Director of Public Prosecutions v Ferguson, Adam
[2013] VCC 52
•30 January 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-12-01041
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM FERGUSON |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 30 January 2013 | |
CASE MAY BE CITED AS: | DPP v Ferguson, Adam | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 52 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms J. Warren | Office of Public Prosecutions |
| For the Accused | Mr B.G. Walmsley |
HER HONOUR:
1 Adam Ferguson, you have pleaded guilty to five charges of sexual penetration with a child under the age of 16 years. Those are Charges 1-5 on the Indictment. You have also pleaded guilty to one uplifted summary charge of failing to answer bail. That is Summary Charge 1. The maximum penalty, in relation to sexual penetration, is 10 years' imprisonment. The maximum penalty for failing to answer bail is 12 months' imprisonment.
2 The prosecutor sought an order for the retention of a forensic sample taken from you. The making of that order was not opposed.
3 The circumstances of your offending are set out in the summary of prosecution opening, which was tendered as Exhibit A. In brief, the circumstances are as follows: You met the victim, a 14 year old girl, at Flinders Street Railway Station on 3 April 2011. You told her you were 29.
4 After talking for some time you both went to a cleaner's closet at the station. She had told you she was 16. You then had anal intercourse with her consent. She then said she was 14. You said that you did not mind. You then both consumed some alcohol and cannabis.
5 At some stage, on 3 or 4 April, you both went to a McDonalds Restaurant. You led the victim into a cubicle in the female toilets. You grabbed her by the throat, turned her around and penetrated her anus with your penis. This is the subject matter of Charge 1. You did not use a condom and you ejaculated.
6 The circumstances of Charge 2 are as follows: You both went back to your address in Elwood. You both consumed more cannabis. You then had penis-vagina intercourse. The victim spent the night at your place.
7
On 4 April 2011, you went to the victim's home. You told her mother initially that you were 16 years old. The victim went back to your place with you, despite her mother warning her not to. She stayed with you from 5 April to
9 April.
8 Charge 3 arises from the following circumstances: During that time, you had anal intercourse, the victim said she was sore. You grabbed her underwear and pulled it to one side before penetrating her anus. You did not use a condom and you ejaculated.
9 The victim performed oral sex with you on two occasions. Those occasions are the subject matter of Charges 4 and 5.
10 On 9 April, you became angry with the victim and told her she was lazy sexually because she could not give you "proper head" because of her "stupid braces". The victim then went home to her mother and complained to her about what had happened. The victim then went to the police.
11 You were charged on 9 April 2011. You were bailed on 1 July 2011. You failed to appear in answer to your bail at a committal mention at the Melbourne Magistrates' Court on 15 July 2012. That is the subject matter of Summary Charge 1.
12 You were apprehended in Queensland in March 2012. You have spent 350 days by way of pre-sentence detention up to and including 29 January 2013.
13 The victim has not provided a victim impact statement.
14 I have taken into account in sentencing you, your personal circumstances. I have derived at those circumstances from what counsel said on your behalf and the contents of a report from Dr Lester Walton dated 9 July 2012, tendered on your behalf as Exhibit 1, and the contents of a Forensicare report ordered by me. The Forensicare report was authored by Dr James Belshaw and that was dated 18 January 2013 and tendered as Exhibit B.
15 You were born in Melbourne. Your family moved to Western Australia when you were about a year old. Your parents separated when you were seven or eight years old.
16 Your mother had problems with alcohol and was physically violent towards you until you were about 12. At that time you saw your father only occasionally.
17 You had trouble at secondary school. You were suspended on occasions for being aggressive. You were not good at academic work but completed Year 12. You then went to work with your father who had returned to live in Perth.
18 When you were 18, you went to United States of America and worked in restaurants and in construction. You came back to Australia after a short time. You then returned to the US and were there from when you were 20 years old to when you were 24 years old. You worked intermittently but you were mostly supported by your father.
19 When you were 27 years old you moved to Melbourne to be closer to your father. Sadly, your father recently passed away. It is evident from the Forensicare report that your father had attempted to assist you on numbers of occasions.
20 Shortly after your return to Melbourne in January 2009, you were admitted to the psychiatric unit at the Alfred Hospital. You were suffering from hallucinations. You were diagnosed with schizophrenia.
21 Whilst you have been in custody you have spent some weeks in the Thomas Embling Hospital. You discontinued your injected medication but continued with your oral antipsychotic medication. That medication appears to have stabilised your mental health condition considerably.
22 You have admitted a prior criminal history. Your prior criminal history from Western Australia principally includes drug offences and one violence matter. There have subsequently been some court matters in New South Wales. They include drug and driving offences. It is significant that you have no prior sexual offences.
23 Dr Walton, in his report, said that his opinions were somewhat tentative due to his inability to read documentation about your recent admissions. He said that there was a probable diagnosis of paranoid schizophrenia. He said your cannabis and amphetamine use may have aggravated that condition.
24 Dr Walton was of the opinion that you are not a paedophile. He said at the time of your offending you may have had auditory hallucinations but that he was not convinced that psychotic phenomenon was severe enough to deprive you of your capacity to distinguish right from wrong.
25 Dr Walton suggested that your illness might be relevant in the sense of eroding your capacity to consistently exercise proper social judgment. He said it might also be relevant to your failure to "make a comprehensive expression of remorse". He said you required ongoing psychiatric treatment.
26 As a result of what Dr Walton said in his report and counsel's submissions, I ordered a report from Forensicare, to which I have previously referred. In that report, the author sets out various material in relation to your admissions to the Alfred Hospital and subsequent admissions and treatment. The author's opinions are largely based on the material that was included in files provided to him as you did not answer certain questions in relation to your history and said you could not remember details.
27 Dr Belshaw says that you told him that you knew the victim was 14 but that she had engaged willingly in sexual activities with you. You emphasised that you had given the victim's mother your keys, details and passport. You said that the voices in your head had said that it was okay. You expressed feelings of injustice.
28 Dr Belshaw says that you have an established diagnosis of schizophrenia. He says that is complicated by your polysubstance abuse. He said you gave varying accounts of the nature, quality and severity of your symptoms and said that currently your systems are well controlled.
29 In his report at Paragraphs 10.8-10.11, Dr Belshaw said that you may have been suffering a relapse of your schizophrenia at the time of your offending secondary to non-compliance, as I understand it, with taking your medication and abuse of illicit substances.
30 He says:
"10.9 I am unable to find any compelling evidence of psychotic determinance of the alleged offence, the delusions (of surveillance) and the auditory hallucinations he told me he experienced at the material time would not, in my view, directly contribute to the offending behaviours.
10.10 On balance, I do not find that Mr Ferguson's mental illness would have significantly affected his judgment, his ability to refrain from impulsive action or his capacity to appreciate the wrongfulness of his actions as relevant to his current charge."
31 It is Dr Belshaw's opinion that whilst you are treated on antipsychotic medication, imprisonment would not weigh significantly more heavily on you than on other prisoners who do not have a mental illness. He goes on to say that you will continue to be monitored by prison mental health authorities whilst you are in custody.
32 In sentencing submissions your counsel relied in mitigation on a number of matters which he said constituted unusual circumstances. He addressed the circumstances of your meeting the victim, going back to her home, the discussions with her mother, including giving her your keys and passport. He referred to the mother's comments as to your youthful looks and the victim's preparedness to engage in sexual activity. He also referred to your difficulties with your schizophrenia.
33 Your counsel also relied on your plea of guilty which he submitted had avoided the trauma of a trial for the victim and her mother and was an expression of your contrition and remorse.
34 Your counsel relied on the application of the principles in the R v Verdins (2007) 16 VR 269 and R v Tsiaras (2007) 1 VR 398. Your counsel argued that the application of these principles might result in a conclusion that your moral culpability was potentially reduced. In later submissions, your counsel placed only small reliance on that matter.
35 Your counsel also submitted that imprisonment would have an adverse affect on your mental health and ultimately that you would find imprisonment more difficult because of your mental health condition.
36 Your counsel submitted that the appropriate sentence would include very little, if any, additional actual imprisonment.
37 The prosecutor submitted that your offending had very serious aspects. The prosecutor referred to the purpose of the legislation in the protection of children. The prosecutor conceded that the principles in Verdins would have some application in your circumstances. The prosecutor submitted that a head sentence of between four and five years, with a non-parole period of between two and two and a half years, would be appropriate. The prosecutor also said that the prosecution was not seeking a disproportionate sentence for the purposes of community protection if you were sentenced to imprisonment on Charges 1 and 2.
38 In further submissions, the prosecutor said that a shorter non-parole period than otherwise, might be appropriate to support your rehabilitation which would be in the interests of the community.
39 In relation to the sexual penetration charges, your offending is clearly serious. You were an adult considerably older than the victim who was 14. You knew she was 14 after the first act of intercourse and you continued a sexual relationship with her over some days.
40 The purpose of this legislation which makes it illegal for an adult to have sexual penetration with a child under the age of 16 is set out in the case of Clarkson v R [2011] VSCA 157. In that case, both the purpose of the legislation and reason behind that purpose are set out by the Court of Appeal. At Paragraph 3 the Court of Appeal says:
"The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent."
41 At Paragraph 26 the court said:
"In its statutory context, the absolute prohibition on sexual activity with a child can be seen as having twin purposes. The first is to protect children from the harms caused by premature sexual activity and – to that end – to protect them from their own immaturity.
Secondly – and in order to advance the protective purpose – the prohibition is designed to deter those who might contemplate sexual activity with a person under 16."
42 It is clear that these provisions are intended to protect children from older people and from their own inclinations towards engaging in sexual activity when they are too young to properly do so. Parliament, on behalf of the community, has made it clear that young people under the age of 16 are too young to be able to agree to have sex. The victim in this matter was not legally able to consent and you knew that.
43 I have taken the circumstances of her giving her consent into account. There is an absence of aggravating features in relation to that although I do note that you, on occasion, went ahead with having sex with her after she had had cannabis and alcohol which may have affected her ability to make a proper decision.
44 You were the adult. You were the one who should have stopped as soon as you knew she was 14. She did consent and that is the reason that you are not charged with rape. The effect of sexual penetration of a child under 16 is serious. You took advantage of her willingness in order to satisfy your own sexual wishes.
45 I have no information as to any specific or longstanding harm that may be caused to this victim but the presumption that it is harmful for children under this age to have sex before they are ready to properly consent or understand their situation is harmful so that presumption applies.
46 There was a considerable age difference between you and her. You knew her mother disapproved but you continued. I accept that you made some attempt to reassure the mother by giving her your passport and keys.
47 On two occasions you did not use a condom. On those occasions you were having anal intercourse with the victim. On the material that I have before me, I am not able to say that that was an aggravating feature as it may have been if you had been having vaginal intercourse without a condom, providing a risk of pregnancy or transmission of disease.
48 On occasion you were somewhat rough and rude to the victim but I am not regarding that as an aggravating matter for the purposes of sentence.
49 In my view, the unusual circumstances relied upon by your counsel, except to the extent which they reflect your mental health situation, are not relevant to sentence except as to the absence of aggravating features. In my view they do not in themselves operate in mitigation of sentence.
50 I do take the following matters into account in mitigation of sentence:
(a) You have no prior history of sexual offending;
(b) You entered your plea of guilty and have persisted, as I understand, with an intention to plead guilty to these charges;
(c) You are entitled to a significant discount for that plea of guilty;
(d) You have saved the victim and her mother the trauma of a trial; and
(e) You have saved the expense and inconvenience of a trial.
51 In my view, that plea of guilty is principally an acceptance of your legal responsibility and only evidences very limited remorse given what you have otherwise said.
52 Having taken into account the contents of the reports; submissions by your counsel; your history; and your behaviour as reflected in the material, I do not consider that your mental health situation gives rise to any reduction in your moral culpability. What you did was wrong and you knew it was wrong.
53 In application of Verdins principles, I consider that there ought to be some small reduction in your sentence to take into account that your time in gaol may be somewhat more onerous due to your need to comply with medical monitoring.
54 The prosecutor submitted that there might also be some moderation in sentence given that you may be a less appropriate vehicle for general deterrence than someone without your mental health status.
55 Given the importance that general deterrence must have in your sentence, I consider your sentence should only be reduced to a very small extent for that reason.
56 I have considered your prospects of rehabilitation and the risk of you further offending. I take into account what you told Dr Belshaw in relation to your feelings of innocence and injustice and your views that your illness and self-medication with illicit substances played some part in your offending. It is my view that you have only limited remorse and insight into your offending. My view is that you constitute a moderate risk of re-offending and have low prospects of rehabilitation. Your rehabilitation would clearly be enhanced by you continuing with your recommended treatment and counselling as recommended in the reports.
57 A sentence of imprisonment is warranted in relation to each of Charges 1-5. That sentence is warranted for the purposes of denunciation given the seriousness of your offending and just punishment. A sentence ought to be imposed which has some effect in terms of deterring others from engaging in similar offending.
58 I also consider that it is important to impose a sentence which deters you from further similar offending. Whatever your views are on the matter, it is important that a sentence of imprisonment be imposed which means that you understand that in future you should not have sex with girls under 16 no matter how willing they are. If you do that again, then clearly you will end up in gaol for an even longer period of time. It is to be hoped that that will stop you from any further offending such as this in future.
59 I have taken the matters in mitigation into account in setting the head sentence and non-parole period. In relation to the non-parole period I agree that it is appropriate to provide for a reasonable potential period of parole for the purposes of re-introduction into the community and rehabilitation. In my view, an appropriate non-parole period is somewhat longer than that contended for by either prosecution or defence given the nature of your offending, your degree of moral culpability, the limited mitigating effect of your schizophrenia and the sentencing considerations of punishment, denunciation, general deterrence and specific deterrence.
60 Could you stand up please, Mr Ferguson.
In relation to Charge 1; you are convicted and sentence to three years' imprisonment;
In relation to Charge 2; you are convicted and sentenced to three years' imprisonment;
In relation to Charge 3; you are convicted and sentenced to three years' imprisonment;
In relation to Charge 4; you are convicted and sentenced to two years and six months' imprisonment;
In relation to Charge 5; you are convicted and sentence to two years and six months' imprisonment; and
In relation to Summary Charge 1; you are convicted and sentenced to 14 days' imprisonment.
61 In respect of Charges 3, 4 and 5 you are sentenced as a serious sexual offender. The sentence on Charge 1 is the base sentence.
62 Three months of each of the sentences on Charges 2, 3, 4 and 5 are to be served cumulatively on each other and on the sentence on Charge 1. In setting the periods of cumulation, I have taken into account the principles of totality and proportionality.
63 The total effective sentence is a term of imprisonment of four years.
64 I fix two years and four months as the period that you are required to serve before you are eligible for release on parole. I declare that you have served 350 days by way of pre-sentence detention.
65 Due to the time periods in which the offences occurred, Charges 1 and 2 are to be regarded as a single Class 1 offence for the purposes of the Sex Offender Registration Act 2004. Similarly, Charges 3, 4 and 5 are regarded as a single Class 1 offence. Are you are convicted of two Class 1 offences you are required to comply with the reporting requirements of that legislation for the rest of your life. In a moment you will be given information about your obligations and I will be asking you to sign a form acknowledging that you have received that information.
66 I grant the order for the retention of the forensic sample taken from you pursuant to s.464ZF of the Crimes Act 1958. I consider it appropriate in the circumstances, given the circumstances and seriousness of your offending and that the making of the order is not opposed.
67 But for your plea of guilty I would have sentenced you to a term of imprisonment of six years with a non-parole period of four years.
68 Could you please take your seat, Mr Ferguson.
69 Now, if counsel could both give a moment's though to that and just see if there's anything wrong with the adding up and if there's any other technical matter that I need to address. I will just sign this form. Mr Walmsley, would you mind going with Ms Hutchinson to give Mr Ferguson - just to sign the form acknowledging that he's received it.
70 MR WALMSLEY: The receipt of it.
71 HER HONOUR: Yes. He's not saying he agrees with it or anything else, he's just saying "I've received the information".
72 MR WALMSLEY: Certainly, Your Honour.
73 HER HONOUR: It is part of that information as no doubt you'll explain to him that in terms of the reporting conditions, after 15 years he can make an application to have the reporting condition ended but I'll leave that to you to speak to him about.
74 MR WALMSLEY: Yes. Just on the arithmetic, Your Honour indicated that the aggregate is four years.
75 HER HONOUR: Yes.
76 MR WALMSLEY: That would appear to indicate an inclusion of the 14 days on the summary charge.
77 HER HONOUR: Yes, as concurrent, yes.
78 MR WALMSLEY: And I'm not sure that I heard Your Honour say that but Your Honour might have.
79 HER HONOUR: I didn't say it but the legislation would operate that way and it will come out in the order.
80 MR WALMSLEY: If it weren't said, yes.
81 HER HONOUR: Yes, so the sentence on Summary Charge 1 is to be served concurrently.
82 MR WALMSLEY: Thank you, Your Honour.
83 HER HONOUR: Thank you. Mr Walmsley and Ms Warren, anything you can see of a technical nature that I didn't deal with?
84 MS WARREN: Not technically, Your Honour. It's borderline nitpicking so I apologise for that, but the Dr Belshaw's report noted that that was dated the 21st. It's actually dated the 18th.
85 HER HONOUR: I apologise.
86 MS WARREN: He put on there that it was due on the 21st.
87 HER HONOUR: Yes, that's right. I will change that.
88 MS WARREN: Thank you, Your Honour.
89 HER HONOUR: I actually had it written down correctly but looked at the wrong piece of paper. I apologise. Thank you for picking that up. All right, otherwise we've covered all the legislative requirements are far as you can see?
90 MS WARREN: Yes, Your Honour.
91 HER HONOUR: Thank you very much both of you for your assistance and for coming back today at 2.15.
92 MR WALMSLEY: May it please, Your Honour.
93 HER HONOUR: Yes, thank you.
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