R v Ferguson

[2015] ACTSC 363

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Ferguson

Citation:

[2015] ACTSC 363

Hearing Dates:

3 September, 9 November 2015

DecisionDate:

9 November 2015

Before:

Murrell CJ

Decision:

Effective sentence of 22 months’ imprisonment: five months full-time imprisonment and 17 months suspended upon entering into two-year recognizance release and good behaviour orders.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –Commonwealth and ACT sexual offences – use carriage service to access and transmit child pornography – intentionally possess child pornography – lower objective seriousness – maximum penalties – general and specific deterrence – rehabilitation – comparable cases – late guilty pleas

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 35

Crimes Act 1900 (ACT) s 65
Crimes Act 1914 (Cth) ss 16A, 20

Criminal Code Act 1995 (Cth) s 474.19

Cases Cited:

Cameron v The Queen (2002) 209 CLR 339

Director of Public Prosecutions v D’Alessandro (2010) 26 VR 477

R v De Leeuw [2015] NSWCCA 183
R v Falzon [2015] ACTSC 104
R v Forbes [2014] ACTSC 91
R v MB [2014] ACTSC 399
R v Minahan [2014] ACTSC 168

R v Porte [2015] NSWCCA 174

Parties:

The Queen (Crown)

Joshua Luke Ferguson (Offender)

Representation:

Counsel

Ms K Haigh (Crown)

Mr G Theakston (Offender)

Solicitors

Commonwealth Director of Public Prosecutions (Crown)

Legal Aid ACT (Defendant)

File Number(s):

SCC 134 of 2014

MURRELL CJ:

Offences

1. On 31 August 2015, the date fixed for trial, the offender entered pleas of guilty to the following offences:

(a)Count 1: 17 December 2012, use carriage service to access child pornography material;

(b)Count 2: 23 January 2013, use carriage service to access child pornography material;

(c)Count 3: 28 January 2013, use carriage service to transmit child pornography material;

(d)Count 4: 16 February 2013, use carriage service to transmit child pornography material;

(e)Count 5: 17 March 2013, use carriage service to access child pornography material; and

(f)Count 6: 3 December 2013, intentionally possess child pornography material. 

1. Counts 1 to 5 are offences against s 474.19(1) of the Criminal Code Act 1995 (Cth). Each offence carries a maximum available penalty of 15 years’ imprisonment. Count 6 is an offence against s 65 of the Crimes Act 1900 (ACT). It carries a maximum available penalty of seven years’ imprisonment.

1. Following his arrest, the offender spent four days in custody.  He has been in custody since 4 September 2015, when the matter was last before the Court.  Consequently, the sentences should date from 31 August 2015.

Facts

1. On 3 December 2013, police executed a search warrant at the offender’s premises.  The offender informed police that he was the sole occupant of the premises, having moved there four or five months earlier. 

1. Police seized the offender’s laptop computer, his iPhone and a USB stick which they found in the offender’s bag in the dining room.  The offender provided police with the passwords for the iPhone and two Skype accounts. 

1. A forensic examination of the offender’s laptop revealed criminal…