Ferguson v The Queen - [2019] NTCCA 11

CITATION:Ferguson v The Queen [2019] NTCCA 11

PARTIES: FERGUSON, Danny

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 26 of 2018 (21343913)
DELIVERED:  7 June 2019
HEARING DATE:  4 June 2019
JUDGMENT OF:  Grant CJ, Blokland and Hiley JJ
CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT

Northern Territory sentence fixed first in time but to be served second in time – appellant subsequently sentenced to imprisonment in South Australia – no account taken of South Australian sentence at time Northern Territory sentence imposed – whether Northern Territory sentence manifestly excessive – sentence set aside and appellant resentenced.
Criminal Code Act 1983 (NT) s 411

Betts v The Queen (2016) 258 CLR 420 at [10], Forrest v The Queen [2017] NTCCA 5, Gallagher v The Queen (1986) 160 CLR 392, Mill v The Queen (1988) 166 CLR 59, R v Vachalec [1981] 1 NSWLR 351 at 353, referred to.
REPRESENTATION:
Counsel:
Appellant:I Read SC
Respondent:  SA Robson
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  10

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Ferguson v The Queen [2019] NTCCA 11

No. CA 26 of 2018 (21343913)
BETWEEN:

DANNY FERGUSON

Appellant

AND:

THE QUEEN

Respondent

CORAM: GRANT CJ, BLOKLAND and HILEY JJ
REASONS FOR JUDGMENT
(Delivered 7 June 2019)
THE COURT:
[1]This is an appeal against sentence which arises in unique circumstances. The parties are in agreement that the appeal should be allowed and the appellant resentenced.
Background
[2]The appellant was charged in the Northern Territory with two counts of sexual intercourse without consent and one count of unlawful assault. He pleaded guilty to the count of unlawful assault and the trial of the other two charges commenced on 1 June 2015.
[3]On 3 June 2015, the appellant absconded from the Northern Territory. The trial continued in his absence and on the following day the appellant was found guilty of the two counts of sexual intercourse without consent.
[4]On 3 July 2015, the appellant was arrested in South Australia and charged with the murder of his then partner in that jurisdiction. He has remained in prison in South Australia since that time.
[5]On 22 April 2016, the appellant was sentenced by the Supreme Court of the Northern Territory for the two counts of sexual intercourse without consent and the count of unlawful assault. He was sentenced to a total effective sentence of 16 years and 155 days with a minimum non-parole period of 11 years and six months. The sentencing proceedings were conducted by audio-visual link to a prison in South Australia. The Court was unable to fix a commencement date for that sentence due to the appellant’s absence from the jurisdiction and his custodial situation in South Australia.
[6]On 13 October 2016, the appellant…

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 The Queen

Details

AGLC: Ferguson v The Queen [2019] NTCCA 11
Case: [2019] NTCCA 11
Decision Date: 7 June 2019

CaseChat Overview and Summary

Ferguson appealed to the Supreme Court of the Northern Territory against a sentence imposed upon him. The dispute concerned the appropriateness of the sentence, particularly in light of a subsequent sentence imposed in South Australia.

The central legal issue before the Court was whether the Northern Territory sentence was manifestly excessive, given that it was fixed in time to be served after a South Australian sentence, but no account had been taken of the latter at the time of the Northern Territory sentencing.

The Court reasoned that a sentencing judge must consider all relevant circumstances, including any existing or likely future sentences. In this instance, the failure to account for the South Australian sentence meant the Northern Territory sentence did not reflect the totality of the appellant's criminal conduct and the overall period of imprisonment he would serve. Consequently, the Court found the original Northern Territory sentence to be manifestly excessive.

The Court set aside the original sentence and resentenced the appellant.

Orders