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District Court 20 September 2024

R v Ferguson (No.2)

[2024] NSWDC 437

Sexual offences
JUDGE ALONE TRIAL.

Citation: R v Ferguson (No.2) [2024] NSWDC 437
Court: District Court of New South Wales
Date: 20 September 2024
Judge: Mahony SC DCJ

Background

The offender faced four counts arising from a single episode of sexual offending on 22 October 2020 at Raymond Terrace. The victim was an 18-year-old man with a cognitive impairment who was the autistic best friend of the offender's stepson. The offender opportunistically exploited a significant power imbalance to commit a series of sexual acts against the victim without consent.

This sentencing judgment followed a judge alone trial on the four counts. Those counts had previously been before a jury, which was unable to reach a verdict on them. The jury at the earlier trial did convict the offender on two other counts from the original indictment, and those convictions and the sentences subsequently imposed by the Court of Criminal Appeal were relevant to the totality principle applied here.

The four counts consisted of two charges of sexual touching in circumstances of aggravation under s 61KD(1)(a) of the Crimes Act 1900 (Counts 1 and 3) and two charges of aggravated sexual intercourse under s 61J(1) (Counts 2 and 4). The offender was found guilty on all four counts following the judge alone trial, as recorded in the earlier verdict judgment R v Ferguson [2024] NSWDC 331.

Legal Issues

  • What was the appropriate aggregate sentence, taking into account the objective seriousness of each of the four offences?
  • Which statutory aggravating and mitigating factors applied under s 21A of the Crimes (Sentencing Procedure) Act 1999?
  • What weight should be given to the offender's Functional Neurological Disorder and mental health conditions as subjective mitigating factors?
  • What weight should be given to the offender's dysfunctional childhood under the principle in Bugmy v The Queen?
  • How should the principle of totality under Mill v The Queen be applied, given the sentences already imposed by the Court of Criminal Appeal for the two earlier counts?
  • Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 to justify a shorter non-parole period relative to the overall term?

Decision

Objective seriousness: The court found that all four offences fell within the mid-range of objective seriousness for their respective categories (at [47]). However, because s 61J(1) covers a broad range of sexual misconduct, the offending in Counts 2 and 4 fell towards the lower end of that mid-range (at [47]). The victim's cognitive impairment was an element of the aggravated offences in Counts 2 and 4 and therefore could not be counted again as a separate statutory aggravating factor (at [48]).

Aggravating and mitigating factors: The court identified several aggravating factors under s 21A(2), and accepted the statutory mitigating factors advanced by both parties under s 21A(3) (at [49]-[50]). The court gave marginal weight in mitigation to the offender's concession at trial that the victim had a cognitive impairment, which removed the need for the Crown to call expert psychiatric evidence, but noted it was a matter that could easily have been established in any event (at [52]).

Subjective case, FND, and Bugmy: The court accepted that the offender's Functional Neurological Disorder, described as a severe and chronic condition involving complex right-sided movement disorder and non-epileptic seizures, made custody more onerous and reduced the need for both general and specific deterrence to some extent (at [54]). The court accepted that the offender's dysfunctional childhood, marked by emotional and sexual abuse, reduced his moral culpability to a degree under Bugmy. However, it declined to give that principle full weight because the offending did not arise as a learned response to his circumstances of deprivation, and the offender had gone on to gain qualifications and work successfully until his FND diagnosis in 2018 (at [53]).

Totality, concurrency, and special circumstances: Applying the principle of totality, the court notionally considered sentencing the offender across all six counts, including the two counts dealt with by the Court of Criminal Appeal, to achieve proportionality (at [57]). Given the offending occurred in one short rolling episode and Counts 1 and 3 were preparatory to Counts 2 and 4, the court applied significant concurrency with limited accumulation (at [62]). Special circumstances were established under s 44(2B) based on the offender's significant physical and psychological needs requiring ongoing care in custody (at [62]).

Orders Made

  • The offender was convicted on all four counts of the indictment.
  • An aggregate sentence of 4 years imprisonment was imposed, with a non-parole period of 2 years commencing 22 May 2024 and expiring 21 May 2026.
  • The balance of term runs from 22 May 2026 to 21 May 2028.
  • The parole eligibility date is 21 May 2026 (release is not automatic and is subject to State Parole Authority determination).
  • Psychological and medical reports (Dr Hare dated 12 May 2022 and Dr Caruana dated 4 May 2022) were directed to be provided to NSW Corrective Services.

Key Takeaways

  • Where a victim's cognitive impairment forms an element of an aggravated offence under s 61J(1) of the Crimes Act 1900, that same characteristic cannot be treated as an additional statutory aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (at [48]).

  • The District Court confirmed that Functional Neurological Disorder, assessed as a severe and chronic condition, is capable of reducing the weight given to general and specific deterrence in sentencing and of establishing special circumstances that justify a reduced non-parole period relative to the total term (at [54], [62]).

  • Under the principle in Bugmy v The Queen, a dysfunctional childhood involving abuse may reduce an offender's moral culpability even without a proven causal link between that background and the offending. However, the extent of that reduction is limited where the offender's life trajectory does not demonstrate the kind of entrenched disadvantage from which the offending arose as a learned response (at [53]).

  • Applying Mill v The Queen to the totality principle, a sentencing court must notionally consider all offences together, including those already sentenced by a superior court, so that the cumulative effect of all sentences remains proportionate to the overall criminality (at [57]).

  • A victim impact statement demonstrating serious and ongoing psychological harm to a vulnerable victim can be acknowledged and given weight in sentencing without being used to separately aggravate the objective seriousness of the offending or the offender's moral culpability, in order to avoid double-counting (at [56]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- Aryal v R [2021] NSWCCA 2
- Brockie v R [2019] NSWCCA 120
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Director of Public Prosecutions (Cth) De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Hoskins v R [2021] NSWCCA 169
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- R v Ferguson [2024] NSWDC 331
- R v MAK (2006) 167 A Crim R 159
- Stewart v R [2012] NSWCCA 183