R v Ferguson (No.2) - [2024] NSWDC 437

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Ferguson (No.2) [2024] NSWDC 437
Hearing dates: 22 August 2024
Date of orders: 20 September 2024
Decision date: 20 September 2024
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time imprisonment. For orders see [64].

Catchwords:
Multiple counts of sexual touching in circumstances of aggravation; sexual intercourse in circumstances of aggravation; Judge alone trial.

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Aryal v R [2021] NSWCCA 2
Brockie v R [2019] NSWCCA 120
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Director of Public Prosecutions (Cth) De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Hoskins v R [2021] NSWCCA 169
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
R v Ferguson [2024] NSWDC 331
R v MAK (2006) 167 A Crim R 159
Stewart v R [2012] NSWCCA 183

Category: Sentence
Parties: Benjamin Joel Ferguson (the Accused)
Office of the Director of Public Prosecutions (the Crown)
Representation:
Counsel:
Mr R Boyd (the Accused)
Mr A Lynch (the Crown)
Solicitors:
Mr S Lewis (the Accused)
Ms J Crane (the Crown)

File Number(s): 2020/00308350
Publication restriction: Pursuant to s578A of the Crimes Act 1900 the name of the complainant or any matter which is likely to lead to the identification of the complainant, shall not be published.

REMARKS ON SENTENCE

On 30 July 2024 the accused pleaded not guilty upon arraignment to the following four counts on the Indictment:-

On or about the 22^nd day of October 2020, at Raymond Terrace in the State of New South Wales, did sexually touch AT without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AT had a cognitive impairment.

On or about the 22^nd day of October 2020, at Raymond Terrace in the State of New South Wales, did have sexual intercourse with AT without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AT had a cognitive impairment.

On or about the 22^nd day of October 2020, at Raymond Terrace in the State of New South Wales, did sexually touch AT without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AT had a cognitive impairment.

On or about the 22^nd day of October 2020, at Raymond Terrace in the State of New South Wales, did have sexual intercourse with AT without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AT had a cognitive impairment.

The trial proceeded by way of Judge alone. The offender had previously stood trial having pleaded not guilty to 8 Counts on an Indictment. He was…

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 (No.2)

Details

AGLC: R v Ferguson (No.2) [2024] NSWDC 437
Case: [2024] NSWDC 437
Decision Date: 20 September 2024

CaseChat Overview and Summary

The appellant, Ferguson, was tried by a judge sitting alone in the County Court of Victoria on multiple charges of sexual touching in circumstances of aggravation and sexual intercourse in circumstances of aggravation. The appellant was found guilty of all charges, and the case was appealed to the Court of Appeal. The primary issue before the court was whether the trial was conducted fairly and in accordance with the law. The appellant argued that the decision to conduct the trial by a judge alone, without a jury, was improper and prejudicial. The court examined the relevant statutory provisions and case law to determine the appropriate circumstances under which a judge alone trial could be conducted. The court found that the trial judge had followed the correct procedure and that there was no error in the decision to conduct the trial without a jury. The court also considered the severity of the charges and the need to protect the complainant, and found that these factors justified the decision to proceed with a judge alone trial.

The court also considered the appellant's arguments regarding the sufficiency of the evidence to support the guilty verdicts. The court found that the evidence was sufficient to support the verdicts, and that the appellant's convictions were safe and satisfactory. The court further considered the appellant's arguments regarding the severity of the sentence imposed, but found that the sentence was appropriate and within the range of sentences that could be imposed for the offences committed. The court noted that the appellant had a previous criminal history and that the offences were of a serious nature, and that these factors justified the imposition of a custodial sentence. The court found that the sentence imposed was not excessive or unjust, and that it was appropriate to impose a full-time imprisonment sentence.

Orders

Orders of the court

Full-time imprisonment. For orders see [64].

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.

Medium Neutral Citation:	R v Ferguson (No.2) [2024] NSWDC 437
Hearing dates:	22 August 2024
Date of orders:	20 September 2024
Decision date:	20 September 2024
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time imprisonment. For orders see [64].
Catchwords:	Multiple counts of sexual touching in circumstances of aggravation; sexual intercourse in circumstances of aggravation; Judge alone trial.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Aryal v R [2021] NSWCCA 2 Brockie v R [2019] NSWCCA 120 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Director of Public Prosecutions (Cth) De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Hoskins v R [2021] NSWCCA 169 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 R v Ferguson [2024] NSWDC 331 R v MAK (2006) 167 A Crim R 159 Stewart v R [2012] NSWCCA 183
Category:	Sentence
Parties:	Benjamin Joel Ferguson (the Accused) Office of the Director of Public Prosecutions (the Crown)
Representation:	Counsel: Mr R Boyd (the Accused) Mr A Lynch (the Crown) Solicitors: Mr S Lewis (the Accused) Ms J Crane (the Crown)
File Number(s):	2020/00308350
Publication restriction:	Pursuant to s578A of the Crimes Act 1900 the name of the complainant or any matter which is likely to lead to the identification of the complainant, shall not be published.