R v Ferguson
[2002] WASCA 92
•22 APRIL 2002
R -v- FERGUSON [2002] WASCA 92
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 92 | |
| COURT OF CRIMINAL APPEAL | 22/04/2002 | ||
| Case No: | CCA:113/2001 | 6 DECEMBER 2001 | |
| Coram: | MALCOLM CJ WALLWORK J WHITE AUJ | 6/12/01 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | No error by Judge Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | THE QUEEN SAM THOMAS FERGUSON |
Catchwords: | Criminal law Aggravated burglary and armed robbery Crown appeal against suspended sentences Quite exceptional circumstances Respondent assisted co-offender to invade premises Both armed Co-offender alleged victim owed him money Co-offender needed money to pay for headstone on daughter's grave Co-offender very distressed Respondent agreed to assist him Served 6 months in prison prior to sentence |
Legislation: | Nil |
Case References: | Dinsdale v The Queen [2000] HCA 54, unreported; 7 September 2000 Lowndes v The Queen (1999) 195 CLR 665 Brittain v The Queen [2001] WASCA 117 Cross v Cook [2001] WASCA 242 Goddard v The Queen (1999) 21 WAR 541 Hall v The Queen [1999] WASCA 225 Lowe v The Queen (1984) 154 CLR 606 Miles v R (1997) 17 WAR 518 R v GP (1997) 18 WAR 196 R v Liddington (1997) 18 WAR 394 R v Petersen [1984] WAR 329 R v Ward (1999) 109 A Crim R 159 R v Woodley & Ors, unreported; CCA SCt of WA; Library No 940708; 16 December 1994 Raylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998 Roffey v The Queen, unreported; CCA SCt of WA; Library No 940601; 2 November 1994 Veneziani v The Queen [2001] WASCA 246 Watson v The Queen [2000] WASCA 8 White v Taylor [2001] WASCA 350 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- FERGUSON [2002] WASCA 92 CORAM : MALCOLM CJ
- WALLWORK J
WHITE AUJ
- Appellant
AND
SAM THOMAS FERGUSON
Respondent
Catchwords:
Criminal law - Aggravated burglary and armed robbery - Crown appeal against suspended sentences - Quite exceptional circumstances - Respondent assisted co-offender to invade premises - Both armed - Co-offender alleged victim owed him money - Co-offender needed money to pay for headstone on daughter's grave - Co-offender very distressed - Respondent agreed to assist him - Served 6 months in prison prior to sentence
Legislation:
Nil
(Page 2)
Result:
No error by Judge
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr E Balodis
Respondent : In person
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : In person
Case(s) referred to in judgment(s):
Dinsdale v The Queen [2000] HCA 54, unreported; 7 September 2000
Lowndes v The Queen (1999) 195 CLR 665
Case(s) also cited:
Brittain v The Queen [2001] WASCA 117
Cross v Cook [2001] WASCA 242
Goddard v The Queen (1999) 21 WAR 541
Hall v The Queen [1999] WASCA 225
Lowe v The Queen (1984) 154 CLR 606
Miles v R (1997) 17 WAR 518
R v GP (1997) 18 WAR 196
R v Liddington (1997) 18 WAR 394
R v Petersen [1984] WAR 329
R v Ward (1999) 109 A Crim R 159
R v Woodley & Ors, unreported; CCA SCt of WA; Library No 940708; 16 December 1994
(Page 3)
Raylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
Roffey v The Queen, unreported; CCA SCt of WA; Library No 940601; 2 November 1994
Veneziani v The Queen [2001] WASCA 246
Watson v The Queen [2000] WASCA 8
White v Taylor [2001] WASCA 350
(Page 4)
1 MALCOLM CJ: This was a Crown appeal against sentence. The relevant facts are fully set out in the reasons for judgment to be published by Wallwork J. At the conclusion of the argument on 6 December 2001 the Court ordered that the appeal be dismissed. It was then indicated that the reasons for judgment would be published later. The reasons to be published by Wallwork J, with which I am in entire agreement, sufficiently state my own reasons for joining in the order dismissing the appeal.
2 WALLWORK J: At the conclusion of the hearing of this appeal the Court was unanimously of the opinion that the appeal should be dismissed. An order was made to that effect. I now publish my reasons for acceding to that order.
3 The appeal was a Crown appeal against two terms of suspended imprisonment which were imposed upon the respondent in the Supreme Court at Perth on the 19 July 2001. The offences concerned were an aggravated burglary and an armed robbery in company which were committed at the same time. The facts were most unusual as will appear later in these reasons.
4 The Crown also contended on the appeal that the learned Judge should not have ordered the continuation of an earlier term of suspended imprisonment in respect of some summary offences which had been committed by the respondent.
5 The facts as submitted by the Crown to this Court were that the respondent's co-accused, a Mr Robertson, had claimed that the victim, who was living in a workshop where he repaired cars, owed Mr Robertson the sum of $5,000. The victim, however, claimed that any debt owed to Mr Robertson was not owed by him but was owed by another person. The claimed debt had arisen in connection with some tools which the victim had belonging to Mr Robertson.
6 The facts of the matter were disputed before the learned Judge after the pleas of guilty had been made. However, whatever the circumstances of the claimed debt, Mr Robertson had become very distressed because he thought that the headstone on his daughter's grave would be removed because he, Mr Robertson, could not make the payment due on it. Mr Robertson had been sleeping on the grave of his daughter which was some indication of how disturbed he was at the time. He apparently thought that the victim of the offences owed him the money which he claimed. He decided to collect the money so that he could pay the sum owing on the
(Page 5)
- tombstone. He asked the respondent to accompany him. On the morning of the 6 July 2000 the two of them went to the workshop where the victim was living.
7 Having heard the trial of the issues the learned sentencing Judge found that Mr Robertson had been armed with a shotgun when he entered the workshop; further that the respondent had then entered through the front door after Mr Robertson had let him in. The respondent was armed with a pistol and had pointed it at the victim. Mr Robertson and the respondent had remained at the victim's workshop for approximately two hours. They had originally intended taking property of the victim but Mr Robertson had relented after a discussion with the victim concerning Mr Robertson's daughter.
8 When they left the two offenders took the victim's HK Holden. The respondent told Mr Robertson he would pay Mr Robertson $1,500 for it. The respondent also took a mobile phone and various papers from another of the victim's vehicles.
9 The learned Judge found that the respondent's situation was significantly less culpable than that of Mr Robertson and that his role was the lesser role; further that the circumstances were quite exceptional. His Honour said that initially the respondent had had nothing to do with the matter and it had had nothing to do with him. He had simply responded to a call from Mr Robertson to assist him.
10 The learned Judge accepted that the respondent had known nothing about the events nor the impending situation until he had been contacted by Mr Robertson on that morning. Nevertheless, he found that the respondent had taken a pistol with him and had threatened the victim with it; that he had played an active role in intimidating the victim and in taking his property.
11 With respect to the respondent's antecedents, the learned Judge said that the respondent had a series of relatively minor convictions both in Victoria and Western Australia culminating in an appearance in the District Court in February 1997 for common assault and possessing heroin with intent to sell or supply, and stealing, amongst other things, as a result of which he had been sentenced to a total of 12 months' imprisonment. Later in April 2000 the respondent had been convicted of possessing a firearm without a licence, possessing MDMA and possessing a controlled weapon and unlicensed ammunition. Suspended sentences of imprisonment were imposed for those latter offences.
(Page 6)
12 The respondent was the eldest of three children whose parents had separated when he was about four years of age. The respondent had been subjected to abuse by his step-fathers. His mother had been the sole supporting parent for much of his developmental years. Later he had become the primary source of support for his mother who suffered from a psychiatric condition. When the respondent was 16 years of age his mother had tragically fallen in front of a train. The respondent had been devastated by this and for some reason had felt responsible for it. He had apparently never been quite able to come to terms with his mother's death. He had not had problems with the law however until he began associating with drug dependent people. At the age of 21 years he had come to Perth with the intention of starting afresh but he had engaged in an unstable lifestyle until 1997 when he was imprisoned.
13 The learned Judge found that the respondent's lifestyle had apparently stabilised after his release from prison and that he had abstained from illicit drugs for a period. He had a six year old child from a previous relationship. He had separated from his former partner in 1996. However, he had maintained regular contact with his former partner and his child. His current partner was 23 years of age and they had been living together for two years.
14 Importantly the learned Judge said that he accepted that the respondent had made positive changes and that until he committed these offences he had maintained regular employment. He had made lifestyle changes and accommodation changes so that he was not associating with his previous peers who were drug dependent.
15 The learned Judge said that when arrested the respondent had been working as a bricklayer for about four months. His previous employment had been that of a marine fitter. He said that there was apparently an offer of re-employment for the respondent should he be released. He had served approximately 6 months in prison prior to sentence.
16 The Judge was told that the respondent had not used illicit drugs for about two years. Significantly the author of a pre-sentence report had advised that:
"Ferguson impresses as a person who regrets his involvement in the commission of these offences and perceives that his mistake was his association with Mr Robertson and being misled by him. He has expressed frustration at his current predicament particularly as he has addressed his substance abuse problem
(Page 7)
- and has regular employment. Ferguson has displayed insight into his behaviour by his decision to seek psychological counselling in an attempt to resolve issues relating to the trauma of his mother's suicide and he appears to have had a determined effort at making positive changes in the last two years."
17 The learned Judge said that he accepted that that was the case. The respondent had been released on parole in May 1997 and had completed his period of supervision satisfactorily in October of that year. He had attended counselling at the Central Drug Unit and had reported as directed. Urinalysis results had indicated that he was not using illicit substances and his social situation appeared to have stabilised during that time. The learned Judge said that it seemed to him that the respondent had been making "genuine and indeed productive attempts towards his rehabilitation in recent times until these present unfortunate events."
18 The learned Judge said that the offences were serious offences but the respondent's role had been the lesser role. The circumstances, particularly so far as the respondent was concerned, had been quite exceptional. It was clear that he had made considerable efforts in the circumstances and that he had encouraging prospects of rehabilitation were he to be able to continue with it.
19 The learned Judge noted that when the respondent had arrived at the police station he had been apprehended. Firearms and ammunition were found in the vehicle in which he had travelled. There were two other people in the vehicle. However, his Honour said it had not been shown that those matters had had anything to do with the relevant offences although the fact that the respondent had been wearing a concealed handgun holster obviously raised serious suspicion. Nevertheless, the respondent had not been charged with anything in relation to those matters. His Honour said he could not sentence the respondent for offences which he had neither been charged with nor admitted.
20 The learned Judge said that taking into account all the matters to which he had referred and having regard to the circumstances of the offences themselves, on the first count of entering the place where the victim was with intent to commit an offence whilst the two offenders had been armed with dangerous weapons and in company, the starting point would be a term of imprisonment of 3 years. His Honour allowed 6 months reduction from that term for the plea of guilty although it had been entered at a very late stage. That brought the term to 2 years and 6 months' imprisonment. His Honour noted that the respondent had been
(Page 8)
- in custody for some 172 days. He allowed a further 5 months reduction to take account of that.
21 I note that according to my calculations 172 days is 24 weeks' imprisonment or 6 months' imprisonment and that in the normal scaling up, 9 months reduction would be allowed.
22 With respect to the second offence of stealing with threats of actual violence whilst armed with dangerous weapons and in company, his Honour said he would see the appropriate starting point as being 4 years' imprisonment and would allow 12 months reduction for the plea of guilty and a further 5 months for time in custody, which would reduce the term to 2 years 7 months' imprisonment. He considered that the terms of imprisonment ought to be served concurrently.
23 The learned Judge said that having regard to the factors which he had already mentioned, but particularly to the respondent's role in the offences and to his personal background and antecedents and more specifically his recent history and his performance in attempting to rehabilitate himself, it seemed that it would be appropriate to suspend the term of imprisonment and that an immediate term of imprisonment was not required. He ordered that the sentences be suspended for a period of 2 years.
24 With respect to the sentences previously passed upon the respondent, his Honour said he was satisfied it would be unjust in view of the circumstances which had arisen since they were imposed, and in particular, that the respondent had successfully completed his obligations under the orders of suspension to that date, subject only to the commission of the relevant offences, and considering the fact that the respondent had taken positive steps in his rehabilitation, his relationship with his partner and his stable situation, his involvement with the relevant offences and the fact that they did not arise out of anything or any conduct or initiative on the respondent's part, and that the respondent had not originally contemplated or understood what he was getting into, it was appropriate that the respondent be not required to serve the previously suspended sentences. His Honour ordered that those sentences would continue to be suspended.
25 Those previous terms had been 1, 4 and 6 months' imprisonment respectively which had been suspended for a term of 14 months.
26 At the hearing of this appeal counsel for the appellant contended that the two offences to which the respondent had pleaded guilty, involving the armed robbery and the raid on the victim's premises, had been
(Page 9)
- particularly serious. It was contended that the offences had been committed pursuant to a plan to enforce the repayment of a debt claimed by the respondent's co-offender and that the plan had involved the use of firearms by both the co-offender and the respondent. Both offenders had pointed their firearms at the victim's head during the commission of the offences. The respondent had then taken a motor vehicle, a mobile phone and various papers belonging to the victim.
27 It was submitted for the appellant that although the respondent had been making genuine productive attempts towards his own rehabilitation, he was a mature adult who had previously to the relevant offences, been granted a chance by the imposition of suspended sentences for earlier offences. It was submitted that greater weight should be given to the requirements of deterrence than those matters personal to the offender and that irrespective of a person's background and antecedents, burglaries which involve indiscriminate stealing of goods should give rise to punishment which hopefully would act as a deterrent to others. It was submitted that it was important for the Courts to protect the safety and sanctity of person's places of residence and that aggravated burglaries must be regarded as serious offences. Further, that the starting point of 3 years for the relevant aggravated burglary in this case had been inadequate and did not reflect the seriousness of the offence.
28 It was submitted that there was very little to differentiate the respondent's role from that of his co-offender and that the only difference was that the co-offender had advanced a motive. It was submitted that the only reason for what the respondent had done had been because he was the co-offender's friend. However, he had played an active role in intimidating the victim and in taking his property. He had also threatened the victim with a firearm.
29 Counsel for the appellant pointed out that the co-offender had been sentenced to a total of 5 years and 6 months' imprisonment with parole eligibility. It was submitted that the wide differential between the two sentences was not justified by the respective roles which had been played by the offenders in the commission of the offences. It was conceded that the co-offender was 43 years of age and the respondent was only 28 years of age. It was also appreciated that the co-offender had a longer record of convictions.
30 In my view, it is significant that the co-offender Mr Robertson, was the instigator, the ringleader and the proposed beneficiary of the offences. The respondent had been asked to go along and assist with no real
(Page 10)
- intention of obtaining any benefit. Also in my view, it is not insignificant that Mr Robertson, the co-offender, had been deeply distressed at the time and had believed that the victim owed him money. The co-offender had telephoned the respondent and asked him to assist. Mr Robertson had wanted to get the money which he said he was owed by the victim, because Mr Robertson's daughter had died in quite tragic circumstances and he wanted to keep a headstone over her grave. He did not have the money to pay for the headstone and he feared that it would be repossessed.
31 The circumstances of these offences were most exceptional. The learned Judge accepted that the respondent had been "simply responding to a call from a friend to assist him and I accept that Ferguson knew nothing about these events nor the situation until a call by Mr Robertson that morning." The Crown accepted that Mr Robertson wrongly believed that he was owed money by the victim.
32 Significantly, on the appeal the Crown did not allege any error of fact by the learned Judge. That is important because the Judge found that the respondent was significantly less culpable than Mr Robertson. Counsel for the Crown said that the Crown did not quarrel with that finding. It was also important that the respondent had spent 6 months in prison prior to the sentence being imposed.
33 In Dinsdale v The Queen [2000] HCA 54, unreported; 7 September 2000 Kirby J said at [62]:
"For reasons of legal history and policy the position of Crown appeals against sentences has long been regarded in Australia and elsewhere as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across 'time honoured concepts' of the administration of criminal justice in common law legal systems. For this reason, it has sometimes been said that, as a 'matter of principle,' such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced. The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it
(Page 11)
- complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences. This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate 'tinkering' with sentences."
34 In the same decision at par [68] Kirby J said:
"Each case must be judged on its own facts. The adoption of a blanket rule would itself be an error of sentencing principle. A discretion must be left to permit those with the responsibility of sentencing to take into account the peculiar circumstances of the case, any exceptional circumstances affecting the prisoner, and in some cases the prisoner's family, or some feature of the matter that reasonably arouses a judicial decision that a measure of mercy is called for in the particular case."
35 In Lowndes v The Queen (1999) 195 CLR 665 at 671 Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callaghan JJ said:
"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing Judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass (1993) 72 A Crim R 561 and R v Clarke [1996] 2 VR 520. Of particular importance in the present case is the principle that a Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice."
36 In my view, there was no error made by the learned sentencing Judge in this case. Although his Honour took a compassionate view of the respondent's situation he was entitled to do that.
37 It was for the above reasons that I agreed that the appeal should be dismissed.
(Page 12)
38 WHITE AUJ: I have had the advantage of reading the reasons to be published Wallwork J, I agree with those reasons and have nothing further to add.
15
1