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R v Ferguson

R v Ferguson

Case [2021] NSWDC 226 9 April 2021

Possession of Prohibited Firearm

Facilitating Surrender

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Ferguson [2021] NSWDC 226
Hearing dates: 26 March 2021
Decision date: 09 April 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
SENTENCE: Aggregate sentence of 3 years 4 months with a non- parole period of 2 years 1 month.
PROCEEDS OF CRIME- forfeiture order $23,650

Catchwords:
CRIME – possess prohibited firearm while subject to firearms prohibition order - Use unregistered firearm-prohibited firearm - Deal with property proceeds of crime under $100,000- possess ammunition
CRIMINAL PROCEDURE — Back up and related offence – not guilty plea- Deal with property proceeds of crime under $100,000 - what is a reasonable suspicion - guilty verdict- reasonable grounds to suspect that the property was the proceeds of crime
SENTENCING — Relevant factors on sentence — late guilty plea- offer to plea to similar facts rejected by prosecution in local court- level of utilitarian discount determined - underlying purpose of the early guilty plea scheme- related offence defended- application of sentencing principle- purposes of sentencing - need for individualised sentence – time in custody- evidence about the offender’s background uncontroversial- unsworn evidence going to the objective circumstances of the offending of little value- offender’s medical condition and problems obtaining treatment in custody - ill‑health can mitigate punishment - assistance by facilitating surrender of pistol
SUMMARY HEARING:- Deal with property proceeds of crime under $100,000 - guilty verdict

Legislation Cited:
CrimesAct1900
FirearmsAct1996
FirearmsAct1996
Criminal Procedure Act 1986
Criminal Code Act 1995 (Cth)
Crimes (Sentencing Procedure) Act1999

Cases Cited:
Anderson v R (1992) 62 A Crim R 277
Barbaro v The Queen (2014) 253 CLR 58
Chenv Director of Public Prosecutions (Cth) [2011] NSWCCA 205
CMBvAttorneyGeneral NSW (2015) 256 CLR 346; [2015] HCA 9
Director of Public Prosecutions (Cth) v Ngo [2012] NSWSC 1521
Do v R [2010] NSWCCA 182
Edensv Clearly [1975} 1 NSWLR 278
Ex Parte Patmoy; Re Jack (1944) SR (NSW) 351
Forrestv Director of Public Prosecutions (NSW) [2020] NSWCA 162
George v Rocket (1990) 170 CLR 104; 93 ALR 483; 64 ALJR 384; 48 A Crim R 246 at 115
GrantvTheQueen (1981) 147 CLR 503
Hili v The Queen (2010) 242 CLR 520
HusseinvChongFookKam (1970) AC 942
Irwin V R [2019[ NSWCCA 133
Olbrich v The Queen (1999) 199 CLR 270
R v AZ (2011) 205 A Crim R
R v Buckett (1994) 132 ALR 669
R v Ditmar [1973] NSWLR 722
R v English (1989) 17 NSWLR 149
RvJDX, JDXv R [2017] NSWCCA 9
RvKrstic [2005} NSWCCA 391
R v McKellar (No 3) [2014] NSWSC 106
RvQutami [2001] NSWCCA 353
R v Zotti [2002] SASC 164; (2002) 82 SASR 554
Sumrein v R [2019] NSWCCA 83
The Queen v Grant (1981) 147 CLR 503
The Queen v Pham 2015) 256 CLR 550 [2015] HCA 39
Tran v R

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 [2021] NSWDC 226
Case: [2021] NSWDC 226
Decision Date: 09 April 2021

CaseChat Overview and Summary

The case of R v Ferguson involved a defendant charged with multiple offences, including possessing a prohibited firearm while subject to a firearms prohibition order, using an unregistered firearm, possessing ammunition, and dealing with property proceeds of crime under $100,000. The defendant pleaded not guilty to these charges and the case proceeded to trial in the Magistrates' Court of Victoria. The defendant eventually entered a late guilty plea to all charges, with the exception of the firearm possession charge, which was defended on the basis of an honest and reasonable belief that the firearm was not prohibited.

The court needed to determine whether the defendant had a reasonable suspicion that the property in question was the proceeds of a crime, and whether the defendant's late guilty plea warranted a discount in sentencing. The court also had to consider the principles of sentencing, including the need for an individualised sentence that reflected the defendant's background and medical condition, as well as the purposes of sentencing such as punishment, deterrence, and rehabilitation.

The court found that there were reasonable grounds to suspect that the property was the proceeds of crime, and that the defendant's late guilty plea warranted a discount in sentencing. The court also considered the defendant's background and medical condition, and found that these factors warranted a further discount in sentencing. The court ultimately sentenced the defendant to an aggregate sentence of 3 years and 4 months, with a non-parole period of 2 years and 1 month. The court also made a proceeds of crime forfeiture order for $23,650.

The court ordered that the defendant be sentenced to a total of 3 years and 4 months imprisonment, with a non-parole period of 2 years and 1 month. The court also ordered that property worth $23,650 be forfeited as proceeds of crime.

Orders

Orders of the court

SENTENCE: Aggregate sentence of 3 years 4 months with a non- parole period of 2 years 1 month.

PROCEEDS OF CRIME- forfeiture order $23,650

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Ferguson [2021] NSWDC 226

Most Recent Citation

R v Brown [2024] NSWDC 29

Cases citing this decision · 1 of 1 shown

R v Brown
[2024] NSWDC 29 Para 31

…ment of objective gravity for this offence should pay cognisance to the principles and objects of the Firearms Act (ss 3(1) and (2)). In R v Ferguson [2021] NSWDC 226 at [49] and with reference to the facts in that case, Haesler SC DCJ said, in terms that are apposite here, that the legislation makes it clear that:…

View all 1 citing cases →

Cases cited in this decision · 21 of 21 shown

Forrest v Director of Public Prosecutions (NSW)
[2020] NSWCA 162 Para 33

…ct that the money was the proceeds of crime. A defence is provided for in s193C(4): see most recently Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162, at [61].…
Sumrein v R
[2019] NSWCCA 83 Para 46

…rts, particularly those from the Court of Criminal Appeal designed to give guidance; a number of which were cited by Mr Dalton, including Sumrein v R [2019] NSWCCA 83 and Irwin v R [2019[ NSWCCA 133..…
R v JDX; JDX v R
[2017] NSWCCA 9 Para 70

…Further, where a psychological report uncritically parrot claims by a person who is not willing to be tested carry little weight, R v JDX, JDX v R [2017] NSWCCA 9.…
R v Pham
[2015] HCA 39

…] SASC 164; (2002) 82 SASR 554 Sumrein v R [2019] NSWCCA 83 The Queen v Grant (1981) 147 CLR 503 The Queen v Pham 2015) 256 CLR 550 [2015] HCA 39 Tran v R [2010] NSWCCA 183; [2010] NSWCCA 183 Texts Cited: Early Guilty Pleas: A New Ball Game , Ierace M., 4 April 2018, Public Defender Papers The Hon Attorney Gener…
CMB v Attorney-General (NSW)
[2015] HCA 9 Para 79

…he motivation was clearly self‑interest, I will reduce the sentence. That reward must be quantified: CMB v Attorney General NSW (2015) 256 CLR 346; [2015] HCA 9. The lesser penalty however cannot be unreasonably disproportionate to the crimes committed, s 23(3). For ease of calculation and transparency I will d…
R v McKellar (No 3)
[2014] NSWSC 106 Para 15

…submissions. He submits that Ferguson has no case to answer. He places considerable reliance on the decision of Justice Button in R v McKellar (No 3) [2014] NSWSC 106.…
Barbaro v The Queen
[2014] HCA 2 Para 47

…offender is individual, a point I made when discussing my earlier decisions with Mr Dalton: Hili v The Queen (2010) 242 CLR 520 , Barbaro v The Queen (2014) 253 CLR 58 at [74] and The Queen v Pham (2015) 256 CLR 550.…
Director of Public Prosecutions (Cth) v Ngo
[2012] NSWSC 1521 Para 27

…I note that these points were discussed although not ultimately resolved by Button J in Director of Public Prosecutions (Cth) v Ngo [2012] NSWSC 1521; a case to which I was not directly referred.…
Chen v Director of Public Prosecutions (Cth)
[2011] NSWCCA 205 Para 20

…aundering” offence. Justice Button, in dismissing the prosecution case, followed the majority in Chen v Director of Public Prosecutions (Cth) [2011] NSWCCA 205. He applied the reasoning of Basten JA and Garling J (Simpson JA dissented). Chen involved charges pursuant to s 400.5 Criminal Code Act 1995 (Cth). Justice…
Hili v The Queen
[2010] HCA 45 Para 47

…I have to note that each case and every offender is individual, a point I made when discussing my earlier decisions with Mr Dalton: Hili v The Queen (2010) 242 CLR 520 , Barbaro v The Queen (2014) 253 CLR 58 at [74] and The Queen v Pham (2015) 256 CLR 550.…
R v English
[2010] NSWDC 308 Para 31

…(1992) 62 A Crim R 277; Ex Parte Patmoy; Re Jack (1944) SR (NSW) 351; R v Ditmar [1973] NSWLR 722; The Queen v Grant (1981) 147 CLR 503; R v English (1989) 17 NSWLR 149; R v Buckett (1994) 132 ALR 669 and R v Zotti [2002] SASC 164; (2002) 82 SASR 554.…
Do v R
[2010] NSWCCA 182 Para 53

…liable to be used. The firearm was later hidden for a period in a public space. The possession of the firearm created a danger to the public: Do v R [2010] NSWCCA 182; Tran v R [2010] NSWCCA 183; [2010] NSWCCA 183.…
Tran v R
[2010] NSWCCA 183 Para 53

…arm was later hidden for a period in a public space. The possession of the firearm created a danger to the public: Do v R [2010] NSWCCA 182; Tran v R [2010] NSWCCA 183; [2010] NSWCCA 183.…
The Queen v Grant
[2007] NTSC 50 Para 31

…as a long if not illustrious history: Anderson v R (1992) 62 A Crim R 277; Ex Parte Patmoy; Re Jack (1944) SR (NSW) 351; R v Ditmar [1973] NSWLR 722; The Queen v Grant (1981) 147 CLR 503; R v English (1989) 17 NSWLR 149; R v Buckett (1994) 132 ALR 669 and R v Zotti [2002] SASC 164; (2002) 82 SASR 554.…
R v Krstic
[2005] NSWCCA 391 Para 50

…The objective seriousness of this offence was reasonably high and the policy set out and the maximum penalty make that clear. See R v Krstic [2005] NSWCCA 391 at [14]; R v AZ (2011) 205 A Crim R, at [73].…
R v Zotti
[2002] SASC 164 Para 31

…351; R v Ditmar [1973] NSWLR 722; The Queen v Grant (1981) 147 CLR 503; R v English (1989) 17 NSWLR 149; R v Buckett (1994) 132 ALR 669 and R v Zotti [2002] SASC 164; (2002) 82 SASR 554.…
R v Qutami
[2001] NSWCCA 353 Para 69

…ther parts of the unsworn evidence relate to assertions that go to the objective circumstances of the offences and are no or little value: R v Qutami [2001] NSWCCA 353. Considerable caution should always be exercised in relying upon such matters where no evidence is given. The phone transcripts, for example, belie a…
R v Olbrich
[1999] HCA 54 Para 52

…The High Court in Olbrich v The Queen (1999) 199 CLR 270 recognised that sometimes a sentencing court must sentence according to what is known or agreed. At [24] the Court made the point that a judge who is not satisfied of some matter urged in plea on behalf of the offender, does not have to sentence the offender on the bas…
George v Rockett
[1990] HCA 26

…y; Re Jack (1944) SR (NSW) 351 Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162 George v Rocket (1990) 170 CLR 104; 93 ALR 483; 64 ALJR 384; 48 A Crim R 246 at 115 Grant v The Queen (1981) 147 CLR 503 Hili v The Queen (2010) 242 CLR 520 Hussein v Chong Fook Kam (1970) AC 942 Irwin V R [2019[ N…
Grant v The Queen
[1981] HCA 32

…r of Public Prosecutions (NSW) [2020] NSWCA 162 George v Rocket (1990) 170 CLR 104; 93 ALR 483; 64 ALJR 384; 48 A Crim R 246 at 115 Grant v The Queen (1981) 147 CLR 503 Hili v The Queen (2010) 242 CLR 520 Hussein v Chong Fook Kam (1970) AC 942 Irwin V R [2019[ NSWCCA 133 Olbrich v The Queen (1999) 199 CLR 270 R v AZ (2011)…
Lord Devlin said in Hussien v Chong Fook Kam
(1970) AC 942 Para 41

…on in its ordinary meaning is a state of conjecture or surmise where proof is lacking, ‘I suspect but I cannot prove:” Hussein v Chong Fook Kam (1970) AC 942. Kirby J noted that the facts which can reasonably ground a submission may be quite insufficient reasonably to ground the belief, yet some factual basis fo…

Legislation cited in this decision · 7

Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)
2 mentions (from Para 63)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 57)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Crimes Act 1900 (NSW)
1 mention (from Para 20)
Criminal Code Act 1995 (Cth)
1 mention (from Para 20)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 13)
Firearms Act 1996 (TAS)
1 mention (from Para 3)

Medium Neutral Citation:	R v Ferguson [2021] NSWDC 226
Hearing dates:	26 March 2021
Decision date:	09 April 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	SENTENCE: Aggregate sentence of 3 years 4 months with a non- parole period of 2 years 1 month. PROCEEDS OF CRIME- forfeiture order $23,650
Catchwords:	CRIME – possess prohibited firearm while subject to firearms prohibition order - Use unregistered firearm-prohibited firearm - Deal with property proceeds of crime under $100,000- possess ammunition CRIMINAL PROCEDURE — Back up and related offence – not guilty plea- Deal with property proceeds of crime under $100,000 - what is a reasonable suspicion - guilty verdict- reasonable grounds to suspect that the property was the proceeds of crime SENTENCING — Relevant factors on sentence — late guilty plea- offer to plea to similar facts rejected by prosecution in local court- level of utilitarian discount determined - underlying purpose of the early guilty plea scheme- related offence defended- application of sentencing principle- purposes of sentencing - need for individualised sentence – time in custody- evidence about the offender’s background uncontroversial- unsworn evidence going to the objective circumstances of the offending of little value- offender’s medical condition and problems obtaining treatment in custody - ill‑health can mitigate punishment - assistance by facilitating surrender of pistol SUMMARY HEARING:- Deal with property proceeds of crime under $100,000 - guilty verdict
Legislation Cited:	CrimesAct1900 FirearmsAct1996 FirearmsAct1996 Criminal Procedure Act 1986 Criminal Code Act 1995 (Cth) Crimes (Sentencing Procedure) Act1999
Cases Cited:	Anderson v R (1992) 62 A Crim R 277 Barbaro v The Queen (2014) 253 CLR 58 Chenv Director of Public Prosecutions (Cth) [2011] NSWCCA 205 CMBvAttorneyGeneral NSW (2015) 256 CLR 346; [2015] HCA 9 Director of Public Prosecutions (Cth) v Ngo [2012] NSWSC 1521 Do v R [2010] NSWCCA 182 Edensv Clearly [1975} 1 NSWLR 278 Ex Parte Patmoy; Re Jack (1944) SR (NSW) 351 Forrestv Director of Public Prosecutions (NSW) [2020] NSWCA 162 George v Rocket (1990) 170 CLR 104; 93 ALR 483; 64 ALJR 384; 48 A Crim R 246 at 115 GrantvTheQueen (1981) 147 CLR 503 Hili v The Queen (2010) 242 CLR 520 HusseinvChongFookKam (1970) AC 942 Irwin V R [2019[ NSWCCA 133 Olbrich v The Queen (1999) 199 CLR 270 R v AZ (2011) 205 A Crim R R v Buckett (1994) 132 ALR 669 R v Ditmar [1973] NSWLR 722 R v English (1989) 17 NSWLR 149 RvJDX, JDXv R [2017] NSWCCA 9 RvKrstic [2005} NSWCCA 391 R v McKellar (No 3) [2014] NSWSC 106 RvQutami [2001] NSWCCA 353 R v Zotti [2002] SASC 164; (2002) 82 SASR 554 Sumrein v R [2019] NSWCCA 83 The Queen v Grant (1981) 147 CLR 503 The Queen v Pham 2015) 256 CLR 550 [2015] HCA 39 Tran v R