Ferguson v R - [2001] TASSC 20

[2001] TASSC 20

CITATION: Ferguson v R [2001] TASSC 20

PARTIES:  FERGUSON, John Henry
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 95/2000
DELIVERED ON:  7 March 2001
DELIVERED AT:  Hobart
HEARING DATES:  6 March 2001
JUDGMENT OF:  Underwood, Slicer and Evans JJ

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Miscellaneous matters - Other matters - Absence of remorse - Effect on sentence.

R v Hryczszyn [1976] Tas SR 10; Pavlic v R (1995) 5 Tas R 186, applied.
Aust Dig Criminal Law [851]

REPRESENTATION:

Counsel:
           Appellant:  S J N Brown
           Respondent:  T J Ellis
Solicitors:
           Appellant:  Clarke & Gee
           Respondent:  Director of Public Prosecutions

Judgment Number: [2001] TASSC 20
Number of Paragraphs: 21

Serial No 20/2001
File No CCA 95/2000

JOHN HENRY FERGUSON v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
SLICER J
EVANS J
7 March 2001

Orders of the Court

The order of sentence of 21 months' imprisonment to take effect from 26 October 2000 is quashed.

In lieu thereof, there will be a sentence of nine months' imprisonment to commence on 26 October 2000.

Serial No 20/2001
File No CCA 95/2000

JOHN HENRY FERGUSON v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
SLICER J
EVANS J
7 March 2001

The appellant was arraigned on an indictment containing three counts of indecent assault and two counts of unlawful sexual intercourse with a person under the age of 17 years. He pleaded not guilty.

Shortly stated, the Crown case on count 1 was that on an occasion towards the end of 1996, the appellant indecently assaulted the complainant, then aged 15 years, by fleetingly touching her breasts whilst giving her a massage. With respect to counts 2 and 3, the Crown case was that about a month or so after the events charged by count 1, whilst in his car, the appellant firstly indecently assaulted the complainant by touching her breasts and sucking her nipples, and immediately thereafter had sexual intercourse with her. With respect to the remaining two counts, the allegation was that a similar indecent assault, followed by sexual intercourse, took place in the complainant's flat when she was aged 15 years and three months.

Upon his trial, the appellant was found not guilty of the first and the last two counts on the indictment, but guilty of counts 2 and 3. The learned trial judge sentenced the appellant to 21 months' imprisonment. This appeal is against that sentence upon the ground that (inter alia) the sentence was manifestly excessive.

The learned Director of Public Prosecutions, who appeared as counsel for the respondent on the appeal, conceded that the sentence was manifestly excessive. The Court is indebted to him for making that helpful and appropriate concession although, of course, whether a sentence should be quashed is ultimately a matter for the Court and…

Grounds of appeal

[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.

Continue reading Ferguson v R

Details

AGLC: Ferguson v R [2001] TASSC 20
Case: [2001] TASSC 20
Decision Date: 7 March 2001

CaseChat Overview and Summary

In the Court of Criminal Appeal of Tasmania, John Henry Ferguson appealed against the sentence imposed on him for two counts of indecent assault and unlawful sexual intercourse with a minor. Ferguson was initially sentenced to 21 months' imprisonment. The appeal contested the sentence's excessiveness, a contention conceded by the Director of Public Prosecutions. The Court examined the circumstances surrounding the crimes, which occurred in 1996 when Ferguson, a police officer, took advantage of his position to assault a 15-year-old girl. The appellant's lack of remorse and his boastful conduct post-offense were noted as aggravating factors. However, the Court also considered the appellant's unblemished prior record, his distinguished police career, and the personal and professional repercussions of his conviction.

The Court meticulously weighed various factors, including the breach of trust, the appellant's career and personal life being jeopardized, and the absence of premeditation. While acknowledging the gravity of the offenses, the Court deemed the original sentence disproportionate. Ultimately, the Court reduced the sentence to nine months' imprisonment, effective from the original commencement date of 26 October 2000. This decision reflects the Court's careful balancing of aggravating and mitigating factors in determining an appropriate sentence.

Orders