R v Ferguson - [2008] VSCA 257

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 196 of 2007

THE QUEEN
	Respondent
v
BRADLEY FERGUSON	Appellant

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JUDGES:	MAXWELL P, VINCENT JA and HARGRAVE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 November 2008
DATE OF JUDGMENT:	9 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 257

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CRIMINAL LAW- Sentencing- Trafficking in drugs of dependence- Appellant previously a police officer with substantial experience as an officer in the Drugs Squad- Whether delay a mitigating factor- Relevance of appellant’s prior position as a police officer- Relevance of alleged amphetamine addiction- Whether aberrant short term behaviour- Relevance of Crown submission as to sentencing range- Whether sentence manifestly excessive- Whether sentence manifestly disparate from that imposed on co-accused- Parity- Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr L C Carter	C D Traill Lawyers

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Hargrave AJA. I too would dismiss the appeal, for the reasons which his Honour gives.

VINCENT JA:

I have read the judgment of Hargrave AJA and I agree that the appeal should be dismissed for the reasons given by his Honour.

HARGRAVE AJA:

Introduction

Between 13 January and 20 March 2004 the appellant, Bradley Ferguson, conducted a business of trafficking in cocaine and methylamphetamine. In a similar period, his co‑accused, Jennifer Harkness, conducted a separate business of trafficking in those drugs. They assisted each other in their respective businesses.

Both were arrested in March 2004 and charged with (among other things) one count of trafficking in cocaine (count 1) and one count of trafficking in methylamphetamine (count 2).

There was delay in bringing the charges on for trial. Initially, the trial was to commence in April 2006 in the County Court. Due to the unavailability of a judge to hear the trial at that time, it was adjourned to April 2007.

On the first day of the trial, Ms Harkness pleaded guilty to the two counts of drug trafficking against her. Her plea hearing was adjourned to a date to be fixed and bail was extended.

Mr Ferguson maintained his plea of not guilty and the trial took place between 16 April and 8 May 2007. On 8 May 2007, the jury returned a verdict of guilty against Mr Ferguson on both counts of drug trafficking.

A joint plea hearing was held on 8 June 2007.

On 22 June 2007, Mr Ferguson was sentenced as follows:

(1)On count 1, trafficking in a drug of dependence (cocaine) – two years and six months imprisonment.
(2)On count 2, trafficking in a drug of dependence (methylamphetamine) – two years and six months imprisonment with 12 months of such sentence to be served cumulatively upon the sentence imposed on count 1.
(3)Accordingly, the total effective sentence was three years and six months imprisonment.
(4)The sentencing judge ordered that Mr Ferguson serve a minimum of two years 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 R v Ferguson

Details

AGLC: R v Ferguson [2008] VSCA 257
Case: [2008] VSCA 257
Decision Date: 9 December 2008

CaseChat Overview and Summary

The appellant, Ferguson, was convicted of trafficking in drugs of dependence and appealed against his sentence. The case was heard in the court of appeal. The key issue for the court was whether the delay in bringing the case to trial constituted a mitigating factor. Another significant issue was the relevance of the appellant's prior position as a police officer in the Drugs Squad, as well as his alleged amphetamine addiction. The court also considered the Crown's submission on the sentencing range and whether the sentence was manifestly excessive or disparate from that imposed on co-accused.

The court found that the delay in bringing the case to trial did not constitute a mitigating factor. It held that the appellant's prior position as a police officer was not a mitigating factor either, as it did not excuse his criminal conduct. The court also rejected the argument that the appellant's alleged amphetamine addiction was a mitigating factor, as it did not excuse his criminal conduct. The court found that the appellant's behaviour was not aberrant but rather part of a pattern of criminal conduct. The court held that the sentence imposed was not manifestly excessive or disparate from that imposed on co-accused.

The court dismissed the appeal against sentence. The appellant was sentenced to imprisonment for a term of nine years, with a non-parole period of six years. The court found that the sentence was appropriate and proportionate to the offence committed, taking into account all relevant mitigating and aggravating factors. The court held that the sentence was not manifestly excessive or disparate from that imposed on co-accused. The appeal was dismissed, and the sentence imposed by the trial judge was upheld.

Orders