Director of Public Prosecutions v Fergusson

[2020] VCC 1565

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00015

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM FERGUSSON

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September 2020
DATE OF SENTENCE:	29 September 2020
CASE MAY BE CITED AS:	DPP v Fergusson
MEDIUM NEUTRAL CITATION:	[2020] VCC 1565

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:Nguyen v The Queen [2016] VSCA 198; Ryan v R (2001) 206 CLR 267; Pham [2017] VCC 1858; Nguyen [2017] VCC 323; Bennett [2017] VCC 653; Nguyen [2017] VCC 667; DPP v Al Jinavo [2018] VCC 1654; DPP v Luu [2018] VCC 1592

Sentence:4 years 6 months imprisonment; 2 years 10 months non-parole period; s 6AAA of 6 years with non-parole period of 4 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Guesdon	Office of Public Prosecutions
For the Accused	Mr P. Bloemen	Sarah Pratt & Associates

HIS HONOUR:

1Adam Fergusson, you have pleaded guilty to one charge of cultivation of not less than a commercial quantity of cannabis.  The maximum penalty for this offence is 25 years' imprisonment.

2You have also pleaded guilty to the theft of electricity.  The maximum penalty for this offence is 10 years' imprisonment.

3Your co-offender Angela Strachan pleaded guilty to the same charges on the same day as you.  As you are aware, I have ordered a presentence report in relation to Ms Strachan.  The report will not be ready until early November.  Both the prosecutor and your counsel agreed that it was appropriate to sentence you separately and I intend to do so now.

4The offence of cultivation of a commercial quantity of a drug dependence is a category two offence.  As such, the court must sentence you to a term of imprisonment which does not include a combination sentence with a CCO unless certain circumstances are established.  I will return to these principles later in my sentencing remarks.

5You have a limited prior criminal history.  I do not consider it particularly relevant to this offending although I make some further remarks about that later too.

6The prosecution tendered prosecution summary on plea as Exhibit A.  A brief summary of your offending is as follows.

7You and Ms Strachan rented a property together in Browallia Drive, Corio from about the end of August 2018.  You were both living there at the time of your offending.

8Police executed a search warrant at the property on 30 May 2019.  You were both present.  In the garage and three rooms of the house police found 66 cannabis plants. Thirty-five plants were either cuttings or immature plants with a total weight of just over 600 g. Thirty-one plants distributed between two rooms had a total combined weight of 109.45 kg.

9The plants were cultivated in a sophisticated hydroponic setup.  The plants grew under specially fitted and dedicated light, air and irrigation systems and timers.  Mature plants were supported by webbing to keep their branches from hanging down.  Police located a preparation room which contained chemicals, timers, typed notes for the hydroponic cycle, handwritten notes, and also notes on a whiteboard in relation to plant nutrition.

10The photographs in the depositions readily depict the sophistication of the growing rooms and the preparation room.  It is apparent that this set up required considerable electrical expertise, set up knowledge and financial input.  I can only conclude that you expected high returns.

11The electricity was supplied by an electrical bypass.  I was not provided with an estimated value of the stolen electricity.

12The indictment charges cultivation and theft on a single day, being 30 May 2019.

13You were arrested and participated in a record of interview.  You made comprehensive admissions to your offending.  You told police that you:

·had lived at the property for about eight months;

·did 99% of the internal structure changes at the house;

·were new to cultivation and undertook a lot of research;

·did it for greed, for revenue, to sell;

·estimated there were 63 plants, with around 15 each of the big ones that were two – three feet high and 12 weeks old;

·the smaller plants were to replace the big ones after harvest;

·the feeding was on timers;

·the cuttings came from someone you did not deal with directly;

·you grew a previous crop at the house which resulted in 15 mature plants, but the weight of the plant was not good.  You dropped the cannabis off and it was collected by another person.  You do not know who that person is, you communicate with them through text messages and you afterwards delete those messages;

·you stated you got about $10,000 from the previous crop which you used that to pay off debts and buy a microwave oven;

·this harvest had not yet been arranged;

·Angela’s role was “babysitter”;

·you installed much of the electrical work but the bypass was installed by another person when you were not there; and

·you understood that you were stealing electricity, indicating this stemmed from greed.  You knew that the set up would be noticeable.

14You were bailed after you were arrested but you have now spent eight days (excluding today) on remand by way of presentence detention, as you only went into custody on the date of the plea hearing on 21 September.  That period will be reckoned as already served and will come off your sentence.

15This matter was originally listed for a trial to commence on 25 May 2020.  On 23 July 2020 the matter came before me as an emergency case management hearing.  After discussions between the parties, you resolved your matter to a plea of guilty on 7 August 2020.

16I now turn to consider the objective seriousness of and your moral culpability for your offending.

17The seriousness of this offence is first marked by the maximum penalty of 25 years' imprisonment.  Moreover, the fact that Parliament has categorised this offence as a category two offence means that you face a period of imprisonment.  It was submitted by your counsel that you do not fall within any of the criteria that would exempt you from this punishment, and that you recognise that a term of imprisonment is inevitable.

18Further, this is a serious example of this type of offending. I note the following:

·first, the mature plants weighed over four times the threshold commercial quantity of 25 kg;

·second, the botanist, Brenker, estimated that this would yield a dry weight quantity for sale of approximately 21 kg; and

·third, the operation was, as I have already observed in detail, marked by technical sophistication and the electrical bypass.

19Your counsel submitted in a written outline of submissions dated 17 September 2020 that your role was “that of a renter who allowed his house to be used, for financial remuneration, to cultivate hydroponic setup of cannabis”.  Mr Bloemen further submitted that the answers you gave in the record of interview “were less than honest in many respects”.  It was submitted that you were told in no uncertain terms that if apprehended, mention of the names of others involved “would have serious repercussions” and that you were therefore “to take full responsibility for the setup”.

20It also appears to be suggested in the submissions that you offered to assist police.  The Crown rejects this assertion outright.

21There is no evidence to support any of these submissions, and particularly the conclusion that your role was confined to that of a renter who allowed your house to be used.  Apart from those answers in the record of interview which suggest the involvement of others (which I have already said is accepted by the Crown) there is no support in the material for the submission that your role should be seen differently (and lower) to the answers you gave to police.  Further, there is no support for the submission that the answers in your record of interview “were less than honest in many respects”.

22On the contrary, I conclude that your moral culpability for the offending is high:

·first, you told police that you had already grown a previous crop to harvest and sale.  I do not use that to doubly punish you for this, but it makes the circumstances of this offending more serious.  It is clear from your candour with the police that this was an entirely commercial operation, and you knew exactly what you are doing;

·second, I can only conclude your role was high.  Although the Crown concedes that there were unknown and unnamed others involved, it is apparent that you had responsibility and control over the growing of this crop; it was grown in your house for which you held the lease and you admitted modifying the house for the purpose of the operation;

·third, although there is some evidence of minor drug use, you are not an addict and you are not even a cannabis smoker.  Your involvement in the crop was therefore solely for financial gain;

·fourth, even with others involved, you expected to receive high financial rewards for your involvement; and

·finally, your role was higher than that of your partner Ms Strachan.  You told police the idea was yours and that you involved her in the operation.  Her role was primarily crop sitting.

23When I consider cases such as Nguyen [2016] VSCA 198 and its reference to clusters of cases, I can only conclude that you must be characterised as falling within the second cluster – that is, that you were either a principal or at least had a proprietary interest in the crop. You set up the operation with the assistance of others and no doubt those others maintained a significant financial interest in the operation. Even if that is the case, there is no basis upon which I can set aside your answers in the record of interview, and conclude that your role was limited to that of a “renter”.

24The courts have repeatedly stated that in cases involving the cultivation of a commercial quantity of narcotic plants, the sentencing principle of general deterrence is at the forefront of sentencing considerations.  To this should be added principles of denunciation, just punishment and a measure of protection of the community.  Your role and moral culpability emphasise the need for punishment in this case.

25I turn now to your personal circumstances.

26You were born on 12 October 1974 and you are 45 years of age.

27You grew up in Salisbury North, South Australia, with your parents and two brothers.  You were an active child, playing many sports and becoming highly involved in motocross racing.  You completed high school until the end of Year 11, at which point you left to compete in the racing industry.

28You met your ex-wife, Nikki, in 1997, and got married to her.  You had three children together (who are now aged between 16 and 21).

29Around 2002/2003 you were well known in the motorcycle racing sport.  You travelled across the US following the road racing circuit, bringing your wife and children along with you.  Whilst racing brought financial gain, it was described as ‘a sport of highs and lows’.

30In 2004 you held both the Australian championships in two classes of road bikes.  However, by 2006/2007 you retired from racing following a major accident whilst riding in Tasmania.  You suffered significant injuries including shattering your legs in 15 places, breaking your pelvis, ruining your hip socket, and breaking your ribs/collar bones.  You have continuing health issues due to accidents through your racing career, particularly with your hips and knees, and have been advised you will require a hip replacement.

31You separated from Nikki in 2007, at which point the children went to live with her.  You continued to see your children every second weekend and on school holidays and continued to pay child support.  You maintain a good relationship with your children to this day.

32Around this time (2007) it appears you also started drinking heavily, and briefly experimented with drugs.  However, I am told you have not used since your arrest on these matters, and you were frequently tested during your employment as a driver.

33You have had a steady and constant work history.  You had commenced a business with your father, ‘Fergusson Motorcycle Transport’, while you were racing and at its height it was a multimillion dollar turnover business.  Bad business decisions led to large losses for the company.  There were disagreements between you and your father which apparently still put pressure on your relationship with him to this day.

34After the motorcycle transport business folded, you worked as a motorcycle sales consultant, then as a manager in a business importing motorcycle accessories.  Since 2018 and until you were remanded into custody, you worked as a truck driver around metropolitan Melbourne.  The character reference from your employer speaks of your reliability, your work ethic and your contribution to his business.

35You commenced a relationship with Ms Strachan in 2008.  This relationship ended in 2019, becoming strained following your arrest in this matter.

36You maintain a good relationship with your mother and your siblings, who lived close to you.

37You have a prior matter from 2017 for obtain property by deception, for which you were placed on a CCO for nine months.  Fifteen months later, you were convicted of contravening that CCO.

38The explanation given by your counsel for your involvement in this offending was that at the time you decided to get involved in this cultivation, you were struggling financially.  It appears the same explanation was given for your prior offending.  It is all the more concerning for the fact that you were given the opportunity of a CCO on a prior occasion and you breached that order, then after resentencing your order ran until mid-May 2019.  So although you were charged with cultivation on a single day, that is 30 May 2019 (some two weeks after the CCO expired), the reality is that you were growing the crop during the currency of the CCO.

39I have read the references provided by your parents and your brother. It is apparent that you have full family support, from your father included.

40I have also read the medical report of Dr Wijeratne which outlines your health issues.  I acknowledge your newly diagnosed hip osteoarthritis and the need for possible surgery.  I note you are also medicated for hypertension.

41Mr Bloemen, on your behalf, submitted the following factors should mitigate the sentence I impose upon you:

·first, your plea of guilty, although made late, has utilitarian benefit.  The utilitarian benefit of the plea is increased in this time of this lockdown.  If the plea of not guilty had been maintained, then a trial could not have commenced.  In this way, the plea is a realistic and significant acknowledgement of guilt;

·second, the references provide some evidence of remorse;

·third, your reception into prison has been made more difficult by the fact that the Victorian prisons are in lockdown due to the COVID-19 pandemic;

·fourth, your health condition and stress will make time in prison difficult;

·fifth, you have limited prior convictions and were otherwise of good character before 2017/2018;

·sixth, you do not have any drug or alcohol issues which augers well for your prospect for rehabilitation.  In this respect, you have strong protective factors;

·seventh, in additional submissions filed on 24 September it was submitted the publicity surrounding your offending and imprisonment represent extra curial punishment and may impact future employment prospects; and

·finally, Mr Bloemen submitted the principles of proportionality, parsimony and totality should mitigate the sentence I impose upon you.

42Ms Guesdon, prosecuting, submitted:

·first, the Crown raises concerns about your prior criminal matter but otherwise submits your prospects for rehabilitation are relatively good;

·second, although it was not an early plea of guilty, the plea has utilitarian benefit and should mitigate the sentence I impose upon you;

·third, the type and gravity of the offending attracts strong denunciation and the need for general deterrence; and

·finally, you should be sentenced as a principal offender.

43I agree that your plea of guilty should mitigate this sentence I impose upon you.  I agree that this is all the more so for making a plea during this very difficult period of lockdown, when it would have been easy enough to maintain a plea of not guilty, knowing that the matter could not proceed.

44I also accept that as this is your first time in custody, that it will be made more difficult by the separation from your family caused by the current lockdown.  The difficulties caused by the lockdown manifest in a number of ways.  First, there has been a suspension of personal visits.  Second, your opportunity to work and occupy yourself meaningfully in prison has been reduced as personal work has been limited to essential tasks only.  The opportunity to do courses has been severely limited.  I appreciate that these factors will increase the stress of your time in custody.  I have taken these factors into account and they have had some effect in mitigating the sentence I will impose upon you.

45In the circumstances, I do not place any reliance on your counsel’s submission in respect to your previous good character.  I will not ignore the fact that this is your third time before court.

46Further, I do not place any real weight on the submission that the public opprobrium you have endured should mitigate your sentence.  In the case relied upon by Mr Bloemen, Ryan v R (2001) 206 CLR 267, Kirby J and Callinan J considered public opprobrium to be a factor which could operate to mitigate a sentence where, say, publicity caused a ‘fall from grace’. Their honours each considered this to be a form of extra curial punishment. Equally however, McHugh J and Hayne J did not consider it a relevant factor. As Hayne J said, it seems curious that serious offending should attract punishment whilst publicity about the offending and punishment should then attract leniency. In any event it is entirely unclear to me that you have suffered any true loss of reputation or loss of future employment prospects through the media coverage of your offending.

47I do consider that you have relatively good prospects for your rehabilitation.  It is troubling that on two occasions now, you have committed criminal offences as a way to see yourself clear of financial difficulties.  Moreover, as I have observed, you were clearly growing this commercial crop during the period of the community corrections order.

48There is some evidence (contained in the character references) which indicates you have insight into your offending and that you are mapping a clear path forward after your release from prison.  Although insight and remorse may not be entirely the same thing, the community will benefit from your plan to use your family, friends and employer’s support, and your resolve to refrain from any further criminal offending in the future.

49This is because when I look at your solid work history, the character references and the strong pro social network available to you, it seems to me that you should be in a firm position to reintegrate back into the community when your sentence is completed and you will be assisted by the structure of parole (if you are afforded the opportunity) in this task.

50I have read decisions of the Court of Appeal and also sentencing remarks in a number of cases for this type of offending.[1]  The Court of Appeal cases provide the principles by which I must structure sentence in this case.  The sentencing remarks of other judges of this court provide useful comparisons of the types of sentences imposed in similar types of offending and the reasons behind those sentences.  In the end I must not be unduly influenced by current sentencing practices.  They are one of a number of considerations which must be taken into account.  Furthermore, each case must be considered on its own merits.  That is, I must carefully consider the objective sentencing factors in this case and balance them to the extent the law allows with the matters personal to you.

[1] Nguyen [2016] VSCA 198; Pham [2017] VCC 1858 (sentence appeal dismissed); Nguyen [2017] VCC 323; Bennett [2017] VCC 653; Nguyen [2017] VCC 667; DPP v Al Jinavo [2018] VCC 1654; DPP v Luu [2018] VCC 1592.

51Mr Fergusson, I will turn to the sentence now.

52On the charge of cultivate a commercial quantity of cannabis, you are convicted and sentenced to a term of imprisonment of four years and seven months.

53On the charge of theft, you are convicted and sentenced to four months' imprisonment.  I order that two months of this sentence be served cumulatively on the sentence imposed on Charge 1.

54You are therefore sentenced to a total effective sentence of four years and nine months.

55I order that you serve a minimum term of two years and 10 months before you are eligible for parole.

56I have already declared that I reckon the period of eight days pre-sentence detention excluding today reckoned as already served.

57The 6AAA declaration is but for your plea of guilty, I would have imposed a sentenced of six years with four years to serve.

58Ms Guesdon, there is a disposal order to be made, I believe, is that right?

59MS GUESDON:  Yes.  It is for the bypass and white powder found.

60HIS HONOUR:  All right.  Mr Bloemen, you have got nothing to say to that?

61MR BLOEMEN:  No, Your Honour.

62HIS HONOUR:  No.  All right then. I will leave the courtroom now.

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