R v Ferguson
[2016] ACTSC 255
•12 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Ferguson |
Citation: | [2016] ACTSC 255 |
Hearing Date: | 10 June 2016 |
DecisionDate: | 12 August 2016 |
Before: | Burns J |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular Offences – serious drug offences – trafficking in controlled drug – trafficking in methylamphetamine – criminal history with same type of offences – plea of guilty – reasonable prospects of rehabilitation – Intensive Corrections Order imposed. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 11 Crimes (Sentence Administration) Act 2005 (ACT), s 42 |
Parties: | The Queen (Crown) Albert Ferguson (Offender) |
Representation: | Counsel Ms K MacKenzie (Crown) Mr P Edmonds (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds & Associates (Offender) | |
File Number: | SCC 65 of 2015 |
BURNS J:
Albert Ferguson, you have pleaded guilty to one offence that between 3 October 2013 and 22 October 2013 you trafficked in a controlled drug other than cannabis, namely methylamphetamine. A comprehensive Statement of Facts was tendered at the sentence hearing and I will not now recite the facts in full.
It is sufficient to note that on 2 October 2013 an undercover police officer made contact with you and you agreed to sell methylamphetamine to her. On 4 October 2013, you met with the undercover police officer and sold her four snaplock bags containing 0.167 grams of methylamphetamine for $200.00. Lawfully intercepted information shows that during that period you trafficked intermittently at a “street dealer” level up until 22 October 2013. The maximum penalty for this offence is 10 years imprisonment, a fine of $140,000, or both. This indicates the seriousness with which the legislature views offences of this nature.
You originally entered a plea of not guilty, but on 20 April this year you pleaded guilty to the charge before the court. That plea was entered after the matter had been listed for trial. It cannot be said that the plea was an early plea, although I do take into account that there was a legal issue that arose concerning the admissibility of evidence which was resolved in the period leading up to you entering your plea of guilty.
I have a Pre-Sentence Report dated 25 May this year. I note that you are 48 years of age and that you are an Aboriginal man who describes close connections with family, both immediate and extended. You reported enjoying a caring and supportive relationship with your partner for over three years, and this was verified with your partner. The Report notes that you have been in receipt of a disability support pension since 2008 and you currently remain in receipt of Centrelink benefits. You describe a history of problematic alcohol consumption from a young age. Despite maintaining periods of abstinence from alcohol you reported your current pattern of alcohol consumption to be limited to once per month and you consider that your level of consumption to be moderate and not problematic. However, it is a matter of some concern that you noted that you linked your desire to use illicit drugs to alcohol consumption.
An alcohol related screening tool was administered which assessed your alcohol use to be low risk, indicating limited need for intervention. You told the author of the Report that you were a regular user of the illicit drugs cannabis and methylamphetamine. You advised daily cannabis use and stated your use of methylamphetamine to be approximately monthly and linked to your alcohol consumption. A drug screening tool was administered which assessed your use of illicit drugs to be moderate, requiring further investigation. Your previous attempts to address drug and alcohol use included attendance at counselling and group sessions at Winnunga Aboriginal Health Service in 2014.
I note that you maintained your innocence with respect to these offences to the author of the Pre-Sentence Report. I accept that your plea of guilty had a utilitarian value but I must say that bearing in mind the statements which you made to the author of the Pre-Sentence Report concerning your attitude to the offence, it does not appear that you have demonstrated much by way of remorse.
You have a criminal history which includes a number of drug related offences. Indeed, I note that in 2008 you were sentenced to terms of imprisonment with respect to offences of trafficking in methylamphetamine and possession of that drug. It was the opinion of the author of the Pre-Sentence Report that you were at medium to high risk of general reoffending predominantly due to your unaddressed illicit drug use and anti-social associates. You presented with some protective factors including stable accommodation and connection to your cultural heritage, but it was considered that in order to reduce your risk of further offending you may benefit from undertaking interventions targeted at addressing your illicit drug use.
I ordered an assessment to be undertaken for an Intensive Corrections Order. I have before me the Assessment Report, which is dated 10 August 2016. It notes your history which I will not repeat at this time. With respect to your response during the Intensive Correction Order assessment period, the authors of the Report note that you demonstrated a positive approach to your current circumstances and that you had begun to address the areas of risk that had negatively impacted your life. You attended all interviews at the scheduled times despite clearly suffering from illness and injury on occasion. You were described as polite and forthcoming during your interviews and you engaged well with your community corrections officer.
You also attended three sessions of a men's depression and anxiety group conducted by staff at Winnunga Aboriginal Health Service. You reported you intended on attending more sessions, however, you were precluded from doing so on several occasions due to illness. Staff at Winnunga confirmed that you notified them when you were unable to attend due to illness and reported that you engaged well with the program, actively participated and interacted positively with other participants of the group.
You told the authors of that Report that you had no recollection of the specific offence with which you had been charged. But you did acknowledge that selling drugs is wrong. You were assessed as a medium to high risk of general reoffending. The authors of the Report considered that if you could become abstinent from illicit drugs and continue to engage with interventions and support services such as the Winnunga Men's Group and other drug and alcohol counselling services your risk level should not increase.
Under the heading assessment, the authors of the Report said:
During the assessment period, the offender engaged positively with the assessing Officer and displayed a willingness to engage in any suitable interventions to address his criminogenic needs. His attitude towards achieving abstinence from all illicit substances has been positive and urinalysis testing throughout the assessment period supports his claim of abstinence from methamphetamine and his reduction in cannabis use. He has positive supports in family and his current partner and his relocation to Casey appears to have assisted his efforts to disassociate himself from anti-social acquaintances and other drug users. If sentenced to an ICO, interventions will continue to assist him to remain abstinent from illicit substances by engaging in counselling and participation in the Winnunga Nimmityjah Men's Group. In addition, he will be encouraged and assisted in pursuing other pro-social interests.
You were found to be suitable for an Intensive Corrections Order and it was recommended that any such order contain conditions that you continue engagement with the Winnunga Nimmityjah Men's Group and appropriate drug and alcohol counselling and that you are to engage with any referral made to a suitable assessment or counselling service in relation to lifestyle changes and decision making skills.
It is clear that the offence before this Court is a serious offence. Having said that, I consider it be in the bottom half of the range of offences of this nature. The offending continued over a period of time and, of course, involved a very dangerous substance. It has been conceded that a term of imprisonment is appropriate with respect to this offence, and I am satisfied that a term of imprisonment is the appropriate outcome. The question is whether that is a term of imprisonment which is to be served by way of full-time imprisonment, either wholly or in part, or whether it will be adequate to address the requirements of sentencing that the sentence be served by way of an Intensive Corrections Order.
I accept that an Intensive Corrections Order is significantly less onerous than a sentence involving full-time imprisonment. However, I think that there are reasonable prospects of rehabilitation in this case and in addition to which the requirements of general deterrence and punishment may be addressed by the imposition of a curfew condition. I note that the assessment for an Intensive Correction Order stated that the authors of that Report did not believe that a curfew requirement was necessary, however, it is not clear to me on what basis that assessment was made. In my opinion imposition of a curfew condition, which involves significant deprivation of liberty for the period of the curfew, can be imposed as part of the punishment which is imposed by the court for the offence itself. The curfew condition in my opinion does not have to be directed towards rehabilitation or the avoidance of further offending.
Sentence
Were it not for your plea of guilty I would have imposed a sentence of 20 months imprisonment. I will reduce that to 18 months imprisonment in view of your plea of guilty. You will be convicted and you will be sentenced to 18 months imprisonment commencing today, 12 August 2016, noting that you have not spent any time in custody with respect to this matter pre-sentence, and I will order that that sentence be served by way of intensive correction in the community.
I will impose a rehabilitation program condition. I will also impose a curfew condition for a period of six months commencing today. That curfew condition will require you to remain at your address [redacted for legal reasons] for that period of six months on a daily basis between the hours of 10 pm and 7 am.
In addition, there will be additional conditions imposed with respect to the Intensive Corrections Order pursuant to s 11(5)(e) of the Crime (Sentencing) Act 2005 (ACT) in that you are:
(a)to continue engagement with the Winnunga Nimmityjah Men's Group and appropriate drug and alcohol counselling as directed by ACT Corrective Services; and
(b)to engage with any referral made by ACT Corrective Services to a suitable assessment and/or counselling service in relation to lifestyle changes and decision making skills.
I also note that there are core conditions set out in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT), which the offender will be required to comply with. I have no doubt that those core conditions will be explained to you when you are inducted into the Intensive Corrections Order.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 6 September 2016 |
0
2