Solicitors:
Legal Aid NSW (for the offender)
Ms Cabrera (for the Director of Public Prosecutions)
File Number(s): 2018/00112857
[2]
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 He had withdrawn a sum of money in expectation of paying Ms Fergusson.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 Hotel in the car with the third man. Evidence before me indicates that attempts were made to use the victim's card at another local hotel's cash machine. The men left with the wallet and PIN number. Ultimately, $2,200 was withdrawn from the cash machine and, because of the information extorted from the victim another $3,400 was transferred out of his account.
Fergusson was arrested and charged with robbery in company. Her arrest was almost inevitable because the victim was well known to her. The offence carries a maximum penalty of 20 years' imprisonment: s 97(1) of the Crimes Act 1900.
Fergusson accepted her guilt while in the Local Court. She also asks me to take into account two matters which have been placed on a Form 1. They relate to an attempt to withdraw money from the victim's account and the obtaining of $3,400. I will do so. Ordinarily, matters on a Form 1 operate to increase the sentence imposed for the principal offence. Here, however, as they relate to the method used to obtain the proceeds of the robbery and because I have taken into account those matters when I came to assess the objective seriousness of the crime for sentence, it would be quite wrong to double count the matters on the Form 1 to further aggravate the sentence.
When it comes to formulating an appropriate sentence which gives proper effect to the various purposes of sentencing, purposes which apply to both the non-parole period and the total sentence, judges are given considerable discretion because every offence is different and every offender is different. The maximum penalty is one important guide to the exercise of that sentencing discretion; so too is my assessment of the objective seriousness of what was done.
I have had the benefit of evidence from Mikala Fergusson. I accept that the evidence she gave was what she now believes is what occurred, but it is very difficult for me to accept everything she said. She was regularly using and abusing illicit drugs and she had been for months if not years before the offence. She frankly acknowledges that this night she was well-affected by illicit drugs. I am prepared to accept that she is now medicated and much more clear headed and a clearer thinker than she was in September 2017.
I am prepared to accept that Ms Fergusson, who appears before me now, accepts that that would have been the consequence and she is now remorseful for what she did.
So far as the objective seriousness of the offence is concerned; a man who was expecting to engage with someone he knew well in a legal transaction was in a vulnerable state and his vulnerability was exploited. He was threatened and robbed. It was not a transient event; it took at least half an hour. One can readily appreciate how terrified and humiliated he would have felt.
The harm done to the victim is a matter I can take into account. I have to be careful however because this charge does not relate to the use of weapons. The principles explained by the High Court in The Queen v De Simoni (1981) 147 CLR 383, apply.
Fergusson's role was, as the prosecution properly submitted, integral to what occurred. Only she was aware of the arrangement with the victim. She was in the room alone with him, and she, unusually, asked him to shower and he waited naked for her to return. It was Fergusson who handed the keys to the two men who, on her own evidence, were both "scary individuals." They, I am prepared to accept, did scare her but she must have known that something terrible might or was going to happen to the person who she had previously had a professional relationship with.
She also took some steps to attempt to obtain the proceeds of the robbery. With respect, I cannot accept her evidence that she was not, at least at some stage, before, during, or after the event, expecting a reward - her share of the proceeds of the robbery. Although it appears she did not get a single cent.
It is submitted by Ms Stares who appears on her behalf, that all of the evidence, including statements she made to her parole officer and her evidence can, on balance, establish that she acted under non-exculpatory but mitigatory duress.
Duress implies forcible compulsion. It does not excuse offending or exculpate the offender, but it is capable of being a mitigating factor, both at common law and because of considerations which are picked up by 21A(3)(d) of the Crimes (Sentencing Procedure) Act 1999.
A sentencing court must be satisfied on balance that the offender's behaviour was affected by duress. Sentencing courts are also enjoined to be careful and astute not to permit general deterrence to be diluted by the claim of some threat or intimidation: Lindsay v R [2012] NSWCCA 124. Duress can affect an offender's subjective or moral culpability. It can be relevant to their prospects of rehabilitation: Tiknius v R [2011] NSWCCA 215. It has been held that it can be relevant to the assessment of objective gravity of the offence, but, in that case establishes, that there was a threat of fear to the person rather than financial profit or greed: Giang v R [2017] NSWCCA 25.
The problem with accepting on balance that there was mitigatory duress here is that Ms Fergusson really has very little memory of what occurred, and her objective proved acts do not fit entirely with her now belief as to what occurred. Accordingly, it is impossible for me to accept that what she did was subject to real fear as to the consequences for herself. That said, I am prepared to accept that; she was, herself, put in a vulnerable position by scary men, that she was with people who were relative strangers to her, and that there is no evidence that she setup this robbery.
To the contrary, if she had thought things through she would have realised that she alone would have been the person who would have been held responsible for the crime as the victim knew who she was and where to find her. It seems clear to me that her vulnerability was exploited by others. This is a bit different than duress, but still a matter that I can and should take into account. I am quite sure that she felt overwhelmed by the situation and acted accordingly, but drug affected or not, her objective actions and her failure to take any efforts to warn her client do her no credit.
Why was she so vulnerable? She was vulnerable because, at a young age, she had experience of her mother being the victim of a severe act of violence. She was vulnerable because, as a young a girl, she had experienced and then suffered the trauma of observing the trauma resulting from a horrific bus accident. The medical material indicates that, soon after that accident, she was in such a state that she needed to be hospitalised for her own protection and was clearly disturbed by it.
The evidence before me indicates she has a history of bipolar disorder. It indicates a background which can be described as one of extreme deprivation. Her childhood was disrupted by her having to care for her mother rather than being cared for by her mother. Her schooling was disrupted. She took up the use and abuse of illicit drugs well before she was old enough to make rational choices.
Courts must give full weight to such matters. They can, and here do, mitigate the sentence because the offender's moral culpability is likely to be less than the culpability of an offender whose formative years have not been so marred. Courts do not ignore how vulnerable a person such as Fergusson could be while; drug affected, battling with bipolar disorder and having to earn an income in a very vulnerable occupation.
The Sentence Assessment Report concludes that, without assistance, she will be a medium to high risk of re‑offending. Community Corrections believe that a supervision plan, including referral to community mental health, relapse prevention courses, and cognitive‑based interventions is required.
The background report provided by Ms Castles notes that Fergusson has some stability with her current partner and, while she is concerned about it, the security of her relationship might help her build towards recovery. Ms Castles acknowledges that the offender is at present resistant to one‑on-one counselling. It seems clear from the opinions of those who prepared the reports that without significant effort by Fergusson in engaging with counselling, relapse prevention, psychologists and psychiatrists, her prospects are grim. If she does engage however, she is intelligent and astute enough to make something of her life and start again when she is released.
It is heartening to know that she has now been medicated and continues to take her medication, and importantly that she recognises the need for her to maintain her medication.
There is ample evidence to indicate that, at least indirectly, her mental illness and the subsequent drug use has impacted on her at the time of the offence. It does mean that, together with her background, which are inextricably interrelated, that her moral culpability is reduced. The circumstances of her involvement in this offence I am sure would be understood by the community, and they would expect a court to treat her less severely than those who exploited her and those who engaged in violence towards the victim.
There is still a need, however, for specific deterrence; that is, by the harshness of the punishment, to get you, Ms Fergusson, to think about the future and the consequences of your actions. I am sure that the seven months spent in custody has weighed heavily on her, and I accept her evidence that she does not wish to return to gaol. There is nothing about Fergusson's background that makes her a danger to the community unless she gives up and resumes drug use.
I am indebted to Ms Stares for her submissions. She says that the significant and relatively unusual factors in this case could be met by a sentence that effectively takes into account time served and then allows for a considerable period on parole. Ms Cabrera, solicitor for the Director of Public Prosecutions, while accepting that an appropriate and full reduction be given for the plea and that special circumstances are clearly established, notes that the objective seriousness of the crime and her role in it, require a lengthy full‑time sentence.
The purposes of sentencing do not always point in the same direction. With great respect to Ms Stares and Ms Fergusson, there must be a further period of custody and a relatively significant one. While sentences must reflect the maximum penalty and the objective circumstances of what occurred, courts should also attempt to structure a sentence so that it does not remove all hope for the future and encourages a person to continue with the good work in custody and hopefully with support on release. Here, there will be a significant finding of special circumstances in the hope that, with assistance, Ms Fergusson can turn her life around.
The objective seriousness of what occurred, where a man was placed in a position of considerable vulnerability, has to be considered; mitigating factors can only go so far. I must, so far as practicable, attempt by the sentence imposed, to vindicate the dignity of the victim and met community expectations of appropriate punishment. Please stand, Ms Fergusson.
So serious were these matters that, had it not been for your plea of guilty, a sentence of four years would have been imposed. There will be a sentence of three years' imprisonment, taking into account the matters on the Form 1.
[3]
Orders
To give effect to my finding of special circumstances the formal orders of the Court are: You are convicted: there will be a non‑parole period of one year and ten months, which will commence on 1 January 2019. You will be eligible for release to parole on 31 October 2020. There will be a parole period of one year two months to commence upon the expiration of the non-parole period with the sentence expiring on 31 December 2021.
[4]
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Decision last updated: 04 October 2019