R v Ferguson

[2021] NSWDC 226

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Ferguson [2021] NSWDC 226

Hearing dates:

26 March 2021

Decision date:

09 April 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

SENTENCE: Aggregate sentence of 3 years 4 months with a non- parole period of 2 years 1 month.

PROCEEDS OF CRIME- forfeiture order $23,650

Catchwords:

CRIME – possess prohibited firearm while subject to firearms prohibition order - Use unregistered firearm-prohibited firearm - Deal with property proceeds of crime under $100,000- possess ammunition

CRIMINAL PROCEDURE — Back up and related offence – not guilty plea- Deal with property proceeds of crime under $100,000 - what is a reasonable suspicion - guilty verdict- reasonable grounds to suspect that the property was the proceeds of crime

SENTENCING — Relevant factors on sentence — late guilty plea- offer to plea to similar facts rejected by prosecution in local court- level of utilitarian discount determined - underlying purpose of the early guilty plea scheme- related offence defended- application of sentencing principle- purposes of sentencing - need for individualised sentence – time in custody- evidence about the offender’s background uncontroversial- unsworn evidence going to the objective circumstances of the offending of little value- offender’s medical condition and problems obtaining treatment in custody - ill‑health can mitigate punishment - assistance by facilitating surrender of pistol

SUMMARY HEARING:- Deal with property proceeds of crime under $100,000 - guilty verdict

Legislation Cited:

CrimesAct1900

FirearmsAct1996

FirearmsAct1996

Criminal Procedure Act 1986

Criminal Code Act 1995 (Cth)

Crimes (Sentencing Procedure) Act1999

Cases Cited:

Anderson v R (1992) 62 A Crim R 277

Barbaro v The Queen (2014) 253 CLR 58

Chenv Director of Public Prosecutions (Cth) [2011] NSWCCA 205

CMBvAttorneyGeneral NSW (2015) 256 CLR 346; [2015] HCA 9

Director of Public Prosecutions (Cth) v Ngo [2012] NSWSC 1521

Do v R [2010] NSWCCA 182

Edensv Clearly [1975} 1 NSWLR 278

Ex Parte Patmoy; Re Jack (1944) SR (NSW) 351

Forrestv Director of Public Prosecutions (NSW) [2020] NSWCA 162

George v Rocket (1990) 170 CLR 104; 93 ALR 483; 64 ALJR 384; 48 A Crim R 246 at 115

GrantvTheQueen (1981) 147 CLR 503

Hili v The Queen (2010) 242 CLR 520

HusseinvChongFookKam (1970) AC 942

Irwin V R [2019[ NSWCCA 133

Olbrich v The Queen (1999) 199 CLR 270

R v AZ (2011) 205 A Crim R

R v Buckett (1994) 132 ALR 669

R v Ditmar [1973] NSWLR 722

R v English (1989) 17 NSWLR 149

RvJDX, JDXv R [2017] NSWCCA 9

RvKrstic [2005} NSWCCA 391

R v McKellar (No 3) [2014] NSWSC 106

RvQutami [2001] NSWCCA 353

R v Zotti [2002] SASC 164; (2002) 82 SASR 554

Sumrein v R [2019] NSWCCA 83

The Queen v Grant (1981) 147 CLR 503

The Queen v Pham 2015) 256 CLR 550 [2015] HCA 39

Tran v R [2010] NSWCCA 183; [2010] NSWCCA 183

Texts Cited:

Early Guilty Pleas: A New Ball Game, Ierace M., 4 April 2018, Public Defender Papers

The Hon Attorney General NSW, 2nd Reading Speech, Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017, Hansard, Legislative assembly, 11.10.17 page 10

Category:

Sentence

Parties:

Derek Scott Ferguson (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr D Dalton SC (for the offender)
Ms N Keay, Crown Prosecutor

Solicitors:
Hanna Legal Sydney (for the offender)

File Number(s):

2019/00360280

SENTENCE – ex tempore revised

1. On 4 December 2020 after a four day trial, a jury acquitted Derek Scott Fergusson on counts that on 15 November 2019, he:

1. Discharged a firearm with intent to cause grievous bodily harm: s 33A(1)(a) Crimes Act 1900; and

2. Discharged a firearm with disregard for the safety of any other person: s 93G(1)(c) Crimes Act 1900.

2. Ferguson must have the full benefit of those acquittals.

3. A few days before his trial on 30 November 2020, Ferguson accepted his guilt on a fresh count that was placed on a separate indictment that was not before the jury - on 15 November 2019 he did possess a firearm in contravention of a firearms prohibition that was in force: s 74(1) Firearms Act 1996. That matter is for sentence to day.

4. After his acquittal Ferguson said he was not guilty of a further charge that had come to the District Court on a s 166 Criminal Procedure Act certificate – that on 15 November 2019 he possessed property, being $24,480 cash, in circumstances where there was a reasonable grounds to suspect that the property was the proceeds of crimes: s 193C(2) Crimes Act 1900.

5. There were also two other matters on the 166 certificate to which pleas of guilty were entered - possess ammunition s 65(3) Firearms Act and possess unregistered firearm s 36(1) Firearms Act. The ammunition offence carries a penalty involving a fine. The s 36 matter has a maximum penalty of 14 years imprisonment but if dealt with in the Local Court there is a statutory limit of two years.

Background

6. A firearms prosecution order was served on Ferguson on 28 August 2017. It was in force on 15 November 2019.

7. On 15 November 2019 two men came to the front door of the Ferguson’s family home in Horsley, Southern Wollongong. They attended with criminal intent. They engaged with Ferguson, who stood on the other side of a locked screen security door. The two men tried to force entry into the home. They pulled at the bottom of the security door, bending it. Ferguson then produced a pistol and fired five shots through the door. The men ran off at speed. They were driven away by an associate who had been waiting in a car in the street outside the home. The incident was captured from security cameras at Ferguson’s and neighbours’ homes.

8. Police soon attended. They found Ferguson and his wife loading a car and about to leave. No pistol was found but CCTV from both Ferguson’s and a neighbour’s home showed Ferguson drive away from his home for a few minutes before returning. It also showed Ferguson and his wife attempting to dispose of what it can readily be assumed were spent cartridge cases.

9. A search warrant was executed at the home. A number of mobile phones were found. In a concealed space at the bottom of a wardrobe police found a bundle of cash. A mobile phone was found with that cash. As police picked it up it activated. No data was able to be downloaded from that phone, using what is known as a Cellebrite process. Police suggest that it was remotely accessed and its content wiped. That appears to be a reasonable supposition.

10. Other mobile phones were found, as were two other bundles of cash; approximately $800 in a man‑bag that also held papers associated with or belonging to Ferguson and a bit over $8,000 in a suitcase in the car in the driveway. Ferguson and his wife told police that until receiving advance notice a threat was imminent that they were planning a trip to Melbourne that day. Flight tickets were produced. Despite the incident and the very tight time left to meet the scheduled flight, both Fergusons maintained when police arrived that was still there intention to go to Melbourne for a weekend away.

11. Ferguson did not make his flight. He was arrested that day and has been in custody ever since. While in custody he made a number of phone calls some of which were played to the jury and some of which are before me in transcript form. It is important note that those speaking on gaol calls are informed that the calls will be monitored and recorded. Those calls indicate, from the outset, what occurred at trial; that Ferguson asserted he acted at all times in self‑defence. As is obvious from the jury’s verdicts, that assertion was unable to be rebutted by the Crown.

12. During the charge negotiation process in the Local Court Ferguson made an offer that in full discharge of all the Indictable matters before the Court he would plead guilty to a s 74(1) Firearms Act 1996 charge that he possessed a firearm in contravention of a firearms prohibition order. That offer was rejected. The Director of Public Prosecutions (DPP) indicated that they would proceed with all the matters that went to trial so far as the s 74(1) offence that any guilty plea must be to the “use” of, not merely the “possession” of, the firearm. Prior to trial the DPP did however accepted the guilty plea to a “possess” count.

Proceeds of crime - Hearing

13. The s 193C count came to the Court pursuant to a s 166 Criminal Procedure Act 1986 referral. The parties accept that I should deal with this matter both on the basis of the evidence given during the trial and, with my leave, the additional evidence in the Crown bundle: Exhibit A.

14. In dealing with a related offence, the District Court has the same functions, and is subject to the same restrictions and procedures, as the Local Court: ss 167 and 168 Criminal Procedure Act 1986. No one was required for cross‑examination. No defence evidence was tendered.

15. Mr Dalton provided written submissions. He submits that Ferguson has no case to answer. He places considerable reliance on the decision of Justice Button in R v McKellar (No 3) [2014] NSWSC 106.

16. Mr Dalton submits that given the definition of “proceeds of crime” and applying the reasoning of Button J in R v McKellar (No 3), the prosecution were obliged to particularise particular offence from which the proceeds were derived; for example, armed robbery or dealing in prohibited drugs or receiving stolen motor vehicles. In the absence of such particularisation he submitted the prosecution must fail.

17. He also relied upon s 193F Criminal Procedure Act 1986. In his submission s 193F only relieved the Crown of the burden of proving that the alleged proceeds of crime were derived from a particular criminal event and no more: it is incumbent on the prosecution to prove the type of crime the money found derived from.

18. Mr Dalton also submitted that the evidence before me left open real possibility that money came from the sale of a VL Holden Commodore some four months earlier.

19. Ms Keay, Crown Prosecutor, accepting McKellar (No 3), had persuasive authority, said in response that I could find on all the material before me that the money derived from Ferguson’s dealing in drugs.

20. Section 193C(2) falls within Pt 4AC Crimes Act 1900(NSW). These “money laundering” provisions were introduced in 2010. They are similar in form, content and structure to Ch 10, Part 2.2 Division 400 Criminal Code Act 1995 (Cth). Button J in McKellar (No 3) was dealing with a s 193B Crimes Act 1900 (NSW) “money laundering” offence. Justice Button, in dismissing the prosecution case, followed the majority in Chen v Director of Public Prosecutions (Cth) [2011] NSWCCA 205. He applied the reasoning of Basten JA and Garling J (Simpson JA dissented). Chen involved charges pursuant to s 400.5 Criminal Code Act 1995 (Cth). Justice Button held that for a s193B offence the trier of fact needed to know precisely what the prosecution identified as the relevant indictable offence said to found the assertion the property was either proceeds of crime or an instrument of crime.

21. In the Crimes Act 1900 (NSW) ‘proceeds of crime’ means “any property that is substantially derived or realised, directly or indirectly, by any person from the commission of a serious offence: s 193A Crimes Act (NSW).

22. The decisions relied upon by Mr Dalton and the definition of proceeds of crime, if narrowly construed, would seem to require the prosecution to particularise a type of offence. Although I do not need to determine the matter, and with respect, one matter that concerns me is that, criminals do not confine themselves necessarily to committing one type of offence. It is not uncommon for proceeds of crime to be realised from multiple criminal offences across many types of activity. For example it is notorious that weapons are often associated with drugs.

23. But I do not need to determine this matter as s 193F has limited relevance to my determination here. In short summary: the effect of s 193F (and its equivalent in 400.13 Criminal Code) is only to excuse the prosecution from proving a particular offence; that is, an offence particularised by reference to a person, date, time, place, and any other specific fact, matter or circumstance, which would need to be particularised to enable an accused to prepare a defence to a specific charge. Section 193F does no more.

24. Mr Dalton, however, asks me to reason that given the definition of proceeds of crime and how s 193F has been interpreted and applied, requires for a 193C matter, greater particularity than a mere assertion by the prosecution that the money was “drug related”.

25. As Basten JA noted in Chen v Director of Public Prosecutions (Cth) “The drafting of these provisions has a superficial simplicity which is belied by any attempt to apply them:” at [17]. His Honour went on to say, “They are legally fraught:” at [36].

26. For the reasons that follow Mr Dalton’s submission as to the operation of s 193F cannot be accepted nor can the analogy he seeks to draw with how s193B Crimes Act (NSW) or s 400.5 Criminal Code Act 1995 (Cth). I am dealing with as 193C(2) offence. For a s 193C offence the prosecution do not have the burden of proving that the subject matter of the charge is derived from a particular offence. Accordingly:

1. I find there is no requirement in s 193C placed on the prosecution to prove that the money or property is in fact the proceeds of the crime;

2. The prosecution are not required to prove beyond reasonable doubt that it is reasonable to suspect the cash was the proceeds of crime; and

3. The defence provision in s 193C(4) is inconsistent with proof of an offence with regard to the particularity spoken of in Chen and McKellar (No 3) with regard to the phrase “proceeds of crime”.

27. I note that these points were discussed although not ultimately resolved by Button J in Director of Public Prosecutions (Cth) v Ngo [2012] NSWSC 1521; a case to which I was not directly referred.

28. Section 193C’s elements differ significantly from s 193B and s 400.5 Criminal Code. I note it is a statutory alternative count to s 193B: see s 193E. Section 193C(2) provides:

“A person is guilty of an offence if:

(a) the person deals with property; and

(b) there are reasonable grounds to suspect that the property is proceeds of crime; and

(c) at the time of the dealing, the value of the property is less than $100,000”.

29. There is a deeming provision in s 193C(3) that allows a finding “there are reasonable grounds to suspect that property is proceeds of crime” here relevantly if “the value of the property involved in the dealing is, in the opinion of the trier of fact, grossly out of proportion to the defendant’s income and expenditure over a reasonable period within which the dealing occurs:” s 193C(3)(e).

30. Section 193C(4) allows for a defence:

“It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had no reasonable grounds for suspecting that the property was substantially derived or realised, directly or indirectly, from an act or omission constituting an offence against a law in force in the Commonwealth, a State or a Territory or another country”.

31. Section 193C adopts and follows a familiar format where reasonable suspicion is the critical fault element. It can be found in s 527C Crimes Act (NSW). Section 527C Crimes Act has a long if not illustrious history: Anderson v R (1992) 62 A Crim R 277; Ex Parte Patmoy; Re Jack (1944) SR (NSW) 351; R v Ditmar [1973] NSWLR 722; The Queen v Grant (1981) 147 CLR 503; R v English (1989) 17 NSWLR 149; R v Buckett (1994) 132 ALR 669 and R v Zotti [2002] SASC 164; (2002) 82 SASR 554.

32. In such cases, it has been held that, it is not appropriate to speak of the reasonableness of a suspicion being established beyond reasonable doubt. The prosecution must rather satisfy the trier of fact that the objective facts, proved beyond reasonable doubt, give rise to a reasonable suspicion that the monies were proceeds of crime. It is for the trier of fact to form a judgment as to whether any suspicion is a reasonable suspicion. As the South Australian Court of Appeal noted in Zotti” “A suspicion is either reasonable or unreasonable:” at [6].

33. Accordingly s 193C(2) Crimes Act requires only that it be proved beyond reasonable doubt that there are reasonable grounds to suspect that the money was the proceeds of crime. A defence is provided for in s193C(4): see most recently Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162, at [61].

34. It not in dispute that cash is property. It is not in dispute that $24,860 in cash was found at the premises. There is no dispute because I presume that Mr Ferguson wants that cash returned to him. It is not in dispute that Ferguson dealt with the cash and that is in the sense he possessed it.

35. Mr Ferguson did not give evidence. He was not obliged to and no inference against him can be drawn from his silence. He relied on the material tendered by the DPP and the onus placed on the prosecution. He did not invoke s 193C(4) other than to raise the possibility the cash could have come from the earlier sale of the VL Holden. The question thus remains; can I, on the evidence before me, draw the necessary inferences as to reasonable suspicion that the money being derived from the proceeds of crime?

36. I note that suspicion need not attach to all the money: Edens v Clearly [1975] 1 NSWLR 278.

37. The DPP assert that there is a strong circumstantial case the cash was derived from sort of criminality. They submit I can rely upon:

1. The location of the bulk of the cash in a secret drawer with a mobile phone, which phone was activated and then deleted remotely as the police accessed it.

2. Police intelligence reports noting Mr Ferguson had a “safe house” from which drugs and money had been ripped off.

3. Multiple phones being found at the premises.

4. A kilogram of compressed block powder often used to “cut” methyl amphetamine found in the kitchen of the home.

5. A “chemistry folder” on USB sticks containing formulae for legal and illegal drugs and clandestine laboratories.

6. A SMS message that related to “rip offs”.

7. The type of home occupied, the furniture, the designer goods, the cars used. And in particular the absence of any evidence to the defendant’s income and expenditure.

38. In response Mr Dalton notes:

1. the danger of giving any weight to intelligence reports possibly derived from criminals that had not led to charges and could never be tested.

2. The absence of any evidence relating to the defendant’s income, expenditure or ownership or otherwise of the cars used and the property found at the premises.

3. That the finding multiple phones is not unusual in a home where a number of adults and children live.

4. The powder was a common dietary supplement and found in the kitchen.

5. The USB sticks also contained information about legal drugs.

6. The absence of any evidence to connect the defendant to any drug laboratory.

7. In the gaol calls Ferguson speaks of money coming from the sale of a VL Holden Commodore for $60,000 in July 2019.

8. A bank statement noting that on 25 July 2019 the defendant’s parents received $60,000 which sum was withdrawn in cash withdrawals between the 27th and 29 July 2019.

39. Mr Dalton submitted that the prosecution case was founded on nothing but speculative theories and hearsay assertions of little if any probative value.

40. In response Ms Keay submitted that little reliance could be placed on the gaol calls that the defendant knew were being recorded and were self-serving. Rather she drew my attention to evidence that Ferguson had had no known occupation other than the care of his children. His wife had a relatively low paid job. And any assertions he cared for his children were contradicted by telephone calls where his wife indicated that he was “rarely around.”

Reasonable suspicion

41. In George v Rocket (1990) 170 CLR 104, Kirby J at 115, cited Lord Devlin, at 948: “Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking, ‘I suspect but I cannot prove:” Hussein v Chong Fook Kam (1970) AC 942. Kirby J noted that the facts which can reasonably ground a submission may be quite insufficient reasonably to ground the belief, yet some factual basis for the suspicion must be shown.

“From the history of this offence it is important to note the consistency with which courts, both in the United Kingdom and in Australia, have insisted upon a strict construction of the words outlining the elements of the offence, recognizing the extraordinarily serious character of a law which authorizes the arrest of a person on mere suspicion, to be followed by his conviction and possible imprisonment unless he satisfies the court that he had no reasonable grounds for suspicion that the thing in his custody bore the taint of illegality” Grant v The Queen (1981) 147 CLR 503, at [6]

Determination s 193C related offence

42. A substantial quantity of cash was found on Ferguson’s arrest. He accepts it was in his possession. He wants it back. He was planning a trip to Melbourne accordingly it is far from unreasonable a sum of $830 would be in his man bag. As to the $8,650 in the suitcase and the $15,000 in the wardrobe, no defence was offered. No evidence was offered to connect that money to the sale of the VL Holden with the cash.

43. I discount police intelligence report. But I do not discount; the nature of the home and its contents, where the money was located, what it was located with, in particular with phone that was remotely wiped and the absence of any evidence of income or other source for the cash. The cash is suspect and the evidence before me, which I accept, leads to only one conclusion that with the exception of the $830 it had no innocent source, the cash if the proceeds of crime. For that matter Ferguson is convicted.

44. I note that for the other matters on the s 166 Certificate guilty pleas entered.

Sentence proceedings: Objective seriousness

45. While every offence and every offender requires individualised treatment courts must in the exercise of their discretion take guidance from a number of sources. They include; the maximum penalty. Here those maximums are; 14 years for the s 74(1) Firearms Act offence, three years for the s 193C(2) Crimes Act offence and the s 36(1) Firearms Act matter (noting that because they are dealt with summarily there is a limit of two years)

46. I must also take into account the decisions of other courts, particularly those from the Court of Criminal Appeal designed to give guidance; a number of which were cited by Mr Dalton, including Sumrein v R [2019] NSWCCA 83 and Irwin v R [2019[ NSWCCA 133..

47. I also have to consider the application of sentencing principle. Mr Dalton took me to a number of my decisions relating to firearms matters. The guidance offered by appellate courts and other decisions, including my own, is always welcome. If there is a pattern of past sentences for an offence it may serve as a yardstick or help establish a range, however it is not here suggested that there are not sufficient s 74(1) matters to do so. And I have to note that each case and every offender is individual, a point I made when discussing my earlier decisions with Mr Dalton: Hili v The Queen (2010) 242 CLR 520, Barbaro v The Queen (2014) 253 CLR 58 at [74] and The Queen v Pham (2015) 256 CLR 550.

48. Guidance also comes from the purposes of sentencing, which here importantly include the deterrence of this offender and others from committing similar crimes and proper recognition of the harm done to individuals and the community. To those purposes I now turn.

49. The offence involved a significant breach of the Firearms Act 1996. That Act makes it clear that firearm possession is a privilege that is conditional on the overriding need to ensure public safety. There was no justification here for the possession of the firearm. The firearm was a pistol. It was, by its nature, an easily concealable weapon. Here, obviously, it was easily concealed from the persons who came to the secured door. It was accepted as it is an element of the offence that it was possessed in contravention of a firearms prohibition order. It was loaded. It was kept in a family home. Ammunition was also possessed. The weapon was not licensed nor registered and its possession posed a significant risk to the safety of the community.

50. The objective seriousness of this offence was reasonably high and the policy set out and the maximum penalty make that clear. See R v Krstic [2005] NSWCCA 391 at [14]; R v AZ (2011) 205 A Crim R, at [73].

51. Although the pistol was, as the jury found the offender used in self‑defence I cannot on balance find it was possessed solely for that purpose. I do not know how long it was possessed or for what purpose. Ferguson obviously obtained the pistol from criminals as its serial number had been obliterated. In some cases possession of a pistol as part of an offender’s involvement in other crimes makes the criminality of the offence more serious, here however, as this has not been proved beyond reasonable doubt it cannot be taken into account.

52. The High Court in Olbrich v The Queen (1999) 199 CLR 270 recognised that sometimes a sentencing court must sentence according to what is known or agreed. At [24] the Court made the point that a judge who is not satisfied of some matter urged in plea on behalf of the offender, does not have to sentence the offender on the basis of that contention unless the prosecution prove the contrary beyond reasonable doubt.

53. There was no lawful basis for possession of the firearm. Although the offender must get the full benefit of his acquittal this case demonstrates that firearms if unlawfully possessed, are liable to be used. The firearm was later hidden for a period in a public space. The possession of the firearm created a danger to the public: Do v R [2010] NSWCCA 182; Tran v R [2010] NSWCCA 183; [2010] NSWCCA 183.

54. With regard to the summary matter relating to possession of the pistol I cannot make a finding as to how long the possession of that pistol occurred before it was used on the day in question; it would be wrong to speculate.

55. A substantial quantity of cash was found. All the circumstances indicate that only a short custodial sentence could meet the purposes of sentencing.

Structure

56. The breach of the firearms prohibition order was an element of the principal offence. Mr Ferguson should not have possessed a firearm. Accordingly, the pistol could never have been registered. All the Firearms Act matters for sentence were linked and shared some common features. When assessing the appropriate aggregate sentence I have to be careful not to double count matters relevant to the objective seriousness of multiple offences.

57. Here the ammunition case should be dealt with by the use of s 10A Crimes (Sentencing Procedure) Act1999 and the summary jurisdiction, the s 166 possess offence should in all the circumstances be made concurrent.

58. There must be some independent punishment for the proceeds of crime matter.

Plea discount

59. The Crown submitted that s 25D Crimes (Sentencing Procedure) Act 1999 requires that as the plea of guilty was entered late a reduction of 10% should be accorded the offender. Mr Dalton submitted that the 25% reduction was required on the otherwise appropriate sentence. Ms Keay responded that a plea to this offence could have been entered in the Local Court. She relied on s 25D(4) Crimes (Sentencing Procedure) Act 1999.

60. I was referred to the charge negotiation documents kept in the sealed envelope of the registry file. A plea to a possess offence was offered in the Local Court but as Ms Keay submitted it was conditional on other matters being withdrawn

61. If a guilty plea is offered and accepted in the Local Court an offender must have the otherwise appropriate sentence reduced by 25% to reflect the utilitarian value of that plea. If a plea is entered after the matter comes to the District Court that discount is reduced to 10%. If the guilty plea comes within 14 days of the trial date only 5% is allowed. If however the defence offer to plead is made the Local Court (and recorded in a negotiations document) and subsequently rejected by the Director of Public Prosecutions a reduction of 25% in any sentence that would otherwise have been imposed can be allowed: s 25D(3).

62. The court can also to apply a sentencing discount where a guilty plea offer is made for different offences and refused when made and the offender was found guilty of the different offence or an offence that is reasonably equivalent to the different offence the maximum penalty the same or less than the different offence: 25E

63. I was referred to a paper Early Guilty Pleas: A New Ball Game, Ierace M., 4 April 2018, and the 2nd reading speech of The Hon Attorney General NSW, Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017: Hansard, Legislative Assembly, 11.10.17, page 10.

“The effect of new section 25E is that where the accused person made an offer to plead guilty to an offence, or a reasonably equivalent offence, which either the prosecution refused but then later accepted, or the accused is later found guilty of that offence, or a reasonably equivalent offence, the accused may be eligible for up to a 25 per cent discount. This is important because there are multiple offences that have similar elements and penalties. An accused person should not be required to offer to plead guilty to exactly the right charge, or to every possible variation of an offence, in order to obtain the discount.”

64. It was agreed that the charge negotiation document should be tendered. A review of that document reveals that the defence offer to plead to the possess offence and that when that offer was made it was conditional on the withdrawal of the charges that eventually went to trial. Ferguson was acquitted at trial. This particular fact situation could be fitted into the legislative scheme, although with some difficulty. However the bottom line here is that the jury verdicts left the parties at the very position they were when the defence offer was made and rejected in the Local Court. In those circumstances it would seem necessary if only for fairness reasons to reduce the otherwise applicable sentence by 25%. That outcome would fit with the underlying purpose of the early guilty plea scheme and I will allow 25%.

Criminal Antecedents

65. The offender has criminal antecedents. They include a weapons matter. He is not a first offender but this is his first custodial sentence and his record is, compared to many others, not extensive. He is not to be treated as a first offender but he can be treated as a person who is serving his first time in custody.

Subjective material on sentence

66. No oral evidence was called but a number of exhibits were tendered.

67. His wife’s bail affidavit was before me as was a letter to the Court by the offender and Mr Borenstein’s psychological report. That evidence falls into two parts.

68. The parts that recount the offender’s family history and background appear uncontroversial. He has a solid family background. He been married since he was a young man and has children for whom he provides and who he loves. He has support in the community and that support has been unconditionally extended to him during his time in custody. He has solid plans for his future on release from custody.

69. But other parts of the unsworn evidence relate to assertions that go to the objective circumstances of the offences and are no or little value: R v Qutami [2001] NSWCCA 353. Considerable caution should always be exercised in relying upon such matters where no evidence is given. The phone transcripts, for example, belie assertions in his letter that he has cut ties with criminal associates.

70. Further, where a psychological report uncritically parrot claims by a person who is not willing to be tested carry little weight, R v JDX, JDX v R [2017] NSWCCA 9.

71. There is however objective evidence indicating that Ferguson had and still has still has a very a serious illness. He was in remission when arrested but on daily preventative medication. He has continued on that medication. There were, on the evidence before me, periods where he was not able to access that medication. There is evidence that repeated requests were made by him and his solicitors on his behalf for testing and that that testing was not immediately made available to him. When it was made available to him it was found that his cancer, then in remission had reappeared. It appears at that point relatively prompt action was taken.

72. I accept that since coming under Professor Goldstein’s care there has been no evidence of a reoccurrence of his rare stomach tumour but three things must be noted. First, he did not come under Professor Goldstein’s care until October 2020. Secondly, he will remain on daily prevention therapy for at least two years. And, thirdly, if that therapy is not made available to him his condition could be compromised. It also needs to be made clear that his condition will need close surveillance with both CT scans and intermittent PET scans; for which he is totally reliant on Justice Health resources being made available to him.

73. I also note Professor Goldstein’s conclusion that he is still at very high risk of recurrence either during or after the end of the prevention treatment.

74. While offenders cannot escape punishment because of ill‑health it is a factor that can mitigate punishment, particularly where, as here, I find imprisonment will place a greater burden on this offender by reason of their state of health and they remain at significant risk.

75. As well as the risks associated with his medical condition, the realities of prison life should not be overlooked. Ferguson’s serious poor health will make the imprisonment more burdensome, a matter that can also sound in special circumstances.

76. I do not underestimate the lived experience of gaol. I also take into account that he has served the bulk of his time on remand subject to the considerable COVID‑19 restrictions placed on all prisoners; which include suspension of personal visits with family.

Assistance

77. After his arrest, a solicitor acting on the offender’s behalf arranged for the surrender of the pistol. The offender’s role in this surrender must be acknowledged and will used for his benefit in reduction of his sentence. Section 23 of the Crimes (Sentencing Procedure) Act1999(NSW) gives a court power to impose a lesser penalty after having regard to the degree to which an offender has assisted in this matter. I note the restrictions in 23(3).

78. It is also important to note the offender did not speak to police at any stage or offer evidence about whoever supplied the pistol to him. No information was provided to any authority about who had possession of the weapons before or after his arrest, nor was any information provided about the criminal activity in relation to how it was obtained or otherwise possessed. This was the only direct assistance and co‑operation in the investigation of the offence for sentence and the trial.

79. There was a delay between the offence and the revelation of the pistols whereabouts. It appears the pistol was secreted in a public place by persons unknown prior to its position being revealed. There was a risk a person, even a child, could have come across it; given where it was located. Evidence about its location was called at trial. No other person who had anything to do with the pistol can be brought to justice. Nevertheless the removal of a firearm of this type from the hands of criminals reduces the risk that it would in the future be involved in future crime and the offender seeks to have this revelation rewarded by a reduction in penalty. Because it was useful, despite the fact the motivation was clearly self‑interest, I will reduce the sentence. That reward must be quantified: CMB v Attorney General NSW (2015) 256 CLR 346; [2015] HCA 9. The lesser penalty however cannot be unreasonably disproportionate to the crimes committed, s 23(3). For ease of calculation and transparency I will do so by making a reduction of two months from the otherwise appropriate sentence: s 23(4).

Submissions

80. I have received extensive submissions oral and written from Mr Dalton SC and Ms Keay. I have considered and sought to address them in coming to my determinations. I hope this judgment does justice to them.

Synthesis

81. The sentence must be custodial. It must commence on 15 November 2019. I must try and synthesise all of relevant matters and come up with a just and appropriate aggregate sentence. I must indicate the sentences and structure them in such a way that is as transparent as possible and reflects the overall criminality of the offender’s conduct.

82. There will be a finding of special circumstances because of the offender’s the ill‑health, the absence of any extensive record and the prospects that with supervision and monitoring, he may not reoffend.

Orders

83. In relation to the s 65(3) Firearms Act matter- possess ammunition without holding licence/permit/authority I dispose of the proceedings without imposing any other penalty other than a conviction pursuant to s. 10A Crimes (Sentencing Procedure) Act 1999. It is not expedient to impose a fine given the time spent in custody.

84. In relation to the s 36(1) Firearms Act matter - use unregistered firearm-prohibited firearm, taking into account the plea of guilty, I indicate a sentence of one year and six months. I also not that in the structure of the aggregate sentence that sentence will be totally concurrent with the principal offence.

85. In relation to the s 193C(2) Crimes Act matter - deal with property proceeds of crime, you are convicted. I indicate a sentence of one year imprisonment.

86. In relation to s 74 Firearms Act matter possess prohibited firearm subject prohibition order, I indicate a sentence of 3 years imprisonment. That sentence takes into account a reduction of 25% as noted above at [61].

87. All of those matters give me a starting point sentence, taking into account the plea of guilty in the main matter, of three years and six months. That sentence will be reduced for the s 23 assistance by two months, which leaves an aggregate sentence of three years and four months. The sentence should commence on 15 November 2019. There will be a non‑parole period of two years and one month. He will be eligible for consideration for release to parole on 14 December 2021. There will be a parole period of one year and three months the total sentence 14 March 2023.

88. The bottom line, so far as you are concerned, you will be eligible for release to parole on 14 December 2021.

89. Given my findings in the s 193C(2) Crimes Act matter I propose to make a proceeds of crime forfeiture order in the sum of $23,650. I have draft short minutes of order ready but I will delay entering the order for 7 days to allow Mr Soukie to obtain instructions and advise the court and the DPP if any further evidence is to be called or submissions are to be made.

90. I make a firearm destruction order.

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Amendments

22 October 2021 - Catchwords only - $10,0000 corrected to $100,000

Decision last updated: 22 October 2021