R v Ferguson
[2008] VSCA 257
•9 December 2008
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 six months before becoming eligible for parole.
On the same day, Ms Harkness was sentenced as follows:
(1)On count 1, trafficking in a drug of dependence (cocaine) – one year and six months imprisonment.
(2)On count 2, trafficking in a drug of dependence (methylamphetamine) – one year and three months imprisonment with six months of such sentence to be served cumulatively upon the sentence imposed on count 1.
(3)Accordingly, the total effective sentence was two years imprisonment.
(4)No minimum period was fixed. Rather, the sentencing judge ordered that Ms Harkness’ sentence be wholly suspended for an operational period of three years.
On 18 July 2008, Mr Ferguson was granted leave to appeal against his sentence pursuant to s 582 of the Crimes Act 1958 (Vic).
In his appeal, Mr Ferguson relies upon the following grounds:
1.The individual sentences of imprisonment (2 years and 6 months on count 1; 2 years and 6 months on count 2), the order for cumulation (12 months of count 2 ordered to be served cumulatively on count 1), the total effective sentence (3 years and 6 months) and the non-parole period (2 years and 6 months) are each manifestly excessive.
2.The learned sentencing judge erred by giving no weight to the three year, three month delay between the offence (ending March 2004) and sentencing (June 2007).
3.The learned sentencing judge erred by finding:-
(a)that the appellant’s criminality was aggravated by reason of the fact that he was previously a police officer; and
(b)that the appellant, having been a police officer, was uniquely placed to witness the deleterious effects of drug taking and addiction, (reasons for sentence, [62])
4.The learned sentencing judge erred and denied the appellant procedural fairness by failing to find that the appellant suffered from an amphetamine addiction at the time of the offending (reasons for sentence, [58] – [61], [76]) and, as a consequence, erred by failing to find that the appellant’s level of moral culpability was reduced.
5.The learned sentencing judge, in her assessment of the circumstances of the offences, erred by finding that:-
(a)the offending was not aberrant short term behaviour: sentence, [57]
(b)the evidence of the telephone intercepts, the sworn evidence of Winsor, Flint and Gorissen and the admissions made by Harkness, clearly demonstrate that you were endeavouring to grow your business generally: sentence, [62]
(c)the appellant had negotiated a source of supply through Winsor with the intention of supplying up to one pound of cocaine to Harkness if the samples had proven satisfactory: sentence, [62]
(d)finding that Harkness was most likely drawn into the offending ‘after coming under the evil and destructive influence of Ferguson …’ [77]
6.The learned sentencing judge erred by failing to give any or adequate weight to the Crown’s submission that a sentence of more than three years was not called for and, as a consequence, that a partially suspended sentence was within the range of appropriate sentences [plea, T 976 [8] – [14]].
7.The sentence is manifestly disparate with that imposed on Jennifer Harkness.
A further ground of appeal was abandoned at the commencement of oral argument. All other grounds were maintained.
Circumstances Of The Offences
It is first necessary to note that the charges against Mr Ferguson and Ms Harkness were, in accordance with the principles stated in Giretti v R,[1] that each of them conducted a business of drug trafficking during the periods specified. Ms Harkness pleaded guilty to conducting such a business in both cocaine and methylamphetamine. The jury found that Mr Ferguson conducted a similar business.
[1](1986) 24 A Crim R 112.
Before the sentencing judge, and on appeal to this Court, it was accepted that the offending by each of Mr Ferguson and Ms Harkness was relevantly indistinguishable.
The circumstances of offending were set out by the sentencing judge. Her Honour commenced with a brief summary of the offending by each of Mr Ferguson and Ms Harkness:
In relation to cocaine, the evidence establishes that during the relevant period, you, Ferguson only sold 2g of cocaine but offered to sell up to a pound of cocaine. You, Harkness also offered to sell up to a pound of cocaine.
In relation to methylamphetamine, the evidence establishes that you, Ferguson sourced a total of 21 grams during the relevant period in amounts of 7g each time from co‑offender Joshua Flint on 22 January, 28 February and 20 March 2004. Approximately 7g was found on you on 20 March 2004 when you were arrested. Of the other 14g the evidence establishes that you sold 2g to Harkness on 30 January 2004. As for how much of the remaining amount was sold or consumed by you is unclear.
As for you, Harkness, you admit to having sourced 3g from Ferguson although it is apparent from telephone intercepts that he was not your only supplier. The amount of methylamphetamine sold by you cannot on the evidence be quantified.[2]
[2]Sentencing reasons, [8] – [10].
The sentencing judge then described the offences committed by Ms Harkness in more detail. Her Honour then gave the following further detail of the offences committed by Mr Ferguson:
Bradley Ferguson I will now deal briefly with the circumstances which the Crown relies upon to establish your offending conduct. In your case I also have the benefit of the evidence given at your trial and in particular the telephone intercepts which evidence specific conversations in which you are buying, selling or negotiating to buy or sell cocaine or amphetamines. The telephone intercepts also indicate that the completed transactions were not isolated or unrelated transactions but indicative of an ongoing, albeit low level business in each case.
In relation to count one, trafficking in cocaine, the telephone intercepts and covert surveillance established that:
·On 13 January you were trying to source cocaine through Ms Gorissen, your partner in a pool business. You also told her that you tried to source an ounce of cocaine from Winsor a couple of days prior to new year;
·On 29 January you indicate that you will try to get some cocaine for Gorissen;
·In early February you converse with both Winsor and Harkness concerning the cocaine deal. At your trial Gorissen gave evidence that you told her at various stages during telephone calls that you were seeking a transaction with Winsor to purchase for others this large amount of cocaine and that you needed two samples, and if the samples were OK, the deal might go ahead;
·At your trial Chris Winsor gave evidence that he had supplied to you 7g of amphetamine on two prior occasions and in early February 2004 he supplied two 1 gram samples of cocaine and was told by you that if your customers liked it then you would get from him, ie Winsor, 2-3oz at a time up to 1 pound. Winsor said that his transaction did not go any further as he was told that your customers did not like it;
·On 5 February you collect 2 grams of cocaine from Winsor and delivered it to Harkness. Subsequently there are conversations with both Harkness and Winsor about the unsatisfactory quality of these samples as a consequence of which any further order falls through;
·On 19 March you try to source cocaine through Harkness for yourself and Gorissen.
In relation to count two, trafficking in methylamphetamine, the telephone intercepts and covert surveillance establish that you sourced a quarter ounce amphetamines from Joshua Flint on 22 January and enquired about the same again the next day. You again sourced similar amounts from Flint on 28 February and 20 March.
On 23 January, you contacted Harkness, indicating that you had methylamphetamine if she wanted some. Later that day, Harkness told you that her customers might be interested in getting 7g and on 29 January she told you she just wanted 2g for those customers, which you delivered to her home on 30 January.
On 18 February Harkness placed an order with you for a gram of speed for one of her customers which you confirm over the next few days that you will have for her.
On 28 February and 19 March Harkness offered you speed and on the second occasion you indicate that you have already sourced some.
Flint gave evidence at your trial that he met you through Gorissen and supplied you only with speed, in varying quantities, normally quarter ounce or 7g every three to four weeks. Flint said that he normally charged about $1000 per quarter, deals were generally arranged by mobile phone, usually by SMS and the exchange for cash and drugs would take place normally around his home or work.
On 20 March you were arrested and a search was conducted of your person, your motor vehicle, hotel and pool shop. You indicated to police where you had stored 7g of amphetamines in your motor vehicle which you had purchased from Flint earlier that day. Two small resealable plastic bags containing small traces of amphetamines were found in a box in the main bedroom at your hotel, which you directed police to, and a bundle of resealable plastic bags were found in your utility motor vehicle.[3]
[3]Ibid [27] – [34].
No challenge is made to the sentencing judge’s description of the offences for which Mr Ferguson was convicted.
The sentencing judge, having heard all of the evidence, obviously felt that the case against Mr Ferguson was a strong one and that the jury’s verdict bore this out. In her sentencing reasons, the judge dismissed with derision the defence raised by Mr Ferguson that, in the course of the conversations which were recorded and which were the subject of oral evidence of Mr Winsor and Ms Gorissen, he was deliberately misrepresenting himself to others so as to contrive a sham transaction or transactions. Further, in dealing with the assertion by Mr Ferguson that he was addicted to methylamphetamine at the time of the offending, the sentencing judge made it clear that she did not accept Mr Ferguson as a witness of truth or reliability. No doubt this view was expressed having heard the evidence at the trial as a whole.
Mr Ferguson’s Antecedents
Mr Ferguson was aged 37 years at the time of offending. He was aged 40 years at the time of sentence. He has no prior convictions and there are no matters pending.
A number of personal testimonials as to his good character were tendered in evidence before the sentencing judge. Of particular relevance is a reference from his most recent employer, stating that there is a job open for him if he wishes to work for that employer.
Apart from the fact that his parents separated when he was aged seven years, there is nothing remarkable in his family history.
Mr Ferguson was educated to Higher School Certificate level, worked for a bank for two years and then entered the Victoria Police Force in February 1987. He was a police constable and senior constable for five years; a detective for three years; assigned to the Drug Squad for six years, with a one year interruption when he was in the Armed Robbery Squad; and ultimately ceased duties with the Victoria Police Force in June 2001. He contended that he ceased duties as a result of depression following a siege incident in the course of his police employment, with consequent alcohol abuse in the mid-1990s. It is apparent that the sentencing judge viewed this contention by Mr Ferguson with some scepticism, but nothing turns upon this. He finally resigned from the police force in May 2002.
Following his employment as a police officer, Mr Ferguson commenced running businesses. He was a partner in a hotel, which was successfully built up to become profitable, a partner with Ms Gorissen in a pool maintenance business and a partner in a small business renting out vending machines for prepaid telephone cards. He says that he worked extremely hard, with up to 20 hour days, and that he used methylamphetamine to keep him going. He said that he also used methylamphetamine for sexual pleasure purposes. He contended that he was regularly using methylamphetamine at the time of his offending. I will return to this issue later in these reasons.
Mr Ferguson’s health has suffered some ups and downs, but there was no evidence of any particular medical condition affecting his ability to serve a prison term.
Since his arrest and bail, Mr Ferguson has been employed and has assisted his mother to renovate a house on most weekends.
I turn to consider the various grounds of appeal. It is convenient to deal with ground one, which alleges that the sentences were manifestly excessive, after first considering the specific grounds of appeal relating to alleged errors on the part of the sentencing judge.
Grounds Of Appeal
(1) Delay (ground 2)
There is no question that there was considerable delay in bringing the charges against Mr Ferguson to trial. In particular, the trial was adjourned for one year due to the unavailability of a County Court judge to hear it when it was first listed. Counsel for the Crown conceded that such delays were, unfortunately, not out of the ordinary having regard to the volume of criminal cases pending. It is acknowledged that none of the delay is consequent upon any actions of Mr Ferguson, other than the fact that he pleaded not guilty and ran a trial. Of course, these matters cannot be taken into account against Mr Ferguson’s interests in this regard. He had a right to plead not guilty and to contest the charges against him.
In R v Merrett, Piggott & Ferrari,[4] Maxwell P reviewed the authorities concerning the relevance of delay as a mitigating factor in sentencing, especially in circumstances where the offender has been on bail during the period of delay and, in that time, has engaged in an effective process of rehabilitation by participating in the community without further offending. The unfairness of serious criminal charges hanging over the head of the offender for a long period is also a relevant consideration.[5] With reference to R v Liang and Li,[6] Maxwell P stated that delay constitutes ‘a powerful mitigating factor’.[7]
[4](2007) 14 VR 392.
[5]Ibid [34] – [36].
[6](1995) 124 FLR 350, 356; cited by Vincent AJA in R v Schwabegger [1998] 4 VR 649, 659; see also R v Cockerell (2001) 126 A Crim R 444, [10] per Chernov JA.
[7](2007) 14 VR 392, [35].
The difficulty with this ground of appeal is that delay was not the subject of any specific submission made to the sentencing judge on the plea. In these circumstances, it is unsurprising that the sentencing judge did not make specific reference to it in her reasons for sentence. However, her Honour implicitly did so. Express consideration was given in the sentencing reasons to the conduct of Mr Ferguson whilst on bail awaiting trial. Her Honour noted that during this period Mr Ferguson was in gainful employment, had a good reference from his employer, had renovated his mother’s home at weekends and, as a result, should be viewed as having good prospects for rehabilitation. Although, as appears below, the judge did not accept that Mr Ferguson had ever been addicted to methylamphetamine, the plea was conducted on the basis that Mr Ferguson had ceased using amphetamines since his arrest. In these circumstances, I do not think that specific sentencing error has been demonstrated. The judge took into account the conduct of Mr Ferguson pending trial and concluded in his favour that good prospects of rehabilitation were demonstrated.
(2) Mr Ferguson’s prior position as a police officer (ground 3)
During the course of the plea, counsel for Mr Ferguson placed much emphasis upon the fact that he had been a police officer for over 12 years and given community service in that capacity. This was relied upon as a mitigating circumstance. Prosecution counsel submitted to the sentencing judge that the prior occupation of Mr Ferguson as a police officer was a ‘double-edged sword’ because Mr Ferguson was a former member of the Drug Squad and, in that capacity, must have witnessed at close hand the deleterious effects of drug trafficking and that, accordingly, he was ‘better placed than most people to know the harm that flows from drug trafficking’. Viewed this way, it was submitted that Mr Ferguson’s prior employment as a police officer was an aggravating factor. The sentencing judge accepted the prosecutor’s submissions in this regard and took into account as an aggravating factor against Mr Ferguson that he was ‘uniquely placed to witness the deleterious effects of drug trafficking and drug addiction’.[8]
[8]Sentencing reasons, [62].
It was submitted on behalf of Mr Ferguson that there was no evidentiary basis for such a finding of fact which, being against Mr Ferguson’s interests, the judge was required to find beyond reasonable doubt. It was suggested that it was possible that Mr Ferguson had dealt only with drug dealers during his time with the Drug Squad, and had not had any opportunity to witness or deal with drug users. I reject these submissions. The inference drawn by the sentencing judge was plainly open and obvious. For a considerable period of years, Mr Ferguson was employed to enforce the drug laws of this State. He must have been well aware of the harms to which such laws are directed.
(3) Mr Ferguson’s alleged amphetamine addiction (ground 4)
During the course of the plea hearing, it was submitted on behalf of Mr Ferguson that his offending occurred at a time when he was addicted to, or at least regularly using, methylamphetamine and was accordingly vulnerable to exercising poor judgement. Further, in this regard, it was submitted that Mr Ferguson had voluntarily ceased using methylamphetamine from the time of his arrest and was now drug free. The sentencing judge rejected the submission that Mr Ferguson had ever been addicted to methylamphetamine and that this formed any basis for mitigating his sentence. The judge gave careful reasons for reaching this conclusion.[9] I can see no error in the judge’s process of reasoning to her conclusion that there was no credible evidence that Mr Ferguson suffered any severe drug addiction, or indeed any addiction, at the time he offended.
[9]Sentencing reasons, [59] – [61].
It was submitted on behalf of Mr Ferguson that the sentencing judge denied him procedural fairness because no warning was given that his evidence that he was a regular user of methylamphetamine at the time of offending would be disbelieved. This was to be contrasted with comments made by the sentencing judge concerning the alleged financial effects upon Mr Ferguson of a restraining order made against him under the Confiscation Act 1997 (Vic).[10] Counsel for Mr Ferguson placed reliance upon R v Duong.[11] In that case, Kenny JA found that procedural fairness had been denied because the judge gave no warning to the affected party that he would or may depart from a statement of agreed facts.[12]
[10]The abandoned ground of appeal related to the financial effect of the restraining order upon Mr Ferguson.
[11][1998] 4 VR 68.
[12]Ibid 77 – 78.
There is no merit in the submissions made on behalf of Mr Ferguson in this regard. R v Duong has no application. There was no agreed fact in this case that Mr Ferguson was a drug addict at the time of the offending. The fact that he gave evidence at the trial, and on the plea, that he had been using methylamphetamine at the time of the offending, and was not cross‑examined to the effect that he was lying about this, did not establish an agreed fact that he was a drug addict at the time of offending. At best, there was unchallenged evidence that he chose to use methylamphetamine for the stated purposes of heightened sexual pleasure and enabling him to work long hours and thus conduct three successful businesses at the time he was also trafficking in drugs.
Furthermore, as the sentencing judge noted in her reasons, the plea hearing was adjourned at the request of Mr Ferguson’s counsel for the purpose of obtaining psychological and/or medical evidence. However, no such evidence was in fact tendered at the adjourned plea hearing, as would be expected if reliance was to be placed upon this ground of mitigation.
Further, the mere fact of drug addiction at the time of offending is not a mitigating factor by itself. Something more is required, such as a reason for the addiction which is explained otherwise than by choices of the kind made by Mr Ferguson in this case.[13]
[13]R v Grossi [2008] VCSA 51, [53].
(4) Allegedly wrong factual findings (ground 5)
First, it was submitted that the sentencing judge erred in rejecting the submission that Mr Ferguson’s drug trafficking should be viewed as aberrant short term behaviour. This submission should be rejected. The sentencing judge gave sound reasons for concluding that the evidence established an intention on the part of Mr Ferguson to deal in drugs outside the period which was charged. Although the sentencing judge accepted that she must sentence Mr Ferguson on the basis of him having conducted a business of trafficking in cocaine and methylamphetamine at a relatively low level within the period alleged, her Honour was entitled to look outside this period in order to assess the submission made on Mr Ferguson’s behalf. In that regard, her Honour made the following findings:
There is no question that you will be sentenced on the basis of conducting a business of trafficking in cocaine and amphetamines at a relatively low level within the period alleged. However, the evidence also indicates that you were purchasing amphetamines from Winsor and Flint outside of this period, talking to Winsor about sourcing cocaine outside of this period and talking to Gorissen and a Mr Slaven about drug transactions on other occasions. Your ongoing drug discussions indicate that you were opportunistic and ready to deal as and when you could accommodate such transactions within the context of your other legitimate business activities.[14]
[14]Sentencing reasons, [57].
The judge’s findings in this regard are consistent with the evidence. I reject the submission that the discussions referred to were equally consistent with either drug trafficking by Mr Ferguson or Mr Ferguson seeking supply of drugs for his own use. In particular, there was no evidence of any kind that Mr Ferguson had ever used cocaine.
Second, it was submitted on behalf of Mr Ferguson that the sentencing judge erred in concluding that Mr Ferguson was endeavouring to grow his drug trafficking business and had negotiated a source of supply of cocaine with an intention of supplying up to one pound of that drug. It was submitted that the evidence justified a finding of no more than either a sham transaction or ‘a transaction which never got off the ground’ because it was cancelled due to the poor quality of the sample provided.
The judge’s conclusions in this regard were as follows:
Furthermore, I am satisfied beyond reasonable doubt that the evidence of telephone intercepts, the sworn evidence of Winsor, Flint and Gorissen and the admissions made by Harkness, clearly demonstrate that you were endeavouring to grow your businesses generally. In particular, in relation to your business of trafficking cocaine I am satisfied beyond reasonable doubt that you had negotiated a source of supply through Winsor with the intention of supplying up to one pound of cocaine to Harkness, if the samples which were initially provided had proven satisfactory.[15]
[15]Sentencing reasons, [62].
There is no merit in this submission either. The evidence clearly indicated that Mr Ferguson had negotiated a source of supply of cocaine through Winsor and was willing to supply up to one pound of cocaine if the sample provided had proven satisfactory. I reject the submission that the failure of Mr Ferguson to provide a further sample when the first was rejected, or to otherwise seek to re‑enliven the proposed transaction for a sale of up to one pound of cocaine, somehow undermines the judge’s findings in this regard. Mr Ferguson was a willing provider of up to one pound of cocaine if the customer had been satisfied with the sample he provided.
Third, it was submitted on behalf of Mr Ferguson that the trial judge erred in finding that Ms Harkness’ offending was contributed to by her ‘having been drawn into’ her drug trafficking businesses ‘after coming under the evil and destructive influence of Ferguson and [her] ex-partner.’ It was submitted that there was no evidentiary basis for this finding, and that the trial and the plea were conducted on the basis that each of Mr Ferguson and Ms Harkness operated a separate and independent drug trafficking business.
I do not accept that the judge made any sentencing error by making the challenged statement. The statement was made in connection with identifying a positive factor to be taken into account in mitigation of Ms Harkness’ sentence. In that regard, a finding on the balance of probabilities was all that was required. The statement, while perhaps unnecessarily dramatic, was one made by the judge after hearing all of the evidence at the trial and on the plea, including personal references as to Ms Harkness’ good character which her Honour thought confirmed the view that Ms Harkness had been drawn into drug trafficking by the influences of both Mr Ferguson and her ex‑partner. No comment to this effect was made by the judge in connection with her separate sentencing remarks concerning Mr Ferguson.
(5) Relevance of the Crown submissions on sentencing range (ground 6)
The Crown Prosecutor commenced his submissions on the plea with the following statement:
Your Honour, it’s the Crown’s submission in relation to Mr Ferguson that an immediate custodial sentence is called for. I don’t submit that a sentence of more than three years is called for. It follows that a partly suspended sentence – which was my learned friend’s alternative submission – is within the range so far as the Crown’s submission is concerned.
That submission did not bind the sentencing judge. So much was accepted by counsel for Mr Ferguson. However, it was submitted that it was a sentencing error for the judge to have made no reference to the Crown’s submission in the course of her sentencing reasons. I do not accept that submission. No doubt the Crown’s submission was taken into account by her Honour in her overall sentencing consideration. Error is not to be attributed to a sentencing judge simply because every single submission or possibly relevant fact is not referred to in the sentencing reasons.
(6)Manifest disparity from sentence imposed upon Ms Harkness (ground 7)
As appears above, Ms Harkness received a significantly lesser sentence than did Mr Ferguson, for committing relevantly identical crimes. Her sentence was 18 months (or about 43 per cent) less than the sentence imposed upon Mr Ferguson. Further, in addition to this disparity, Mr Ferguson was given a minimum period of imprisonment of two years and six months, while Ms Harkness’ sentence was wholly suspended.
The principal differences between the respective positions of Ms Harkness and Mr Ferguson are summarised below:
(1)Ms Harkness pleaded guilty, albeit late, and thus showed some remorse. Mr Ferguson pleaded not guilty, put the State to the cost and expense of a lengthy trial and ran a defence which demonstrated that he had no remorse whatsoever. In these circumstances, the sentencing judge concluded that there was some risk that Mr Ferguson would re‑offend. No such risk was identified in respect of Ms Harkness.
(2)Ms Harkness has the primary role of caring for three children, two of whom are aged 10 and 12 years respectively. She has been raising the children as a single mother since her relationship with her ex‑husband ended in 2002. Although her ex-husband was prepared to take over custody of the children if Ms Harkness was imprisoned, the evidence indicates that he would be a less than satisfactory role model for the children. Mr Ferguson has no children and no other persons depending upon him for care.
It was submitted on behalf of Mr Ferguson that the disparities were manifestly too great, even allowing for the significant mitigating factors which applied to Ms Harkness but did not apply to Mr Ferguson. I reject the submissions made on behalf of Mr Ferguson in this regard. The combination of aggravating factors applicable to Mr Ferguson and not Ms Harkness, coupled with the significant mitigating factors applicable to Ms Harkness but not Mr Ferguson, justified the disparity between the sentences imposed upon each of them. At the very least, such a disparity was open to the sentencing judge in her sentencing discretion and I would not interfere.
(7)Manifest excess (ground 1)
The manifest excess ground of appeal draws heavily upon the individual error grounds referred to above, each of which has been rejected. Further to those matters, reliance was placed upon the relatively small amounts of drugs actually sold by Mr Ferguson, the fact that he has no prior convictions, his good character apart from these convictions, his strong rehabilitation prospects and the fact that imprisonment is usually more burdensome for ex‑police officers.
The judge accepted that each of these factors was present as a mitigating factor. However, against these mitigating factors, the sentencing judge balanced the seriousness of the offences for which Mr Ferguson was convicted; the fact that those offences were premeditated and motivated by greed; the complete lack of any remorse on the part of Mr Ferguson; the rejection by the trial judge and the jury of an elaborate and far-fetched defence based upon lies told by Mr Ferguson; the need for general (and to a lesser extent specific) deterrence; the need for denunciation of Mr Ferguson’s conduct, particularly from an ex‑policeman who was well placed to know the evils arising from drug trafficking; and the overall need to impose a just punishment for the offences. In particular, the trial judge was entitled to take into account the obvious intention of Mr Ferguson to grow his drug trafficking business and the particular evidence of his willingness to traffick in up to a pound of cocaine if the potential buyer accepted the sample provided. A pound of cocaine is approaching a commercial quantity.
It was submitted on behalf of Mr Ferguson that the judge made an error in imposing the same sentence for cocaine trafficking (where there was only one transaction and only 2 grams was sold as a sample) as that fixed in respect of methylamphetamine (where there were three trades of 7 grams each). I do not accept this submission. Although only a small amount of cocaine was in fact sold, the intention was obviously to sell more if that could be achieved, and it must not be forgotten that Mr Ferguson was found guilty of conducting a cocaine trafficking business over the charged period. In these circumstances, it was open to the judge to impose the same sentence in respect of the two counts.
It was also submitted on behalf of Mr Ferguson that cumulating one year of the methylamphetamine conviction upon the cocaine conviction was manifestly excessive, given that there was only one business conducted. I do not accept this submission either. The business was trading in, and Mr Ferguson intended to trade in, two separate drugs of dependence; each with the capacity to cause harm to users and the community in various ways. The extent of cumulation imposed by the trial judge was open to her and I would not disturb it.
Conclusion
For the above reasons, the appeal should be dismissed.