Regina v Ferguson & Williams [1999] NSWCCA 214

New South Wales Court of Criminal Appeal CITATION : Regina v Ferguson & Williams [1999] NSWCCA 214 FILE NUMBER(S) : CCA 60787/98; 60788/98 HEARING DATE(S) : 27 May 1999 JUDGMENT DATE : 27 May 1999

PARTIES : Regina v Marcus Charles FERGUSON and Steven WILLIAMS JUDGMENT OF : Spigelman CJ at 34 & 36; Greg James J at 35; Smart AJ at 1-33

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/51/0066 98/51/0067 LOWER COURT JUDICIAL OFFICER : J B Phelan DCJ

D N Howard for the Appellant COUNSEL : P M Strickland for the Respondent Ferguson J C Nicholson SC for the Respondent Williams SOLICITORS : C K Smith for the Appellant T.A. Murphy for the Respondents CATCHWORDS : Criminal Law; sentencing appeal by Crown; full-term sentences within permissible range; minimum terms not challenged. ACTS CITED : -Nil- CASES CITED: -Nil- DECISION : Crown Appeals dismissed.

- 15 - IN THE COURT OF CRIMINAL APPEAL 060787/98 060788/98

SPIGELMAN CJ GREG JAMES J SMART AJ

THURSDAY 27 MAY 1999

REGINA v MARCUS CHARLES FERGUSON REGINA v STEVEN WILLIAMS

JUDGMENT 1 SMART AJ : The Director of Public Prosecutions has appealed against the sentences that were imposed on Marcus Charles Ferguson and Steven Williams, on the ground that they were inadequate. Each had pleaded guilty to a charge of inflicting grievous bodily harm on Michael Vincent Pisani with intent to do grievous bodily harm to him. Ferguson was sentenced to a minimum term of four years six months, with an additional term of three years six months. He was born on 31 May 1974. Williams was sentenced to a minimum term of four years, with an additional term of three years. He was born on 15 September 1966. Both men are Aborigines. 2 The sentencing judge was confronted with a mass of material, not all of which was consistent. There was considerable divergence as to the degree of provocation occasioned by the victim to the prisoners and the initial actions by him and them. 3 There was criticism of the lack of action by the publican, Mr Coutman, in conducting the hotel and stopping the fights that occurred in the hotel. The judge did not feel that he was able to accept the publican's statement in its entirety, although he did use substantial parts of it. It summarised the events which had occurred. The findings made by the judge were open to him and we must proceed on the basis of those findings. 4 The judge found that the prisoners went to the Wardell Hotel about noon on 13 December 1997, bought a crate of VB and left to drink the beer on the riverbank nearby, along with others. From time to time more beer was bought. About 5.00pm the prisoners returned to the hotel, obviously affected by alcohol. Thereafter spasmodic fighting broke out between Robbie Roberts and Sean Bolt. Tables and chairs were upended. The prisoners endeavoured to stop these men fighting and as a result the whole room was in chaos. 5 Sean and Robbie continued to fight and the prisoners joined in. The prisoners, using their fists, struck each other in the head and body area. People in the bar area screamed to stop the fighting but it became more and more violent. The publican tried to put an end to the fighting but he was told by Williams to get out of the way, or he would get some. He backed away and the prisoners kept punching each other and fighting. 6 The publican saw a blue land cruiser drive up on the footpath and stop outside the hotel door on Richmond Street. This was the victim's vehicle. Other witnesses saw the victim spin the vehicle and drive it up on to the footpath, outside the saloon bar, to within a couple of feet of the door. The victim ripped his shirt off, came inside the door and slammed his hat down on one of the round tables near the door. The publican, who was near the fighting, asked the victim what he was doing there and reminded him that he was barred from the hotel. The victim replied, " Christ Trev, I thought you needed some help ." The victim had been barred from the hotel twice, because he had been brawling. 7 The judge, preferring the statements of witnesses other than the publican, found that the victim went up to Ferguson, grabbed him and severely assaulted him. The descriptions of the assault vary. Miss Kelly thought that the victim gabbed Ferguson by the throat, punched him full in the face, knocked him to the ground, got on top of him and held him down with both hands around the throat. 8 Fiona Anderson thought the victim grabbed Ferguson by the hair and hit his head against the wall three or four times. Ferguson was crouched and Williams tried to pull the victim's hand away. The victim punched Williams. Williams and Ferguson punched the victim, who retaliated with punches. 9 Lisa Anderson said that she saw the victim with both his hands around Ferguson's head and pushing Ferguson's head back and banging it into the hotel wall a number of times. The precise details are not critical. The point is that the victim initiated matters by making a severe attack on Ferguson and then Williams became involved. 10 The judge found that there was next a frenzied attack by both prisoners on the victim. This attack continued for quite a period, probably about 15 minutes. Most of the time the victim was on the floor, with each of the prisoners stomping, kicking and jumping on him. 11 The prisoners suffered no significant injuries. The judge correctly described the nature of the assault as horrific. Grave injury was inflicted on the victim. Use was made of a pool cue. A bar stool was used to hit the victim over the head. Williams was persuaded by an Aboriginal lady to stop. He left the hotel. Ferguson continued with the assault and even stomped on the victim after the police had arrived. 12 The judge accepted the medical evidence that the victim was very fortunate to live. There were serious internal injuries. He almost bled to death. He underwent a laparotomy and had to be removed, from Lismore Base Hospital to Princess Alexandra Hospital in Brisbane, for further extensive care and surgery. 13 The judge accepted the report of 26 May 1998 of Dr Darbar, a general surgeon, which relevantly reads: "He sustained injury to the abdomen. He had a ruptured spleen, which was removed in Brisbane. He also had a left colostomy for a rupture of the large bowel and he had various laparotomies afterwards to control his intra-abdominal abscesses. In spite of all that he did not improve and he had a gaping wound in the abdomen, though his temperature was normal. He was not anaemic. The wounds on the abdomen started granulating very well and hence it was thought best to do split skin grafting on the granulating area, which was done forthwith. Before doing that surgery he had various abdominal CT scans to relieve the so called abscess on the right side of the abdomen, which was controlled without any antibiotics and the abscess disappeared completely. The patient did very well after the split skin grafting and his wound has healed very well and he has been transferred back to Gosford for further rehabilitation."