Ferguson v Smorhun - [2017] ACTSC 192

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Ferguson v Smorhun
Citation:	[2017] ACTSC 192
Hearing Dates:	24 July 2017; 25 July 2017
DecisionDate:	25 July 2017
Before:	Penfold J
Decision:	1. The appeal is dismissed. 2. The remainder of the disqualification order is to run from 25 July 2017 until 19 July 2018.
Catchwords:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – appeal against conviction and sentence for drug-driving offence – appellant sentenced on plea of guilty – new claims about explanation for offence – no evidence offered for claim that cannabis and methylamphetamine baked into birthday cake by appellant’s family without appellant’s knowledge – conviction appeal dismissed – whether sentence is manifestly excessive – sentence was most lenient sentence available except for non-conviction order – evidence admitted on appeal of appellant’s background and contribution to the community – sentence not manifestly excessive. APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – appeal and consequent stay of disqualification order not notified by Court Registry to Road Transport Authority or ACT police – appellant charged with driving while disqualified while appeal on foot – appellant claimed not to have driven during most of period while appeal on foot – no scope for backdating disqualification period – remaining term of disqualification period specified having regard to period served before appeal filed.
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), ss 17, 18, 18(2), 33(1)(m) Magistrates Court Act 1930 (ACT), s 216
Cases Cited:	Giachin v Sandon [2013] ACTSC 77; 276 FLR 180
Parties:	Paul Ferguson (Appellant) Nathan Robert Smorhun (Respondent)
Representation:	Counsel Unrepresented (Appellant) Mr M Howe (Respondent)
Solicitors Unrepresented (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 11 of 2017
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 27 January 2017 Case Title: Smorhun v Ferguson Court File Number: CC16/5499

Introduction

Paul Ferguson has appealed against orders made in the Magistrates Court on 27 January this year. That day, he appeared represented by a lawyer from the Aboriginal Legal Service. The Magistrate convicted Mr Ferguson, on a plea of guilty, of an offence committed on 2 May 2016, being that, as a repeat offender, he had a prescribed drug (cannabis and methylamphetamine) in his oral fluid within the relevant period after having been the driver of a motor vehicle on the road. The Magistrate made a 12-month good behaviour order with a supervision condition and disqualified Mr Ferguson from driving for 12 months.

The maximum penalty for the offence was 25 penalty units, which is equivalent to a $3,750 fine, and 3 months imprisonment. Conviction also carries an automatic driving disqualification, which in default of a specific order is for 5 years, but which can be reduced by the court to a shorter period not less than 12 months.

Notice of appeal

Mr Ferguson prepared his own notice of appeal, and perhaps for that…

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 Smorhun

Details

AGLC: Ferguson v Smorhun [2017] ACTSC 192
Case: [2017] ACTSC 192
Decision Date: 25 July 2017

CaseChat Overview and Summary

The appellant, Ferguson, appealed against his conviction and sentence for drug driving, arguing that the evidence did not support the claim that the drugs found in the vehicle were baked into a birthday cake without his knowledge. The appeal was heard in the Court of Appeal of the Supreme Court of the Australian Capital Territory. The appellant had pleaded guilty to the offence but sought to challenge the conviction on the basis that there was no evidence to support the explanation for the presence of the drugs. The court was also required to determine whether the sentence imposed was manifestly excessive.

The court found that there was no evidence to support the appellant's claim that the drugs were baked into the cake by his family without his knowledge. The court rejected the argument that the sentence was manifestly excessive, noting that the sentence imposed was the most lenient sentence available except for a non-conviction order. The court considered evidence of the appellant's background and contributions to the community in determining the appropriate sentence. The court also noted that the appeal and consequent stay of the disqualification order were not notified to the relevant authorities, resulting in the appellant being charged with driving while disqualified during the appeal process. The court determined that the remaining term of the disqualification period should run from the date of the appeal until a specified date in 2018.

The appeal was dismissed, and the remainder of the disqualification order was to run from 25 July 2017 until 19 July 2018. The court found that the appellant's claims about the explanation for the presence of the drugs in the vehicle were not supported by evidence. The court also found that the sentence imposed was not manifestly excessive, and that the appellant's background and contributions to the community were appropriately considered in determining the appropriate sentence. The court noted that the appellant had been charged with driving while disqualified during the appeal process due to the failure of the court registry to notify the relevant authorities of the appeal and stay of the disqualification order. The court determined that the remaining term of the disqualification period should run from the date of the appeal until a specified date in 2018.

Orders

Orders of the court

1. The appeal is dismissed.

2. The remainder of the disqualification order is to run from 25 July 2017 until 19 July 2018.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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