Director of Public Prosecutions v Ferguson (a pseudonym)
[2014] VCC 1993
•28 November 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| PETER JOHN FERGUSON (A PSEUDONYM) |
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JUDGE: | Her Honour Judge Wilmoth | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 November 2014 | |
DATE OF SENTENCE: | 28 November 2014 | |
CASE MAY BE CITED AS: | DPP v Ferguson (A pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1993 | |
REASONS FOR SENTENCE
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Criminal law –sentence
Pleaded guilty to one charge of contravening a Family Violence Intervention Order, one charge of intentionally causing injury, one charge of recklessly causing serious injury, two charges of rape, one charge of false imprisonment and one charge of recklessly causing injury, two summary charges of committing an indictable offence whilst on bail – assaulted current partner – intoxication – 36 year old indigenous offender raised by alcoholic parents with violent and dysfunctional family life – little education (illiterate) – cognitive deficits - extensive prior history including violent offences – no prior sexual offending – past attempts at drug and alcohol rehabilitation unsuccessful.
Bugmy v R [2013] HCA 37; Pasinis v R [2014] VSCA 97
Sentence: 9 years with a non parole period of 6 years
Note a pseudonym has been used for the name of the offender.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms I. Dipietrantonio | OPP |
| of Public Prosecutions | ||
| For the Accused | Ms M. Tittensor | Robert Stary & Associates |
HER HONOUR:
1 Peter John Ferguson[1], you have pleaded guilty to the following charges: one charge of contravening a family violence intervention order; one charge of intentionally causing injury; one charge of recklessly causing serious injury; two charges of rape; one charge of false imprisonment; and one charge of recklessly causing injury.
Pseudonym[1]
2 You also pleaded guilty to two summary charges of committing an indictable offence whilst on bail.
3 On 3 January 2014, you were served with the intervention order obtained by your partner, the complainant, in November 2013. On the same day, you were taken into custody in relation to other matters and released on 5 February. You went to the house where you had been living with the complainant and on 14 February you assaulted her.
4 She left her home on 17 February and stayed in a safe house until the 20th when she returned home.
5 You had telephoned her the previous day and apologised for your behaviour promising not to do it again.
6 On 23 February, you committed the other offences against her and were remanded in custody where you have remained ever since.
7 On your release from custody on 5 February, the complainant had told you that she had been unfaithful to you whilst you were in custody. You told her you didn’t have an issue with that and thanked her for being honest.
8 On 14 February, you had both been drinking at home and were drunk. You argued and you accused the complainant of sleeping with other men. You punched her and she recalls blacking out and waking up the next morning with bruises on her face and fractured ribs.
9 It was after this that she moved into the safe house for several days.
10 Your attack on her on this occasion forms the basis for Charge 2, intentionally causing injury, and for the summary Charge 6, committing an indictable offence whilst on bail.
11 On the evening of 22 February, you were again drunk at home and repeatedly asked the complainant whether she had slept with your friends while you were in gaol. She said, “No,” and you became angry and repeatedly slapped her face over a period of hours. You punched her in the face causing her mouth to bleed and you tried to choke her. You continued punching her and she was terrified that you were going to kill her.
12 These actions, and others set out in the following paragraphs numbered 6, 7 and 8, are the basis for Charge 3, recklessly causing serious injury.
13 You then compelled her to perform oral sex upon you by forcing your penis into her mouth despite her resistance, and causing her distress. You then punched her in the face, causing her to hit her head on a tricycle, which caused her head to bleed. You then again forced your penis into her mouth.
14 These two instances of rape form Charge 4 which is a representative charge.
15 You continued to ask her the same question and when she replied, “No,” you punched her to the head and kicked her ribs.
16 Later that night you again demanded that she tell you the truth and head-butted her nose several times. She was bleeding, bruised and in great pain. You ordered her to have a shower and she complied because she was scared. She wanted to leave the house but you would not leave her side.
17 This is the basis for Charge 5,: false imprisonment.
18 Again you asked the same question and stabbed a pair of scissors into the complainant’s leg whereupon she felt extreme pain and was bleeding heavily. This is Charge 6, recklessly causing injury.
19 The complainant believed that in the early hours of 23 February she lost consciousness and has no recollection of that part of the morning but she awoke to find you on top of her with your penis in her vagina.
20 She did not object as she was frightened that if she did, the beatings would continue. You continued to penetrate her until you ejaculated inside her.
21 This is Charge 7, the second charge of rape.
22 The offence is aggravated by the fact that the complainant was either asleep or unconscious at the time and by the fact that you did not use a condom.
23 This prolonged period of abuse commenced around 8.30 pm on 22 February and did not cease until the morning of the 23rd. The complainant remained in the house during that day unable to leave as she feared you would chase her. Later that evening you began drinking again and questioned her again. You told her she deserved everything that was coming to her and you then left the house threatening to track her down and kill her if she tried to leave.
24 I digress briefly to explain that the remaining summary charge, committing an indictable offence whilst on bail, arises from the incidents on 22 and 23 February.
25 Charge 1 on the indictment is a rolled-up charge of contravening the intervention order covering 14 and 23 February.
26 Returning to the events of 23 February, once you had gone, the complainant ran to a neighbour’s house to get help. Her eyes were so swollen she could not see and she used her fingers to pry open one of her eyes. The neighbours noted that in their words she was hysterical and appeared to be totally horrified.
27 By this time, her ordeal had continued for more than 24 hours and her injuries had remained untreated. The neighbours called the police and an ambulance took her to hospital.
28 Her injuries included a fractured rib, a fractured and displaced mandible which required surgery, nasal bone fractures and extensive facial swelling with a left parietal scalp haematoma.
29 Further injuries were noted upon examination the following day, including facial bruising and swelling, multiple dental injuries, bruising to the chest, arms and back and incised wounds to the fingers and thigh.
30 The doctor noted that significant force would have been used to cause the fractures and that there was potential for severe head injury or death.
31 The complainant provided a victim impact statement in which she described a long road to recovery involving four bouts of surgery and continuing monthly check-ups in hospital.
32 She suffers from worsening depression as a result of the attacks and has trouble sleeping, with anxiety and stress.
33 She feels she does not function properly and is trying to focus on attending appointments and having counselling in the hope that she might recover enough to be able to have her children, who are in care, returned to her.
34 She fears that, in her words, she may never be the same again.
35 You were arrested on 24 February when you were found hiding in a wardrobe in a house. You were interviewed, during which you admitted the assaults but denied the rapes. You said you were not aware of the existence of the intervention order.
36 You said you felt bad when you saw how the complainant was after the assaults, which you seemed to think amounted to only a scuffle and you said you thought the sex was consensual because she was your partner.
37 The nature of your offending on these two occasions places these offences at a very high level of seriousness. The crime of rape carries a maximum prison term of 25 years. For recklessly causing serious injury, the maximum penalty is 15 years imprisonment. For false imprisonment and intentionally causing injury, 10 years. For recklessly causing injury and contravening a family violence order,: five years, and for the summary offences, three months or a fine of 30 penalty units, or both.
38 You were remanded in custody and have remained there for 278 days. That period of pre-sentence detention is reckoned as already served and I shall cause that to be noted on the court record.
39 You were also in custody for 33 days from 3 January until 5 February in relation to other matters and I take that into account only in terms of totality and I shall return to that matter later in these sentencing remarks.
40 Your personal background is somewhat complex and is marked by generational alcohol abuse and childhood neglect. You are an Indigenous man now aged 36 and you were born and raised in the Warrnambool area but you have spent time living in the Lake Tyers district as well.
41 Your parents were both alcoholics during your early childhood and you were subjected to violence in the household and poor parenting.
42 Both parents tackled their addiction successfully and became employed but your father continued to use violence on you.
43 In addition, he was gaoled frequently and so the family moved house often. You left school unable to read and write after only a few months of secondary schooling and you are ashamed of this but have overcompensated with the bravado that accompanies heavy drinking. Your peer group was one that was acculturated to imprisonment, meaning a prison term was something to which they, and you, aspired.
44 You have been drinking alcohol, stolen by you and your peers, since you were 13, drinking every few days since the age of 16, and more regularly since you were 18.
45 You have been intoxicated most days since then until your incarceration, drinking very large amounts particularly in recent years.
46 At age 14 you began aerosol can inhalation and continued for five years. You experimented with cannabis at the age of 13, using it daily from the age of 17 and ever since. In your late 20s, you began injecting amphetamines including Ice at the rate of a gram a day.
47 You have had no employment other than short-term gardening work with your father, and you have been receiving a disability support pension since you were 17. You have been assessed twice by neuropsychologists in recent years and I can deduce from their reports that while your cognitive ability is impaired, as are other aspects of your functioning, and you are suffering from depression, you are capable of responding to rehabilitative measures designed appropriately.
48 I will set out your criminal history in some detail as it reveals childhood offending that saw you being quickly elevated through the hierarchy of sentencing dispositions and receiving both juvenile and adult custodial sentences at an early age.
49 When I first examined your criminal history, the record dated from December 1994 when at age 16 you were sentenced to 4 months in a youth training centre for burglary and criminal damage, a sentence which, on the face of it, appeared harsh for a first offence by a juvenile.
50 The record indicates this was an order of the Magistrates’ Court at Warrnambool, but this must be an error as you were within the Children’s Court jurisdiction at that time. I asked for the record of any preceding Children’s Court history which might have clarified the error and also to provide some context for your later offending and dispositions.
51 The discrepancy was not able to be clarified but, in any event, the record shows that you first appeared in court at age 15 for two charges of burglary and theft, amongst others, and you were placed on a youth supervision order for six months.
52 You continued to offend in similar ways and a youth attendance order was imposed after a successful appeal against a custodial order. Once you faced the adult jurisdiction at age 17, you were placed on various community orders followed by your first experience of adult prison at the age of 20.
53 It seems you were given high-end sentences at an early age but with the court recognising the need for treatment. I do not have much information as to the seriousness of the charges you committed before you turned 22 but on the face of it they appear to be consistent with offences committed by a young person leading a lifestyle lacking in guidance and influenced by alcohol and drug abuse. Early efforts to steer you away from offending and a destructive lifestyle by means of available treatment opportunities were not successful.
54 By the age of 22 your offending escalated in seriousness and you were dealt with for making a threat to kill and recklessly causing serious injury. Once again you were placed on an intensive corrections order with treatment for alcohol abuse which not surprisingly, given the difficulty which those orders entail, you breached and served the balance of 167 days in custody.
55 You went on to commit further dishonesty as well as traffic offences and a charge of recklessly causing serious injury, attracting a suspended prison sentence and an order that you attend a residential alcohol and drug treatment program. You were then aged 25 and it appears to have been the first realistic attempt at rehabilitation ordered by the courts. The others had all depended on your attendance as an outpatient.
56 You breached that suspended sentence and six months imprisonment was restored. The following year you were fined for breach of an intervention order and a year later you were sentenced to a six-month intensive corrections order for a further breach of an intervention order and assault and related charges. You breached the ICO but you were given another chance and it appears you then completed it successfully.
57 There followed a three-month suspended sentence for offences including theft and drink-driving, and you breached that but no further order was made. You did not appear in court for nearly three years when in 2011 you were dealt with for assault and street offences for which you were placed on a community-based order with treatment conditions.
58 In 2012, you were again placed on a community corrections order with treatment conditions for attempting to commit an indictable offence and other charges and soon afterwards you breached this by further offending consistent with alcohol related street offences. You were placed on a further community corrections order.
59 The history you gave to the psychologists who have assessed you was that you have experienced residential treatment a number of times but none were successful.
60 It is a long criminal history without a happy ending, including many attempts at rehabilitation but I note that there was no sexual offending. The offending was matched with a history of failed personal relationships. By age 22 you were the father of two children but you continued drinking using drugs and offending. When you were sent to prison, your partner left with the children and you have not seen them since. You have no idea where they are.
61 You resorted to heavy drinking again and then met the complainant and you had four children together. Her family came from Lake Tyers and you lived in that area moving from one house to another 12 times. Unable to rent again in the broad area of East Gippsland, you and your family came to Melbourne where you were isolated and without support. With alcohol a problem again, the Department of Human Services placed the children with their maternal grandparents at Lake Tyers. You and the complainant drove there once a fortnight to visit and you last saw them at Christmas just before your arrest.
62 In custody, you have been able to speak to them occasionally on the phone and you fear losing contact with them when they learn what you did to their mother.
63 Part of your remorse concerns these children. You regard them as your best achievement and you understand that you have placed at risk their attachment to you. You realise that you have repeated history by doing to the complainant what your father did to your mother. You are deeply ashamed and suffer from depression with nightmares and flashbacks of what you did.
64 Remorse is an important mitigating factor because it indicates better chances for rehabilitation. The fact that you pleaded guilty at an early stage is also an indication of remorse and, importantly, it avoided the need for a trial and for the complainant to have to give evidence. It is of assistance in expediting the criminal justice system and saves expense and inconvenience. For those reasons you are entitled to a discount on your sentence.
65 Your explanation for the offending is that you were intoxicated and you had heard allegations that the complainant had been unfaithful to you. Your counsel submitted that your intoxication, rather than being an aggravating factor, should be understood in the context of your background of childhood exposure to alcohol abuse and violence. The High Court decided in Bugmy v R[2] that the consequences of profound deprivation do not diminish over time and should be given full weight in the determination of the appropriate sentence in each case.
[2] [2013] HCA 37
66 By the time you began offending and appearing before the courts, all efforts at your rehabilitation were fraught with the risk and, indeed, the reality of failure, and none of them proved adequate. Your situation is better described in your counsel’s words as the result of family and community failure, and rather than being condemned for that you are entitled to have those circumstances taken into account as a mitigating factor to some extent. Your intoxication at the time of the offending is to be considered in the context of your background and the opinion of the psychologist, Mr Gault, is that your condition affected your ability to properly consider the wrongfulness of your behaviour.
67 You are facing a long prison term and are now in protection owing to the nature of your crime. You have no visitors and have lost contact with your immediate family and others in your Indigenous community.
68 At the moment you have no home to go to when you are released. Your time in prison is therefore more difficult than it might be for others who have greater support and are not in protection and I take that into account. You spend your days working and you enjoy your prison job. You attend programs designed to deal with your problems and you are involved in a Koori art program.
69 With no other experience of employment and many years dependent on a pension, the risk of institutionalisation is perhaps greater for you than it might be for others. I take this into account in determining the length of your sentence as well as the need to avoid the sentence being a crushing one.
70 That said, the requirement for general deterrence is of great significance in this case and others like it. Violence perpetrated upon women by their partners is a serious evil in society and is unfortunately very prevalent. The Court of Appeal has recently described domestic violence as having very serious consequences for victims and stated that general deterrence is of fundamental importance in such cases.
71 The complainant suffered great pain and fear in her own home in circumstances where you were the subject of an intervention order taken out by her and where you acted in a frenzied determination to punish her by means of physical and sexual aggression for rumoured infidelity which she denied. In this way, you exercised power and domination over her.
72 In an effort to deter others, the sentence imposed must be a stern one, although it must be tempered by the mitigating factors to which I have referred, as well as by the principle of totality and proportionality to avoid the sentence being a crushing one. The sentence must also serve to deter you from further offending, subject to the same mitigation and with a parole period long enough for your rehabilitation to be addressed appropriately in the community.
73 The charges of rape are the most serious charges on the indictment and a maximum penalty of 25 years imprisonment applies. You told the police that having sex with the complainant on this night was “make-up sex” which would regularly occur after you had argued and you thought her consent was not needed. I have already indicated that there are aggravating factors including the use of force which increase the seriousness of these charges.
74 Although alcohol may be regarded as an aggravating factor when an offender’s prior history includes, as does yours, convictions for serious offences committed under its influence, in your case it is a mitigating factor because of your highly dysfunctional background and the role played by alcohol abuse.
75 Would you stand now, please, Mr Ferguson.
76 I sentence you to the following terms of imprisonment.
77 For Charge 1: contravening the family violence order, 2 years.
78 For Charge 2: intentionally causing injury, 2 years.
79 For Charge 3: recklessly causing serious injury, 5 years.
80 For Charge 4: the representative charge of rape, 5 years.
81 For Charge 5: false imprisonment, 12 months.
82 For Charge 6: recklessly causing injury, 12 months.
83 For Charge 7: rape, 5 years.
84 For each of the summary charges of committing an indictable offence whilst on bail: 3 months.
85 Charge 2 was committed on 14 February and it follows that the first of the summary charges is referrable to that date as well as Charge 1, contravention of the family violence order.
86 All the other charges were committed on 23 February. I will order some accumulation to reflect that the offending occurred on two occasions and that multiple serious offending over a long period of time occurred on the second occasion.
87 The base sentence for the purposes of accumulation will be the sentence for Charge 4 which is the representative charge of rape covering two occasions when you forced the complainant to perform oral sex.
88 I have imposed the same sentence for Charge 7, the second charge of rape, the instance of penile penetration of the complainant’s vagina, with the aggravation factors that she was either asleep or unconscious and you used no protection.
89 I order that two years of the sentence for Charge 3, one year of the sentence for Charge 7, three months of each of the sentences for Charges 1 and 6, and six months of the sentence for Charge 2, be served in accumulation upon the base sentence.
90 This results in a total effective sentence of 9 years. I order that you serve 6 years before being eligible for parole.
91 If you had pleaded not guilty to these charges I would have sentenced you to 11 years with a non-parole period of 8 years.
92 You have been in custody for these charges since 24 February 2014, a period of 278 days by my calculation of pre-sentence detention.
93 I declare those days as being already served and, as I said before, I shall cause that to be noted on the court record.
94 The prosecution seeks an order for the disposal of clothing and other items to which there is no objection and I make that order.
95 Are there any other matters?
96 MS TITTENSOR: No, Your Honour.
97 MS DIPIENTRANTONIO: Your Honour, just in terms of the sentence, I do not have a note of a reference to Charge 5 and the assumption is that is totally the sentence on – sorry, Charge 5, 12 months.
98 HER HONOUR: Yes, to be served concurrently.
99 MS DIPIENTRANTONIO: Concurrently, that is what I thought.
100 HER HONOUR: Yes, yes.
101 MS DIPIENTRANTONIO: Thank you, Your Honour.
102 HER HONOUR: Anything that isn’t accumulative will be concurrent.
103 MS DIPIENTRANTONIO: Yes, thank you.
104 HER HONOUR: Now, if any of the parties would like a copy of this sentence, it is available or it will be shortly.
105 MS DIPIENTRANTONIO: Thank you, Your Honour.
106 MS TITTENSOR: Thank you, Your Honour.
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