IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	
Case No CR-19-00989

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
DALLAS KAINE FERGUSON		

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JUDGE:	HIS HONOUR JUDGE WRAIGHT	
WHERE HELD:	Melbourne	
DATE OF HEARING:	11 May 2020	
DATE OF SENTENCE:	11 May 2020	
CASE MAY BE CITED AS:	DPP v Ferguson	
MEDIUM NEUTRAL CITATION:	[2020] VCC 595		

REASONS FOR SENTENCE
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Subject:			CRIMINAL LAW
Catchwords: 			 Plea of guilty – One charge of trafficking in a drug of  dependence – One charge of possession of a drug of dependence – One charge of dealing with property suspected of being the proceeds of crime – No prior  criminal history at time of offending – Offender’s diagnosis and treatment for cancer whilst on remand taken into account – Delay – Consistent work history – Reasonably good prospects of rehabilitation. 
Legislation Cited:		 Drugs, Poisons and Controlled Substances Act 1981; Crimes Act 1958; Sentencing Act 1991.
Cases Cited:		
Sentence:			Imprisonment for a period of 272 days and a fine of $1500. 

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Ms S Coombes	Office of Public Prosecutions	
			
For the Accused	Mr G Chisholm	Balmer & Associates	

HIS HONOUR:

Introduction
1.	Dallas Kaine Ferguson, you have pleaded guilty to one charge of trafficking in a drug of dependence contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 which carries a maximum penalty of 15 years imprisonment (Charge 1), and one charge of possession of a drug of dependence, contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 which carries, in this instance, a maximum penalty of one year imprisonment (Charge 2).  You have also pleaded guilty to one related summary charge, dealing with property suspected of being the proceeds of crime, contrary to s 195 of the Crimes Act 1958, which carries a maximum penalty of two years imprisonment.  
2.	You have no prior criminal history.
Circumstances of the offending
3.	A prosecution opening was tendered on the plea and may be summarised as follows:  the charges arise from Operation Dreggier-2017, a major drug investigation conducted by the Victorian Police Mallee Divisional Response Unit which commenced in October 2017.  Operation Dreggier-2017 targeted you and your long term friend Taylor Stewart who you have known for approximately 15 years, as well as four other related persons - Jayden Ireland, Leasha Eastwood, Jackie Foster and Nerissa Johnston.  On 29 September 2017, you and Mr Stewart booked accommodation in your name at the Chaffey Motor Inn at 244 Deakin Avenue, Mildura.  Bank statements obtained show a purchase of $605 from Mr Stewart’s bank account to the Chaffey Motor Inn on 29 September 2017 and the remaining $130 balance was paid in cash.  You checked out on 2 October 2017.
4.	On 13 October 2017, you and Mr Stewart booked accommodation in your name at the River City Motel located at 830 Fifteenth Street, Mildura.  You and 
Mr Stewart stayed at the motel between 13 and 16 October 2017.  The account of $375 was paid in cash.
5.	On 18 and 19 October 2017 your vehicle, a red Kia sedan registration POV 751 was observed parked outside 57 Game Street, Merbein, Mr Stewart’s home address.  On 19 October 2017, you were observed coming and going between the house and the vehicle.  You were observed on one occasion to sit in the vehicle for five minutes before going back into the house.
6.	You eventually left the address and attended a cabin at the Golden River Holiday Park at Flora Avenue, Mildura, located on a main road connecting Mildura and Merbein.  You stayed at the cabin for approximately 15 minutes before leaving with two or three other unknown people.  Your bank statement shows transactions at the Golden River Holiday Park on 13, 15 and 
21 October 2017. 
7.	On 20 November 2017, police attended 57 Game Street, Merbein, in relation to a car fire outside the address.  The vehicle was your red Kia sedan.  You spoke to attending members on the night and stated that the cigarette lighter had been sparked in the days leading up to the fire and believed it to be the cause.  The blaze started inside the vehicle but its cause could not be determined.
8.	On 7 December 2017, at approximately 2.46pm, investigators received information that you had left the Mildura region and were travelling south from Mildura to Ouyen.  At approximately 5.10pm your vehicle was intercepted by police.  You were driving the vehicle, Ms Eastwood was sitting in the front passenger seat and Mr Ireland was sitting in the rear passenger seat.
9.	A search of your vehicle was conducted and police located on top of 
Ms Eastwood’s handbag a locked case containing three sandwich sized snap lock bags containing a white crystal substance, later examined by a drug analyst to be a substance weighing 96.6 grams containing methylamphetamine, with a purity of 72 grams.  It is these facts that relate to Charge 1, trafficking in a drug of dependence.
10.	A search of your personal belongings located $1,455 cash.  It is these facts that relate to the related summary charge, Charge 3, dealing with property suspected of being the proceeds of crime.
11.	You were arrested and conveyed to the Mildura Police Station for interview. You admitted to driving the vehicle and stated that you had known Mr Stewart since you were a child.  You denied ownership of the vehicle and gave ‘no comment’ answers in relation to allegations of trafficking drugs.
12.	Police later located in the rangehood at your property a sandwich sized snap lock bag containing cannabis in the amount of 24.3 grams.  There was no evidence that the cannabis was for the purpose of sale.  It is these facts that relate to Charge 2, possession of a drug of dependence.
13.	Ms Foster, Ms Johnstone, Ms Eastwood and Mr Ireland were also arrested by police in relation to drug offences arising from Operation Dreggier-2017.  They pleaded guilty and have since been sentenced.
Nature and gravity of the offending
14.	Trafficking in a drug dependence is a serious offence which is reflected in the maximum penalty of 15 years imprisonment.  In this instance the amount of methylamphetamine that you were found with was 72 grams pure or 96.6 grams mixed.
15.	The commercial quantity in relation to methylamphetamine is 50 grams pure or 250 grams mixed however, it is not submitted by the prosecution that you had the requisite knowledge to establish a commercial quantity charge.  That said, clearly the amount of methylamphetamine in your possession is significant in the context of a trafficking simpliciter charge and by your plea, you admit that it was in your possession for the purposes of trafficking. 
16.	The operation as outlined in the summary above clearly involved in number of other persons.  The details in relation to others who were involved (including the sentences they received) are provided as background in the prosecution summary.  While it is clear that the police were targeting a number of people operating in the Mildura area, the focus in this instance was on you and your co-offender Taylor Stewart.  Thus the movements of you and Mr Stewart leading up to the time that you were both arrested have been detailed in the summary.
17.	While I do not use the background facts of your activity to aggravate your offending, it is evident by your plea you accept that you were involved in the business of trafficking, which clearly was for profit.  The related summary charge of being in possession of $1,455 which you accept is the proceeds of crime is also a matter supporting the commercial nature of the trafficking.  Further, while your trafficking was not at the highest level, the business of trafficking drugs necessarily involves people at different levels in order for it to continue and as such, in the circumstances your offending in my view is still serious.
18.	It is trite to say that the use of methylamphetamine causes significant harm to individuals and communities.  It is an insidious drug that destroys lives and encourages illegal activity related to the supply and use of the drug.  You perpetuated that illegal activity and contributed to its ongoing use in a regional Victorian community.
19.	As to the cannabis charge, it is accepted by the prosecution that the amount of cannabis that you had in your possession was not for the purposes of sale.
Personal circumstances
20.	You are 37 years of age and were 34 years of age at the time of the offending.
21.	You are currently living with your parents in Kangaroo Flat.  Your mother works as a cleaner and your father is on a disability pension.  You have five brothers and a sister, none of which have been involved in the criminal justice system.
22.	You completed Year 10 and then commenced a motor mechanics apprenticeship which you did not complete.  Nonetheless, you have demonstrated a consistent work history through your twenties and thirties despite struggling with a drug habit throughout the same period.
23.	During your twenties and thirties your employment has included working with housing construction companies and with the railways.
24.	You began using marijuana at age 16, leading to heavy use by the time you were 19.  You began to use harder drugs in your twenties, including ice.  You were able to maintain your employment through your twenties and thirties despite your drug use, however from about September 2017 up until the time of your arrest, you had progressed to injecting ice and thus it was submitted that while you were trafficking, it was in the context of a serious drug addiction.
25.	Following your arrest in relation to this matter you spent some nine months in custody before being released on bail on 4 September 2018.  During that nine months in custody you undertook a number of courses in order to provide you with some better opportunities upon your release.
26.	While at the time of this offending you had no prior criminal history, you have had some subsequent involvement in the criminal justice system.  On 
14 January 2019, you were arrested and remanded in custody in relation to possessing methylamphetamine and other drugs and on 25 January 2019, you were sentenced to a 12 month community correction order.  At that time, you had spent some 41 days in custody which were not formally declared.  The 12 month order had therapeutic conditions attached to it including mental health treatment and assessment and treatment in relation to your drug addiction.  You successfully completed that community correction order and there has been no further offending since.
27.	Since your release from custody the second time, you have had employment for some of that time and are actively seeking further employment.
28.	You have also been in a relationship for the past 18 months.  Your partner has three children and you have developed a role as their stepfather.  The relationship is positive, and you plan to move in with your partner and her children once you have enough money to be able to obtain suitable accommodation together.
Relevant sentencing considerations
29.	I take into account your plea of guilty.
30.	The matter resolved at the contested committal on 23 May 2019 prior to any witnesses being called.  As the prosecution originally charged you with trafficking in a commercial quantity you sought to challenge that charge.  Following a period of negotiation, you offered to plead guilty to the charges on the indictment which was accepted by the prosecution on the day of the contested committal.  As such, it was submitted that your plea should be regarded as a plea at the earliest opportunity.  I accept that your plea in the circumstances is an early plea.  It has avoided the need to have any form of contested hearing and as such has saved the court and the community the time and expense of a trial.
31.	It was also submitted on your behalf that there has been a significant delay which should be taken into account in your favour.  But for a period of approximately two months when you were unrepresented, it appears that there has been delay as a result of a number of adjournments and other administrative delays, none of which were attributable to you.  Ultimately, the delay between the date of the offending and the resolution in May 2019 was some 17 months.  In total it is now 29 months since the original offending.
32.	In the period of time that it has taken to resolve this matter you have committed further offending.  However, it was also submitted on your behalf that while this is an unfortunate aberration it seems to be linked to your addiction to drugs, in that time you successfully completed a community correction order.  Thus, during the period of delay, you have sought to address the reasons which ultimately led to your poor decision-making and offending behaviour including your drug use.  Further, there has been no further offending for some 
16 months.
33.	The nine months you did spend in custody it was submitted weighed heavily on you.  The reason for this was twofold.  First, it is your first time in custody and second, during that time in custody you were diagnosed with testicular cancer.  As such while in custody you had to go undergo a number of procedures including having one of your testicles removed and having to undergo chemotherapy.  Clearly going through these procedures in custody would be more difficult than if you were in the community and I accept that it is a matter that I can take into account.
34.	It was submitted that your prospects of rehabilitation should be assessed positively.  Following your arrest on these matters and your ultimate release, you fell back into drug use which led you to the further offending.  However, following that offending as noted above, you successfully completed a community correction order which has assisted you in addressing your drug addiction.  Only time will tell if the progress you have made is able to be sustained however it would appear that you have actively sought to rehabilitate yourself by engaging in employment when available and you are committed to a relationship which has provided you with more motivation to remain drug free.  In the circumstances your prospects of rehabilitation in my view are able to be assessed as reasonably good.
35.	As noted above, trafficking in methylamphetamine is serious offending which has a detrimental effect on individuals and communities.  As such, general deterrence must be the primary sentencing consideration.  Others need to be sent a message that trafficking in drugs of that nature will result in stern punishments including gaol terms.  Just punishment and denunciation of your conduct are also relevant considerations.
36.	In my view some weight also needs to be attached to specific deterrence.  As you well know, conquering a drug addiction is difficult and relapses occur which in your case resulted in you spending a further period in custody.  Thus, in my view some weight needs to be attached to specific deterrence in the sentencing discretion.
37.	Ultimately, the sentencing submission on your behalf was that the time you have already spent in custody, which is approximately nine months, is an amount of time which is able to meet the relevant sentencing considerations in all the circumstances.  In my view it is also relevant to take into account what you have done since your time upon release.
38.	It would seem to me that you are actively involved in continuing your rehabilitation which commenced in custody and was enhanced by the community correction order which you completed.  As noted, while there was a setback, you have remained drug and crime free for a sustained period and committed to engaging yourself in the workforce and becoming a contributing member of the community.  Thus, in all the circumstances in my view, I accept that the time you have spent in custody is sufficient to meet the relevant sentencing considerations in relation to the trafficking charge.  Charge 2 and the related summary charge can in my view be dealt with by way of a monetary penalty.
Sentence
39.	Mr Ferguson, please stand.
40.	Dallas Kaine Ferguson, on Charge 1, trafficking in a drug of dependence, you will be convicted and sentenced to 272 days in custody, the intention being that you have completed your sentence on that charge.
41.	On Charge 2, possession of a drug of dependence and related summary Charge 3, dealing with the proceeds of crime, you will be convicted and fined an aggregate of $1500.
42.	Pursuant to s 18 of the Sentencing Act 1991, I declare that 272 days will be reckoned as the period of imprisonment already served under the sentence I have imposed.
43.	Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 14 months imprisonment.
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