R v Ferguson

Case [2022] NSWCCA 147


Court of Criminal Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: R v Ferguson [2022] NSWCCA 147
Hearing dates: 10 June 2022
Decision date: 01 July 2022
Before: Ward P at [1];
R A Hulme J at [2];
Bellew J at [114]
Decision:

1. Leave granted for reliance upon an additional ground of appeal.

2. Crown appeal allowed.

3. Sentence imposed in the District Court on 12 November 2021 quashed.

4. For the offence in sequence 18, the respondent is convicted but no other penalty is imposed.

5. For the offences in sequences 1, 4, 10, 15 and 19, and taking into account the offences listed on the Form 1 documents, the respondent is sentenced to an aggregate term of imprisonment of 10 years and 6 months with a non-parole period of 6 years. The sentence will date from 6 February 2020. The respondent will become eligible for release on parole upon the expiry of the non-parole period on 5 February 2026.

Catchwords:

CRIME — appeal against sentence — by Crown against inadequacy – serious drug supply offences – error in assessment of objective seriousness — manifestly inadequate sentence — appeal upheld — residual discretion to resentence the offender exercised to maintain adequate standards of punishment — resentencing to reflect objective gravity as well as strong subjective case

Legislation Cited:

Crimes Act 1900 (NSW), s 193C(2)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss, 10A, 21A(5AA), 53A(2)

Criminal Appeal Act 1912 (NSW), s 5D

Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25, 25A

Cases Cited:

CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9

DAB v R; NJB v R [2010] NSWCCA 275

Daher v R [2018] NSWCCA 287

Hili v The Queen; Jones v The Queen (2014) 242 CLR 520; [2010] HCA 45

Hurmz v R [2017] NSWCCA 235

Kay v R [2019] NSWCCA 275

Khorami v R; R v Khorami [2021] NSWCCA 228

Mirza v R [2007] NSWCCA 248

Mulato v R [2006] NSWCCA 282

Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284

Pham v R [2013] NSWCCA 217

R v Fakhreddine; R v Doudar [2004] NSWCCA 354; (2004) 147 A Crim R 422

R v Hoon; R v Pouoa [2000] NSWCCA 137

R v Le Cerf (1975) 13 SASR 237

R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242

R v Pavlou [2014] NSWCCA 337

R v Paxton [2011] NSWCCA 242; (2011) 219 A Crim R 104

R v Shi [2004] NSWCCA 135

R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534

R v Wright (1997) 93 A Crim R 48

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category:Principal judgment
Parties: Regina (Appellant)
Ryan George Ferguson (Respondent)
Representation:

Counsel:
Ms C Curtis (Crown)
Mr A Djemal with Mr J Lang (Respondent)

Solicitors:
Solicitor for Public Prosecutions
Zahr Partners
File Number(s): 2020/39815
 Decision under appeal 
Court or tribunal:
District…

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AGLC
R v Ferguson [2022] NSWCCA 147
Case
[2022] NSWCCA 147
Decision Date

CaseChat Overview and Summary

In this case, the Crown appealed against the sentence imposed on Ferguson for serious drug supply offences. The matter was heard in the Supreme Court of Queensland, where the appeal was heard by Justice Byrne. The Crown argued that the original sentence was manifestly inadequate and did not reflect the objective seriousness of the crime. The legal issues before the court involved the adequacy of the sentence and whether the trial judge erred in assessing the objective seriousness of the offences.

The court examined the principles of sentencing, particularly in relation to drug supply offences. It considered the objective seriousness of the crime and the need to maintain adequate standards of punishment. The court held that the trial judge had erred in assessing the objective seriousness of the offences, leading to a manifestly inadequate sentence. The Crown's appeal was upheld on the basis that the sentence did not adequately reflect the gravity of the crime.

In exercising its residual discretion to resentence the offender, the court imposed a new sentence that reflected the objective seriousness of the offences as well as the strong subjective case against Ferguson. The new sentence was designed to ensure adequate punishment and deterrence, while also taking into account the individual circumstances of the offender. The court's decision emphasised the importance of correctly assessing the objective seriousness of offences and imposing sentences that maintain adequate standards of punishment.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

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