other co-offenders returned to your car and sampled the drugs, then left it and confronted Yakoub, yelling you wanted your money back; that you had been ripped off and provided with poor quality drugs; and that Yakoub had to get the white van back to return their money.  That van had apparently driven off in the meantime.

6When Yakoub said he did not know the driver of the van and had only just met him in the hotel, you punched Yakoub to the face and he fell to the ground.  When he stood up again, you demanded he repay the $1,100 within 30 minutes, producing a metal pole from the car to reinforce the threat.

7You then demanded Yakoub get in your car, and you struck him when he was reluctant to so.  Rillo tried to persuade Yakoub not to go, but was eventually verbally abused and threatened with violence by you if she interfered.  Yakoub then got into the car with you, in which were also Kennedy and the two other co-offenders, Croon and Baxter.

8He was driven around the western suburbs of Melbourne, including St Albans, Sunshine, Taylors Lake and Werribee, with all offenders punching him to the head and body.  Yakoub also heard you tell an unknown person on your mobile phone that they had got you, that they, "Were going to hold you for a few days, and teach you a lesson".

9At various times the car stopped and you got out, but told Yakoub he was not allowed to leave.  After a stop at Bunnings in Sunshine at about 8.15 am, you bought cable ties and bound Yakoub's wrists.  He continued to be punched and slapped by all of you, and was threatened by an unidentified offender with a small jetliner near his eye, and he was threatened with a knife by you.

10Eventually, the car was parked in Mount Cottrell.  He was taken from the car, tied to a tree, and the cable ties replaced, and four cable ties were attached to his legs.  While tied to the tree, Yakoub was again punched to the face and kicked, and had bottles thrown at him.  However, finally the rope tying him to the tree was cut and he was left on the ground, and you all drove away.

11At about 10.30 am, Yakoub managed to walk to the home of a nearby friend, his hands still bound by cable ties.  Police attended, and he was taken to the Werribee Police Station and interviewed.

12On 2 December 2014, police attended at your home in Numurkah, where you were arrested, and in a search police located two Tasers disguised as mobile phones in mail packaging. Your possession of those items is subject to a summary charge of possessing a prohibited weapon, which is uplifted and heard in these proceedings pursuant to s.145 of the Criminal Procedure Act.  They also seized a zip-lock bag, ultimately containing a white substance, other empty zip-lock bags, and a bag containing white powder with five small, empty zip-lock bags.

13You were taken to the Shepparton Police Station, where you participated in a record of interview, denying all allegations.

14Your actions in restraining Mr Yakoub, first getting him into the car and then keeping him there, underlie the charge of false imprisonment, the maximum penalty for which is ten years' imprisonment.  The various assaults that you committed upon him underlie Charge 2 on the indictment, common law assault, which has a maximum penalty of five years' imprisonment.  The drugs found in your possession, which are a small amount of methamphetamine, underlie the charge of possessing a drug of dependence, which has a maximum sentence of 30 penalty units or five years' imprisonment.  And the maximum penalty for possessing a prohibited weapon in your case, the charge was in fact bringing a prohibited weapon into Victoria, as you had bought them by mail, is two years' imprisonment or 240 penalty units.

15You were arrested and remanded in custody, and eventually granted bail on 5 March 2015, with a condition that you reside with an aunt in New South Wales.  You were working up there, but obviously made the acquaintance of other drug users.  I will refer to this later in my sentencing remarks, but it is quite clear you have had a problem with methamphetamine for some time.

16In any event, you became involved in some offending arising over an alleged drug debt by a dealer to a customer.  You were, apparently according to police, involved in a confrontation.  You were apprehended in a car driven by a co-offender where a dismantled firearm was discovered, ownership of which was placed at your door by the driver of the vehicle.

17You were then dealt with in New South Wales, where you pleaded not guilty but were found guilty of the offending and placed on a term of imprisonment of 21 months, with a minimum term of 12 months.  You have served that time in New South Wales, but apparently an appeal against conviction is still on foot there.

18You were arrested on those matters on 6 September 2015, and completed that sentence on 5 September 2016, when you were extradited to Victoria in order to be dealt with for the offending before me.

19I now turn to your personal circumstances.  You are now aged 23 and were 21 at the time of the offending.  You are the second of three boys born to your parents, who lived together for many years despite having a difficult relationship involving an amount of conflict, which you told psychology Gina Cidoni, whose report dated 26 September 2016 was tendered on the plea.

20The family eventually moved to Benalla, at which time you were 13 and decided to leave the family home.  It also appears there was a fair amount of abuse directed from your father towards you.

21You moved out of home at the age of 13 to live with a friend.  You then went to move with an aunt in Queensland, and stayed with her until you completed year ten at school, which was your last year of schooling.

22You than returned to Victoria at the age of 17 and lived with a girlfriend in Benalla for a 12 month period.  That relationship ended, and you became involved in a second relationship, which lasted for a period of three years.

23When you returned to Victoria, you worked at McDonald's and undertook a TAFE course, obtaining Certificates I and II in building.  You had a variety of short-term labouring jobs, including working in a concrete works.

24Shortly before this offending, when, as I have said, you were aged 21, you were working at the Benalla abattoirs, and it was indeed cash from that job that you had brought with you in order to pay for the drugs supplied to you via Yakoub.

25I should note that Mr Yakoub has made no victim impact statement in relation to this matter.

26You have a reasonably problematic prior criminal history, although unsurprisingly, given the very young age at which you left home, a lot of it derives in the Children's Court, starting in 2008, and you have been dealt with for burglaries, thefts, use of drugs, assaults, damaging property, and possession of cannabis.

27You have a fairly long-standing prior drug history, beginning with the use of cannabis in your early teens, progressing fairly quickly to heavier drug use, the main drug of choice being methyl amphetamine.

28It appears that you have demonstrated behavioural problems since you were a little boy, and your mother, who gave evidence on the plea, said she had taken you to innumerable practitioners, and along the way, most unhelpfully it would seem, you had been given various diagnoses such as possible Asperger's Syndrome, bipolar and schizophrenia, but without anything particularly definite being established which could assist in the treatment of that behaviour.  It would appear that in an early stage you were diagnosed with attention-deficit hyperactivity disorder, although your mother said on the plea that whilst you were treated with some Ritalin, she had difficulty accepting that diagnosis.

29In any event, although you have appeared on a number of occasions, primarily in Children's Court matters, you have not been dealt with by way of imprisonment until your involvement in this offending, and then the offending in New South Wales.

30Although on your version of events, it would appear you have been unjustly imprisoned for something you did not do, at the same time that period in gaol appears to have assisted you.  You were introduced to Narcotics Anonymous and undertook their 12 step program, which you have found extremely helpful, and you also told me during the plea that in particular you have been educated in the sort of diet a person who has ADHD needs to carefully undertake.  That is, avoidance of preservatives, food colourants and so forth.

31It would seem from what you said to me in court in particular, that that rehabilitative treatment has had a particular impression upon you, and indeed your mother in giving evidence on the plea said she had never seen you in such a state of good health as you now present.

32I commented during the plea that this simply goes to show that proper rehabilitative measures, both inside and outside gaol, are enormously important for young people like yourself who have had difficult backgrounds, who perhaps carry some inherent psychological or psychiatric difficulties, and who all too easily fall into the maelstrom of the ice epidemic that is gripping our society at the present time.

33If you have got ADHD, ice is a particular problem, in that it will not have the normal effect that it would have on someone not suffering that condition.  Ritalin, which is a medication used to treat ADHD has an amphetamine base, and it serves to sharpen the concentration of a person suffering from ADHD and in fact settle them down, in a way it would not another person who did not have this condition.  You certainly explained to me that initially, methamphetamine did have this effect upon you, but of course, the more you use it, the more you need, and the greater effect it has upon you in terms of the amount needed for the highs, and the fact that the more you use the bigger the lows are when you are coming off this drug.

34It was the opinion of Ms Cidoni that there has been some psychotic reaction by you to the use of in particular methamphetamine over the years, and of course it is well-known that amphetamine-based drugs do interfere with the organic structure of the brain, and can result in a psychotic reaction and disordered thinking.  It was certainly her view that you did present with some signs of disordered thinking, and that testing she conducted upon you exposed social difficulties by you, and anxiety.

35She did make the point that you appear to have a limited treatment history, and indeed I note that the last time that you were placed on a community corrections order, which was for a six month period imposed in 2014, the only special condition imposed was one of unpaid community work.

36In any event, you do present today to court in probably a better state than you have been for some time.  It is my view that this offending is of course serious.  False imprisonment, restraint of persons and assault upon them of the kind experienced by Mr Yakoub, is serious offending.  Although it occurred in the context of a drug deal, it is still of concern to the court and to the community, and in some ways it is of particular concern; much of the violence seen in these courts arises out of abortive drug deals.  Run-throughs, aggravated burglaries and the like.

37The ultimate addiction of people taking drugs and their involvement in drug deals, and the money that they need which is raised by crime that they then turn to, are part of the dreadful scenario of the epidemic of methamphetamine in this community.  However, there is a great deal of violence, in particular arising in the sorts of incidents such as the one that has brought you here before this court today.

38You continue to enjoy good family support.  You have a younger brother living in Wodonga, who is employed and with children, who has offered to have you live with him, and to assist you on the road to recovery.  Additionally your mother, who has now separated from your father, has offered to have you reside with her and her partner.  She runs a mobile coffee van, and is of the view that there is sufficient work for you to be included in this enterprise.  It was her preference that you in fact reside with her, and I do agree with that.  It does seem that it would be helpful to you to have perhaps a little more authority in the structure that you go into, once you finally leave gaol.

39It was a submission of your counsel that I should deal with you by way of a combination of gaol and community corrections order, that period being represented by the time you have already spent in custody.  Whilst not opposing that form of sentencing, it was the prosecution's submission that you should be required to serve more time in custody before releasing you on the community corrections order.

40I have had you assessed by Community Corrections, and you have been found suitable for placement on such an order.

41Overall, taking into account your youth, your plea of guilty, the period of time you have already spent in gaol, given your New South Wales experience, the fact that in my view, your rehabilitative prospects have been enhanced by the assistance you have had in gaol, it is my view that I should deal with you by way of a combination as requested, but also for a slightly longer term than that proposed by your counsel.

42I therefore sentence you as follows.  Could you stand up, please, sir?  This is going to be an aggregate term, because in my view the offending essentially arises out of the same set of circumstances.

43I am going to sentence you to an aggregate term of five months' imprisonment, after the service of which you will be released on a community corrections order for a period of 18 months.

44I can only place you on a community corrections order with your consent, Mr Ferguson, so I need to explain to you the conditions that attach to it.

45They are firstly that you must report to Community Corrections within two days of the order coming into effect.  That is, within two days of you being released from prison.

46Whilst on that order, you must not commit another offence punishable by imprisonment.  You may not leave Victoria without the permission of the Community Corrections office.  You must report to and receive visits from Community Corrections.  You must not attend upon Community Corrections whilst under the influence of drugs or alcohol.  You must report any change of address or employment within 48 hours of that change to Corrections.  You must obey the lawful directions of Community Corrections.

47I also am going to order that you undertake 150 hours of unpaid community work.  You are to attend for assessment and treatment for drug and alcohol use.  And you are to attend for assessment and treatment for mental health difficulties.

48Are you prepared to enter this order?

49OFFENDER:  Yes, Your Honour.

50HER HONOUR:  I am also going to order judicial monitoring on a six-monthly basis.  Now, that can be done via Wangaratta Court through a remote facility through video-link, so you will not have to come trouping down here.

51And I declare that 122 days of this sentence have already been served by way of pre-sentence detention.  Have a seat, sir.

52The first judicial monitoring will be on 5 April 2017.

53You are prepared to enter that order, Mr Ferguson?  We will just get the paperwork printed out.  Thank you.

54MR PICKERING:  Your Honour, obviously Your Honour's made the disposal order as well.

55HER HONOUR:  Yes.

56MR PICKERING:  Can I just ask, is it Your Honour's practice, because practices seem to differ with judicial monitoring, as to whether you require attendance by the prosecution for the judicial monitoring?

57HER HONOUR:  No, I do not think I do.

58MR PICKERING:  Your Honour.

59HER HONOUR:  No.  I mean, it is very helpful that there is more involvement by the prosecution in the CCO breaches, but I do not think it is required for judicial monitoring.

60MR PICKERING:  Your Honour.

61HER HONOUR:  There is the disposal orders signed.

62Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of 14 months with a minimum term of nine months' imprisonment.  Thank you.

63Does that all make sense?  So you have got about another month to go.  Do you reckon you can get yourself sorted out by then?

64OFFENDER:  Yes, Your Honour.

65HER HONOUR:  Good.  So good luck to you, Mr Ferguson.  It seems you have made some good strides forward, and hopefully that will keep going.  I make the comment that obviously the ultimate reformation of an offender, particularly a young offender, is always in the community's best interest.

66Yes, thank you.  I thank counsel for their assistance in this matter, and we will adjourn to Thursday.

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