DPP v Ferguson-Dolan [2021] VCC 1212 (27 August 2021)

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN FERGUSON-DOLAN

JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	7 July 2021
DATE OF SENTENCE:	2 September 2021
CASE MAY BE CITED AS:	DPP v Ferguson-Dolan
MEDIUM NEUTRAL CITATION:	[2021] VCC 1212

Catchwords: Aggravated burglary – young offender – profound child deprivation – intellectual disability – early plea of guilty during the currency of the Covid-19 pandemic

Sentence: Aggregate 91 days’ imprisonment reckoned as time served followed by a 2-year Community Correction Order

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms M Sargent	Office of Public Prosecutions

For the Accused	Mr G Davis	Martin Middleton Oates Lawyers

1 Nathan Ferguson-Dolan, you have pleaded guilty to one charge of aggravated burglary, for which the maximum penalty is 25 years’ imprisonment, and one charge of theft, for which the maximum penalty is 10 years’ imprisonment. You have also pleaded guilty to one summary charge, that of contravene a personal safety intervention order (“PSIO”), for which the maximum penalty is 2 years’ imprisonment and/or a fine of up to 240 penalty units. You have served 91 days by way of pre-sentence detention, and have been on bail since 26 February 2021.^[1]

2 The offending in this case occurred around midday on 23 November 2020. You were living at premises where there were a number of different units. You lived in one of these units, and your victims, Lucas Hallam and Tuscany Puglisi, lived together in a different unit. You knew Mr Hallam because you had lived in the same residential facility some years earlier, and because Mr Hallam had taken a PSIO out against you on 16 November 2020 when you caused damage to his door while threatening to break in.

3 At the time of the offending, you were under the influence of methylamphetamine and had taken an overdose of Seroquel. The victims were home and asleep. You walked in and out of your unit, then picked up a chair, walked to their unit, and used the chair to smash their front window. You tried to gain entry through the front door, then climbed through the broken window and asked for Mr Hallam, who had shut himself in his bedroom in fear. You opened his bedroom door, called him a snitch, then grabbed a pair of scissors from his bedside table while shouting at him that he had ruined your life. Ms Puglisi tried to call triple zero but terminated the call when you threatened her. You then stole a PlayStation 4 and Virtual Reality headset which were on a set of drawers, and told the victims they could call police and that you did not care. You fled the scene. You were inside their unit for about 4 minutes.

4 You were arrested and interviewed the next day but not charged. You handed yourself into Mildura Police on 27 November 2020 and were remanded in custody. The matter resolved by way of a guilty plea entered at committal mention on 23 February 2021. You were granted bail at that time and released on 26 February 2021. You have served 91 days of pre-sentence detention relevant to this offending.

5 You were supported at the plea hearing (by video link from the Mildura Magistrates’ Court) on 7 July 2021 by your solicitor and your longstanding Youth Justice case manager, Rebecca Pettitt, who has known you since 2013. Ms Pettitt gave evidence in court about your difficult background, specific problems, and experiences complying with court orders. I will return to what she said in a moment.

6 The prosecution tendered an Amended Summary of Prosecution Opening, the Victim Impact Statement of Lucas Hallam and CCTV footage of you entering the premises on 23 November 2020. The prosecution also relied on Sentencing Submissions filed with the Court.

7 In his Victim Impact Statement, Mr Hallam wrote that he has long standing mental health issues. However, since your offending he has had trouble sleeping, no longer feels safe at home or when leaving home, and has had serious panic attacks. He has had to have tests on his heart to rule out any stress-related heart problems. His psychological state has deteriorated to the point where he needs therapy again.

8 Your counsel tendered a number of reports. First, there was the psychological report of Mr Jeffrey Cummins dated 27 May 2021, which was prepared specifically for this plea. Second, there were earlier reports prepared for other court proceedings: a letter from John Bridgfoot to you dated 23 September 2019 indicating your eligibility to receive support through MACNI (Multiple and Complex Needs Initiative); a Psychological Risk Assessment Report by Psychologist Jacqui Brown dated 17 September 2019; a report from Child Psychiatrist, Dr Alberto Veloso dated 22 April 2020; and an Application and Disposition Report by DHHS Child Protection personnel Maggie Austin and Wanda Thomson dated 15 May 2020.

9 Your personal circumstances were set out in the psychological reports listed above, and may be summarised as follows.

10 You are the third child born to your parents but have a number of half-siblings. You have an intellectual disability, with a Full Scale IQ of 56, and the intellectual function of a child aged between 6 and 8. You have limited insight into your disability.^[2]

11 Your early childhood was extremely chaotic, as your parents separated when you were young, and Child Protection became involved when you were only 15 months old and your mother attempted suicide. There were numerous notifications relating to concerns of parental substance abuse, parental mental health issues, allegations of sexual abuse and inappropriate sexual behaviour between siblings (some of whom also had intellectual disabilities). You struggled in primary school with schoolwork and were frequently absent. You displayed challenging behaviours.

12 In 2015, when you were 13, your mother could not manage you and sent you to live with your father. He could not manage you and after a brief stay with your sister, you came under the care of the Department of Health and Human Services. You were ultimately placed on a Care by Secretary Order and sent to a residential unit in Mildura.

13 Initially you coped well but then fell into a pattern of emotional dysregulation leading to conflict with residents and staff and criminal behaviour. You did not attend secondary school and were unable to participate in alternative education or even structured day programs due to your behaviours. You have an extensive history of self-harming and suicidal ideation, and your mental state has seriously deteriorated at times when you abused alcohol, cannabis and methamphetamine. You were placed in secure welfare on 6 occasions whilst in care. You also engaged in a number of sexually abusive behaviours whilst residing in residential care. A number of teams attempted to engage you in counselling and mental health support but failed to do so. However, when you were assessed by Ms Brown in September 2019, you were able to explain to her that sometimes when you got angry you felt unable to control yourself or your actions.^[3] You told her that you had been hearing voices since you started using methamphetamine, and also stated you were “only a bad person on drugs”.^[4]

14 Your prior offending as a teenager began in early 2017 and includes over 20 appearances in the Mildura Children’s Court for offences including criminal damage and property damage, theft, robbery, home invasion, aggravated burglary, unlawful assault, and threats to inflict serious injury. You have also committed driving offences, offences against the Bail Act, and have contravened a number of court orders.

15 Mr Cummins described you as presenting as being mildly intellectually disabled and as moderately depressed. Due to your criminal offending, he diagnosed you as suffering from an Oppositional Defiant Disorder of at least moderate severity.^[5] He felt that whilst you were able to talk, you often sat mute and declined to elaborate on any history of trauma. He felt that your presentation was that of “someone who is very likely to have a history of traumatisation”.^[6]

16 Dr Veloso also felt that your presentations to emergency departments did not occur due to psychosis but rather to symptoms of response to trauma. He felt that you presented to him as depressed. When he saw you, you were being medicated with medication including anti-psychotic medication Quetiapine which you reported as helpful. Dr Veloso felt that the voices and images you have of people swearing at you is a “result of hyperarousal when feeling abandoned when you are alone”.^[7] You were able to reflect that you take drugs to cope with your emotions but that you know they are not good for you. Dr Veloso concluded that you can think clearly when not intoxicated and that you need stable accommodation and a stable care system. Ideally, your therapy would involve a person who can provide outreach care as well as workers to assist you over time.

17 Your transition into independent living on 31 January 2020 after you turned 18 has been a very challenging period for you. There have been frequent emergency attendances at hospital in the context of self-harm and mental health crises. However, it seems that once the emergency is over, you do not attend follow-up appointments, and avoid therapeutic counselling. You also continued to offend by committing property damage and assault.

18 You have a guardian from the Office of the Public Advocate and State Trustees manages your finances. You are a client of NDIS, and receive a Centrelink disability allowance. You are also a client of the Multiple and Complex Needs Initiative (MACNI) through Child Protection. You were supposed to receive forensic psychological assessment and treatment from Dr Astrid Birgden, but there is no evidence that this has taken place.

19 When you spoke to Mr Cummins, you expressed remorse for the current offending, which you said occurred while you were addicted to methamphetamine and had taken an overdose of Seroquel. You said you were upset that your former girlfriend was refusing contact with you.

20 In September 2019, Ms Brown assessed you using tools appropriate to your age. She concluded that you were a high risk of future violence, a moderate risk of future sexual violence, and a high risk of self-harm. She felt that your risk of general offending was greater in the context of heightened emotion or drug abuse. In April 2020, Dr Veloso considered that your risk of aggression or harm to others was low but could change quickly. In May 2021, Mr Cummins assessed you as moderate to high risk of committing further violent offences, and that you have very few protective factors to help you reduce that risk, apart from your positive and longstanding engagement and attachment to Ms Pettitt, your Youth Justice worker, with whom you are comfortable talking about your life. He felt that it is imperative that you participate in an anger management program suited to your level of intellectual functioning.

21 Ms Pettitt gave evidence that, in spite of being entitled through these programs to a great deal of support – to shop, attend appointments, engage in programs and therapy, receive home visits and so on – you are receiving no support at all due to staff shortages in Mildura. She and the MACNI coordinator have taken it upon themselves to visit you a few times per week to check up on you, and they do so voluntarily in addition to their work duties, which do not include support of adults in the community.

22 Ms Pettitt said that you have a past history of compliance with Youth Justice Plans, and that you engaged in weekly supervision. She said anger management programs had not been available to you in the past but that you would benefit from such a program as well as from counselling for your substance abuse. Ideally, that counselling would be one on one with a counsellor. She said that, at times, you just wanted to stay at home and would not independently engage in the recommended activities and needed help to attend appointments.

23 Ms Pettitt said that for the past 8 weeks you have been managing quite well in relation to shopping, cooking and maintaining your unit. Your counsel noted that you have no contact with your parents or siblings, and no friends. You rely on Ms Pettitt for support and assistance.

24 It was submitted on your behalf that the appropriate disposition was that of a Community Correction Order with a Justice Plan. The prosecution sought that you be assessed for a Youth Justice Centre Order. Ultimately, the prosecution submitted that a combined sentence was an appropriate disposition.

25 The Pre-Sentence Report provided by Youth Justice dated 16 August 2021 indicates that you are opposed to such an Order being made. In relation to your conduct whilst on probation for other offending and during the period between your plea and your sentence, it was noted that you had not been home on many occasions when there were planned meetings with your support workers, and that you had refused to attend substance abuse counselling in the company of your care team.

26 On 11 August 2021, you were assessed as suitable to undergo a Community Correction Order with conditions of unpaid work, supervision and a Justice Plan. It was noted that, under the Justice Plan, you would be referred to a forensic psychologist for behaviour support.

27 On 24 August 2021, the Justice Plan filed with the Court indicated that you have complex needs and a large care team from various departments. The services provided to you will require careful coordination. It was noted that you may benefit from participating in programs to assist you in managing your emotions and behaviour as well as your use of drugs, and that participation in these programs will help reduce the risk of your reoffending. I note that you are keen to access the community and to obtain employment, and that your NDIS plan (which was reviewed in June this year) will continue to support these goals through providing ongoing funding for assistance in your day-to-day activities of daily living, your participation in recreation, your behaviour and as required, with your communication needs.

28 A Disability Overview Report dated 24 August 2021 noted that you require support to attend to your personal care and hygiene, to keep a safe and clean environment, and to manage your frustration and anger when your needs are not met. Unfortunately, although you had a MACNI care plan in early 2019, all the previously engaged disability support agencies had declined to support you due to your assaults of staff and property damage to staff cars. So while NDIS funding may be in place, no providers are currently willing to provide you with daily supports. At present, efforts are being made to see whether disability support can be sourced from South Australia, but this is being complicated by current border restrictions.

29 The purposes of sentencing include denunciation, just punishment, specific and general deterrence, protection of the community and rehabilitation.^[8] The principle of parsimony requires that imprisonment be imposed as a last resort. Ordinarily, on the authorities, given the maximum penalty which attaches to the offence of aggravated burglary, offenders can expect to be sentenced to a substantial term of imprisonment.^[9] Less weight is to be given to the youth of an offender because of the seriousness of this offence.^[10] However, where an offender has an intellectual impairment, mental illness and/or and comes from circumstances of appalling disadvantage, moral culpability for the offending may be reduced.^[11] In such cases, specific and general deterrence may play less of a role than they would if the offender did not have the impairment/suffer the deprivation. On the other hand, where an offender demonstrates an inability to control their anger or frustration, “full weight” to his deprived background has to be tempered with the need to protect the community from that offender.^[12]

30 At the time of the offending, you were on a Probation Order imposed by the Mildura Children’s Court on 29 October 2020. You were affected by methylamphetamine and had taken an overdose of Seroquel. The prosecution submitted that your offending should be assessed as a mid-range example of aggravated burglary. However, I note that the offending was unplanned, committed in daylight hours, in full view of CCTV cameras, without any attempt to disguise your identity, against a person known to you who you believed had “snitched” on you to police, and lasted only four minutes. I therefore consider that, objectively, your conduct constitutes a low to mid-range example of this type of offence.

31 I agree with your counsel that in the light of your intellectual disability, Oppositional Defiant Disorder, and appallingly disadvantaged background and their impact on your emotional self-control,^[13] all of the limbs in Verdins^[14] are enlivened. For this reason, I consider that your moral culpability for the offending is low, so that denunciation and just punishment have a reduced role to play in determination of sentence. In addition, general and specific deterrence carry less weight than would otherwise be the case. Mr Cummins’ opinion is that further periods of imprisonment will only entrench or worsen your behavioural and anger management problem and your mental health.

32 I accept all the matters put on your behalf by way of mitigation: you handed yourself in to police, pleaded guilty at an early stage, and expressed remorse to Mr Cummins for your offending. You are entitled to a discount in sentence because you have pleaded guilty at an early stage, thus saving the community the expense and inconvenience of a trial. You have also expressed remorse over and above the remorse inhering in your plea of guilty. As your plea has been made during the currency of the Covid-19 pandemic, you are also entitled to a further amelioration of sentence.^[15]

33 I note that you spent the last three months of your previous sentence in an adult prison, Ravenhall, which has no youth unit, and where you were very frightened.

34 In formulating the appropriate disposition, I note that you have never had the opportunity to undergo a CCO and are willing to do so, that you are opposed to a Youth Justice Centre Order, and that imprisonment would weigh more heavily on you than it would on a person without your impairments. I accept Mr Cummins’ opinion that due to your intellectual impairment and Oppositional Defiant Disorder, incarceration will simply entrench your mental health problems and your issues with anger, aggression and traumatisation.

35 In these circumstances, notwithstanding that your prospects of rehabilitation are guarded, particularly in circumstances where, to date, disability service providers have withdrawn their services due to your conduct, I consider that protection of the community will be best assured if you are given the opportunity, whilst in the community, to engage with the appropriate mental health and behavioural treatment.

37 On all charges before me, you are convicted and sentenced to 91 days’ imprisonment and an aggregate 2-year Community Correction Order (“CCO”). Supervision and a Justice Plan condition are attached to the Order. I declare that 91 days of pre-sentence detention are to deducted administratively from this sentence.

38 You will need to report to Mildura Community Correctional Services within two working days. Because of the restrictions introduced in response to the Covid-19 pandemic, that will be by telephone.

39 The mandatory conditions of the order include that you must not commit any other offences during the period of the CCO - that is, 2 years from today - for which you could be imprisoned, even if a court would not choose to impose imprisonment in relation to those offences. You must not leave Victoria without first getting permission to do so from a Corrections officer, you must obey all lawful instructions from and the directions of Corrections officers, and you must report to and receive visits from a Corrections officer. Finally, you must notify a Corrections officer of any change of address or employment within 2 clear working days after the change. Do you understand all the conditions I have imposed and the general terms that apply?

40 Your counsel will explain the order to you in more detail. You must make sure that you comply with the order because if you breach a condition of the order, aside from a direction of the Secretary, that is an offence punishable by 3 months’ imprisonment. You will then be dealt with for breaching the order, but will also be exposed to the possibility that you will be brought back and re-sentenced for the original offending. If you are re-sentenced, you may be sentenced to a term of imprisonment. Do you consent to the making of a CCO?

41 I declare pursuant to s 6AAA of the Sentencing Act that, if you had not pleaded guilty to the charges and if you had been found guilty of the charges by a jury, I would have convicted you and imposed an aggregate sentence of 12 months’ imprisonment followed by a 2-year CCO in relation to all charges.

^[1] I note that you served a period of 3 months’ imprisonment from 1 April 2021 for unrelated offending.

^[2] Report of Ms Jacqui Brown dated 17 September 2019 [29]; Report of Mr Jeffrey Cummins dated 27

County Court of Victoria

DPP v Ferguson-Dolan [2021] VCC 1212 (27 August 2021)