District Court
New South Wales
Medium Neutral Citation: R v Ferguson [2022] NSWDC 356 Hearing dates: 7 June 2022 Date of orders: 14 June 2022 Decision date: 14 June 2022 Jurisdiction: Criminal Before: Grant DCJ Decision: Orders at [129]
Catchwords: SENTENCING – dishonestly obtain financial advantage by deception – Chief Financial Officer – substantial sums misappropriated – breach of trust – offender the victim of a dating scam – catfishing – motive for offences – honest intention to repay funds – strong subjective circumstances – assistance to authorities – excellent prospects of rehabilitation – offender is remorseful and contrite – intensive correction order imposed
Legislation Cited: Crimes Act 1900
Cases Cited: Abellanoza v R [2021] NSWCCA 4
Cahyadi v R (2007) 168 A Crim R 41
Kable v DPP [1995] 36 NSWLR 374
Kovacevic v Mills [2000] 76 SASR 404
Mandranis v R [2021] NSWCCA 97
Mourtada v R [2021] NSWCCA 211
Postiglione v The Queen (1997) 189 CLR 295
R v Curtis (No 3) [2016] NSWCCA 866
R v Fangaloka [2019] NSWCCA 173
R v Pantano (1990) 49 A Crim R 328
R v Pont (2000) 121 ACR 302
Sarah-Jane Vaughan v R [2011] NSWCCA 4
Category: Sentence Parties: Regina (Crown)
Kaye Leanne Ferguson (Offender)Representation: Counsel:
Solicitors:
Ms C Mendes (Offender)
Mr S Matchett (Crown)
Mr M Rosalky (Offender)
File Number(s): 2021/00030267 Publication restriction: Nil
JUDGMENT
Introduction
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Kaye Leanne Ferguson is 59 years of age. She soon will be 60. She has born five children in a loveless marriage. She was subjected to verbal, emotional and physical abuse throughout her marriage. Her husband was an alcoholic. In January 2020, she separated from her husband. She was sad, lonely, depressed and vulnerable. She sought happiness from a dating site. She was scammed and lost a considerable amount of money.
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She went back to the dating site in search of happiness. She found a man that she thought would provide what her life had lacked – happiness. She was vulnerable with low self-esteem. She was ripe to be scammed and so she was. The scammer made her feel fault and guilt for locking him out of his bank account. To make amends she exhausted her finances in the belief that he had the means and ability to pay her back upon his return to Australia.
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She was the Chief Financial Officer of a club. She was the sole signatory of the club accounts. It was a successful and profitable club. She, in breach of the trust reposed in her, used over a million dollars of the club's money to assist the scammer. At the time she transferred the funds, she also believed…
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- AGLC
- R v Ferguson [2022] NSWDC 356
- Case
- [2022] NSWDC 356
- Decision Date
CaseChat Overview and Summary
The court had to consider various factors in determining an appropriate sentence. These included the nature and extent of Ferguson's deception, the breach of trust involved, and the impact on the victim. The court also considered the motive behind the offences, which was largely due to Ferguson falling victim to a dating scam known as "catfishing." Additionally, the court weighed Ferguson's intention to repay the misappropriated funds, his subjective circumstances, his assistance to the authorities, and his prospects for rehabilitation. The court found that Ferguson was remorseful and contrite, which was a mitigating factor.
In light of these considerations, the court determined that an intensive correction order was the most appropriate sentence. This order would require Ferguson to participate in a structured program designed to address his offending behaviour and facilitate his rehabilitation. The court noted that while the offences were serious, the unique circumstances warranted a sentence that focused on rehabilitation rather than purely punitive measures. The court's decision was influenced by the likelihood of Ferguson's successful rehabilitation and his willingness to make amends.
The final orders of the court included the imposition of an intensive correction order on Ferguson, as outlined in the judgment at paragraph [129].
Orders
Orders of the court
Orders at [129]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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