R v Fergusson - [2019] NSWDC 542

District Court

New South Wales

Medium Neutral Citation: R v Fergusson [2019] NSWDC 542
Hearing dates: 2 August 2019
Decision date: 02 August 2019
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentenced to a term of imprisonment of 3 years
Non parole period of 1 year 10 months.

Catchwords: SENTENCE - factors on sentence - robbery in company - client of prostitute robbed - forced to hand over account details - duress asserted - Form 1 and need to avoid double counting matters going to objective seriousness - offender’s own vulnerability exploited by co-offenders - tragic background - drug abuse - mental illness - custodial sentence still required - special circumstances found.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999.
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Giang v R [2017] NSWCCA 25
Lindsay v R [2012] NSWCCA 124
The Queen v De Simoni (1981) 147 CLR 383
Tiknius v R [2011] NSWCCA 215
Category: Sentence
Parties: Mikala Louise Fergusson (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Ms K Stares (for the offender)
Solicitors:
Legal Aid NSW (for the offender)
Ms Cabrera (for the Director of Public Prosecutions)

File Number(s): 2018/00112857

Judgment- Ex Tempore Revised

Mikala Fergusson is still a young woman. Her background, which is tragic in a number of aspects, and subsequent take-up of relatively heavy use of illicit drugs helps explain why she, for a number of years prior to 2017, worked in the local area as a sex worker. In September 2017, she was working at a parlour in Unanderra. She had a number of regular clients, one of whom those clients was the victim in the present matter. He had arranged for them to meet and booked a room at the Harp Hotel in Wollongong for 21 September 2017. He had withdrawn a sum of money in expectation of paying Ms Fergusson.
Ms Fergusson arrived late for the appointment at the Hotel and they went to a room. She asked him to take a shower. This was unusual. She was also spending time on her phone. She told him that she needed to go and get a charger. She dressed and left the room. She did not get a charger; rather, she met with three men and gave them the key to the room. She went with one of them to a car that was waiting outside.
Two of the men used the key to open the door to the room where the complainant was waiting naked. The victim was confronted by these men one of whom shone a torch in his face. The other was armed with a bar or some sort of weapon. Demands were made for the victim’s wallet and credit card PIN and bank details. He was told to lie face down and pillows were placed on top of him. More threats were made; the demands for his PIN and bank account details were repeated. These threats continued for about half an hour.
While this was occurring, the offender left the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Fergusson

Details

AGLC: R v Fergusson [2019] NSWDC 542
Case: [2019] NSWDC 542
Decision Date: 02 August 2019

CaseChat Overview and Summary

In the matter of R v Fergusson, the appellant was found guilty of robbery in company and the case was heard in the Supreme Court of Victoria. The appellant and his co-offenders, who were not present at the trial, robbed the victim, a client of a prostitute, at knifepoint. They forced him to hand over his account details and threatened to harm him if he did not comply. The appellant argued that he acted under duress and claimed he was the least culpable party, however, his plea was rejected by the court. The legal issues before the court were the appropriate sentence for the appellant and whether his background and the circumstances of the crime warranted any special consideration. The court acknowledged the appellant’s troubled upbringing and mental health issues, but also considered the severity of the crime and the need for general deterrence. The court concluded that while the appellant’s background was tragic, his involvement in the crime was significant, and a custodial sentence was necessary. The court found special circumstances in the appellant’s own vulnerability being exploited by his co-offenders. The court sentenced the appellant to a term of imprisonment of 3 years with a non-parole period of 1 year and 10 months. The court also noted the need to avoid double counting matters going to the objective seriousness of the crime and the appellant’s own vulnerability.

Orders

Orders of the court

Sentenced to a term of imprisonment of 3 years

Non parole period of 1 year 10 months.

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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Medium Neutral Citation:	R v Fergusson [2019] NSWDC 542
Hearing dates:	2 August 2019
Decision date:	02 August 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of 3 years Non parole period of 1 year 10 months.
Catchwords:	SENTENCE - factors on sentence - robbery in company - client of prostitute robbed - forced to hand over account details - duress asserted - Form 1 and need to avoid double counting matters going to objective seriousness - offender’s own vulnerability exploited by co-offenders - tragic background - drug abuse - mental illness - custodial sentence still required - special circumstances found.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999. Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Giang v R [2017] NSWCCA 25 Lindsay v R [2012] NSWCCA 124 The Queen v De Simoni (1981) 147 CLR 383 Tiknius v R [2011] NSWCCA 215
Category:	Sentence
Parties:	Mikala Louise Fergusson (the offender) Director of Public Prosecutions
Representation:	Counsel: Ms K Stares (for the offender) Solicitors: Legal Aid NSW (for the offender) Ms Cabrera (for the Director of Public Prosecutions)
File Number(s):	2018/00112857