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Court of Criminal Appeal 31 May 2024

Ferguson v R

[2024] NSWCCA 81

Sexual offences

Citation: Ferguson v R [2024] NSWCCA 81
Court: NSW Court of Criminal Appeal
Date: 31 May 2024
Judges: Davies J (at [1]), Button J (at [110]), Sweeney J (at [118])

Background

The applicant was convicted by a jury of two charges: aggravated sexual act (masturbating himself in the presence of the complainant) and aggravated sexual touching (shaving the complainant's pubic hair). The complainant, aged 18 at the time of the offending, was his stepson's best friend and had been diagnosed with autism spectrum disorder and a mild intellectual disability. The offending occurred over a single night in October 2020.

The applicant faced eight counts in total. The jury returned guilty verdicts on two counts, acquitted on two, and could not agree on the remaining four. For the shaving count, the applicant admitted the physical act but maintained he did so at the complainant's request. He denied all other offending.

Following conviction, the applicant was sentenced in the District Court to an aggregate term of 2 years and 4 months' imprisonment, with a non-parole period of 1 year and 3 months. He sought leave to appeal against both conviction and sentence on six grounds.

  • Whether the trial judge erred by failing to give a full good character direction to the jury
  • Whether the guilty verdicts on the two counts were unreasonable or unsupported by the evidence
  • Whether the guilty verdicts were inconsistent with the acquittal on count 8 and the hung jury on four other counts
  • Whether the sentencing judge erred in finding that the threshold for imprisonment under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) had been crossed for count 7
  • Whether the sentencing judge erred in declining to order the sentence be served by way of an Intensive Correction Order (ICO)
  • Whether the sentence was manifestly excessive

Decision

Good character direction (Ground 1): The Court held that no miscarriage of justice occurred. There is no obligation to give any particular form of character direction, and some direction was in fact given. Critically, the proposed direction had been discussed and agreed upon beforehand, and trial counsel raised no objection at the conclusion of the summing-up. The existence of a legitimate forensic explanation for the direction as given, combined with counsel's silence, was determinative.

Unreasonable verdicts (Ground 2): The Court, examining the totality of the evidence, rejected the applicant's submission that the guilty verdicts were unreasonable. The complainant's early complaint and the fundamental consistency of his subsequent accounts across multiple retellings provided a sound evidentiary basis. The Court emphasised that the mere presence of contradictory evidence does not render a verdict unreasonable.

Inconsistent verdicts (Ground 3): The Court confirmed that the principles governing inconsistent verdicts apply in only very limited circumstances where one outcome is a failure to reach a verdict rather than an acquittal. This case did not fall within that narrow class. Rational explanations existed for the count 8 acquittal: the complainant had initially given no evidence about that count until his memory was refreshed under s 32 of the Evidence Act 1995 (NSW), and his unsupported mid-trial introduction of a machete as an explanation for his silence provided the jury with ample reason for reasonable doubt on that count specifically.

Sentence appeal (Grounds 4 to 6): The Court divided on Ground 4. The majority (Sweeney J and Davies J) held that, taking into account the applicant's functional neurological disorder and its effect on the experience of custody, it was not open for the sentencing judge to find that no sentence other than imprisonment was appropriate for count 7. Button J dissented, finding that experienced trial counsel's concession was open to be made and the judge was entitled to act upon it. On Ground 5, the Court unanimously found no error in how the sentencing judge approached the ICO question. She had thoroughly considered all relevant factors, including community safety as the paramount consideration. The Court allowed the appeal and resentenced the applicant.

Orders Made

  • Leave to appeal against conviction refused; conviction appeal dismissed
  • Leave to appeal against sentence granted; sentence appeal allowed
  • Aggregate sentence imposed in the District Court quashed
  • For count 4: 18 months' imprisonment with a non-parole period of 12 months, backdated to 5 August 2022 (non-parole period expired 4 August 2023; sentence expired 4 February 2024)
  • For count 7: Community Correction Order of 6 months' duration, commencing 31 May 2024, with standard conditions

Key Takeaways

  • A trial judge is not obliged to give any particular form of good character direction. Where some direction is given, it has been agreed upon by counsel, and no objection is raised at the conclusion of the summing-up, a miscarriage of justice will be very difficult to establish.
  • Contradictory evidence at trial does not, without more, render a verdict unreasonable. The Court of Criminal Appeal's task is to assess whether, on the whole of the evidence, it was open to the jury to be satisfied of guilt beyond reasonable doubt.
  • Inconsistent verdict principles apply only in very limited circumstances where the inconsistency is between a guilty verdict and a hung jury (rather than an acquittal). A rational explanation for the differential outcome will ordinarily defeat such a ground.
  • Under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing court must independently assess whether the threshold for imprisonment is crossed, even where experienced counsel has conceded the point. A concession does not relieve the court of that obligation, and on the majority's view the applicant's personal circumstances here rendered it error to accept that concession.
  • An ICO cannot be backdated under s 71 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Where an applicant has already served a substantial portion of their sentence by the time of resentencing, the Court of Criminal Appeal may decline to impose an ICO on the basis that doing so would expose the applicant to a greater risk of a more severe outcome through potential revocation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61KD, 61KF
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 8, 22A, 66, 71, 88
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Procedure Act 1986 (NSW), s 293A
- Evidence Act 1995 (NSW), s 32
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
- Crofts v R [2018] VSCA 197
- Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- FB v R [2020] NSWCCA 137
- Kumar v R [2023] NSWCCA 156
- Latu v R [2023] NSWCCA 19
- Lee v R [2023] NSWCCA 203
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Mackenzie v R (1996) 190 CLR 348; [1996] HCA 35
- Marco v R [2023] NSWCCA 307
- Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- Sarhene v R [2022] NSWCCA 79
- Simic v The Queen (1980) 133 CLR 319; [1980] HCA