The King v Ferns - [2022] QSC 220

SUPREME COURT OF QUEENSLAND

CITATION:

The King v Ferns [2022] QSC 220

PARTIES:

THE KING
v
JACOB ANTHONY FERNS

(accused)

FILE NO/S:

Indictment No 1493 of 2021

DIVISION:

Trial Division

PROCEEDING:

Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Delivered ex tempore on 13 October 2022

DELIVERED AT:

Brisbane

HEARING DATE:

28 September 2022

JUDGE:

Davis J

ORDERS:

1.    In respect of count 1 you are convicted and sentenced to 10 years imprisonment to commence on 28 September 2022.

2.    In respect of count 2 you are convicted and sentenced to eight years imprisonment to commence on 28 September 2022.

3.    In respect of count 3 you are convicted and sentenced to four years imprisonment to commence on 28 September 2022.

4.    In respect of count 4 you are convicted and sentenced to 15 years imprisonment to commence on 28 September 2022.

5.    In respect of count 5 you are convicted and sentenced to eight years imprisonment to commence on 28 September 2022.

6.    In respect of count 6 you are convicted and sentenced to eight years imprisonment to commence on 28 September 2022.

7.    Pursuant to s 19AB of the Crimes Act 1914, I fix a single non-parole period of eight years.

CATCHWORDS:

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS - where the accused was charged with offences concerning child abuse material - where amendments had been made to the Commonwealth Criminal Code and the Crimes Act 1914 (Cth) - where maximum sentences had been increased - where a mandatory minimum sentence was provided for - relevance of earlier comparable sentences given the amendments - whether the mandatory minimum affected the calculation of sentence - whether the mandatory minimum set new yardsticks for calculation of the sentence - determination of the appropriate sentence

Crimes Act 1914 (Cth), s 16A, s 16AAA, s 16AAC, s 17A, s 19, s 19AB, s 23ZD
Criminal Code (Cth), s 474.22, s 474.22A, s 474.24A
Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019
Migration Act 1958 (Cth)
Penalties and Sentences Act 1992 (Qld)

Bahar v R (2011) 45 WAR 100, followed
DPP (Cth) v CCQ [2021] QCA 4, considered
DPP (Cth) v D’Alessandro (2010) 26 VR 477, followed
Eldridge v The State of Western Australia [2020] WASCA 66, cited
Karim v The Queen (2013) 83 NSWLR 268, cited
Magaming v The Queen (2013) 252 CLR 381, followed
Markarian v The Queen (2005) 228 CLR 357, followed
R v Delzotto [2022] NSWCCA 117, followed
R v Goodwin; ex parte Attorney-General (2014) 247 A Crim R 582, followed
R v Karabi (2012) 220 A Crim R 338, cited
R v Latif; Ex parte Commonwealth Director of Public Prosecutions [2012] QCA 278, cited
R v Nagy [2004] 1 Qd R 63, followed
R v Nitu [2013] 1 Qd R 459, cited
R v O’Sullivan and Lee (2019) 3 QR 196, followed
R v Pot, unreported, Supreme Court of…

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 The King v Ferns

Details

AGLC: The King v Ferns [2022] QSC 220
Case: [2022] QSC 220
Decision Date: 13 October 2022

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of The King v Ferns involved the defendant charged with multiple offences concerning child abuse material. The court was required to interpret the relevant sentencing provisions in light of recent legislative amendments that had increased the maximum penalties and introduced mandatory minimum sentences for certain offences. The primary legal issues were whether the mandatory minimum sentences set new benchmarks for the calculation of the overall sentence and how to appropriately balance these with the need for a sentence that reflected the seriousness of the offences committed.

The court examined the statutory provisions and recent case law to determine the effect of the mandatory minimum sentences on the overall sentencing process. It held that while the mandatory minimum sentences did not preclude consideration of earlier comparable sentences, they did provide new benchmarks for the calculation of the overall sentence. The court took into account the gravity of the offences, the defendant's criminal history, and the principles of proportionality and deterrence in determining the appropriate sentence. Following a thorough analysis, the court concluded that the cumulative sentence should reflect the severity of the offences while also adhering to the statutory requirements.

The court sentenced the defendant to specific terms of imprisonment for each count, ensuring that the non-parole periods were set in accordance with the legislative requirements. The final orders included a conviction and sentence for each count, along with a determination of the non-parole period as mandated by the statute. The sentences imposed were designed to reflect the seriousness of the offences and to provide adequate deterrence and protection of the community.

Orders

Orders of the court

1. In respect of count 1 you are convicted and sentenced to 10 years imprisonment to commence on 28 September 2022.

2. In respect of count 2 you are convicted and sentenced to eight years imprisonment to commence on 28 September 2022.

3. In respect of count 3 you are convicted and sentenced to four years imprisonment to commence on 28 September 2022.

4. In respect of count 4 you are convicted and sentenced to 15 years imprisonment to commence on 28 September 2022.

5. In respect of count 5 you are convicted and sentenced to eight years imprisonment to commence on 28 September 2022.

6. In respect of count 6 you are convicted and sentenced to eight years imprisonment to commence on 28 September 2022.

7. Pursuant to s 19AB of the Crimes Act 1914, I fix a single non-parole period of eight years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	The King v Ferns [2022] QSC 220
PARTIES:	THE KING v JACOB ANTHONY FERNS (accused)
FILE NO/S:	Indictment No 1493 of 2021
DIVISION:	Trial Division
PROCEEDING:	Sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	Delivered ex tempore on 13 October 2022
DELIVERED AT:	Brisbane
HEARING DATE:	28 September 2022
JUDGE:	Davis J
ORDERS:	1. In respect of count 1 you are convicted and sentenced to 10 years imprisonment to commence on 28 September 2022. 2. In respect of count 2 you are convicted and sentenced to eight years imprisonment to commence on 28 September 2022. 3. In respect of count 3 you are convicted and sentenced to four years imprisonment to commence on 28 September 2022. 4. In respect of count 4 you are convicted and sentenced to 15 years imprisonment to commence on 28 September 2022. 5. In respect of count 5 you are convicted and sentenced to eight years imprisonment to commence on 28 September 2022. 6. In respect of count 6 you are convicted and sentenced to eight years imprisonment to commence on 28 September 2022. 7. Pursuant to s 19AB of the Crimes Act 1914, I fix a single non-parole period of eight years.
CATCHWORDS:	CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS - where the accused was charged with offences concerning child abuse material - where amendments had been made to the Commonwealth Criminal Code and the Crimes Act 1914 (Cth) - where maximum sentences had been increased - where a mandatory minimum sentence was provided for - relevance of earlier comparable sentences given the amendments - whether the mandatory minimum affected the calculation of sentence - whether the mandatory minimum set new yardsticks for calculation of the sentence - determination of the appropriate sentence Crimes Act 1914 (Cth), s 16A, s 16AAA, s 16AAC, s 17A, s 19, s 19AB, s 23ZD Criminal Code (Cth), s 474.22, s 474.22A, s 474.24A Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 Migration Act 1958 (Cth) Penalties and Sentences Act 1992 (Qld) Bahar v R (2011) 45 WAR 100, followed DPP (Cth) v CCQ [2021] QCA 4, considered DPP (Cth) v D’Alessandro (2010) 26 VR 477, followed Eldridge v The State of Western Australia [2020] WASCA 66, cited Karim v The Queen (2013) 83 NSWLR 268, cited Magaming v The Queen (2013) 252 CLR 381, followed Markarian v The Queen (2005) 228 CLR 357, followed R v Delzotto [2022] NSWCCA 117, followed R v Goodwin; ex parte Attorney-General (2014) 247 A Crim R 582, followed R v Karabi (2012) 220 A Crim R 338, cited R v Latif; Ex parte Commonwealth Director of Public Prosecutions [2012] QCA 278, cited R v Nagy [2004] 1 Qd R 63, followed R v Nitu [2013] 1 Qd R 459, cited R v O’Sullivan and Lee (2019) 3 QR 196, followed R v Pot, unreported, Supreme Court of…