(3) Grant leave to appeal in respect of grounds 2 and 3.
(4) Dismiss the appeal.
Sentence appeal:
(5) Grant leave to appeal.
(6) Uphold the appeal.
(7) Quash the sentence imposed in the District Court on 5 August 2022.
(8) In lieu thereof, sentence the appellant as follows:
(a) For the offence in count 4, a sentence of 18 months imprisonment with a non-parole period of 12 months, to date from 5 August 2022, such that the non-parole period expired on 4 August 2023 and the sentence expired on 4 February 2024.
(b) For the offence in count 7, impose a Community Correction Order of 6 months duration, to commence on 31 May 2024 with the standard conditions, pursuant to s 88 of the Crimes (Sentencing Procedure) Act not to commit any offence, and to appear before the court if required to do so at any time during the term of the order.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Ferguson v R [2024] NSWCCA 81
Case
[2024] NSWCCA 81
Decision Date
CaseChat Overview and Summary
Benjamin Ferguson appealed against his conviction and sentence, brought before the Court of Criminal Appeal by the Crown. The applicant was convicted by a jury of one count of aggravated sexual act towards a complainant and one count of aggravated sexual touching contrary to ss 61KF and 61KD of the Crimes Act 1900 (NSW). The applicant was sentenced to imprisonment for 2 years 4 months with a non-parole period of 1 year 3 months expiring 4 November 2023. The applicant's appeal grounds challenged the conviction and sentence on various bases. The appeal against conviction was dismissed. The appeal against sentence was upheld. The applicant was re-sentenced to 18 months' imprisonment with a non-parole period of 12 months for count 4 and a Community Correction Order of 6 months' duration for count 7. The applicant's convictions were quashed and the new sentences substituted.