Ferguson v Smorhun [2017] ACTSC 192 (25 July 2017)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2017] ACTSC 192

2. The remainder of the disqualification order is to run from 25 July 2017 until 19 July 2018.

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - Interference with Discretion of Court Below - appeal against conviction and sentence for drug-driving offence - appellant sentenced on plea of guilty - new claims about explanation for offence - no evidence offered for claim that cannabis and methylamphetamine baked into birthday cake by appellant's family without appellant's knowledge - conviction appeal dismissed - whether sentence is manifestly excessive - sentence was most lenient sentence available except for non-conviction order - evidence admitted on appeal of appellant's background and contribution to the community - sentence not manifestly excessive.

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - In General and Right of Appeal - appeal and consequent stay of disqualification order not notified by Court Registry to Road Transport Authority or ACT police - appellant charged with driving while disqualified while appeal on foot - appellant claimed not to have driven during most of period while appeal on foot - no scope for backdating disqualification period - remaining term of disqualification period specified having regard to period served before appeal filed.

Crimes (Sentencing) Act 2005 (ACT), ss 17, 18, 18(2), 33(1)(m)

Magistrates Court Act 1930 (ACT), s 216

Giachin v Sandon [2013] ACTSC 77; 276 FLR 180

1. Paul Ferguson has appealed against orders made in the Magistrates Court on 27 January this year. That day, he appeared represented by a lawyer from the Aboriginal Legal Service. The Magistrate convicted Mr Ferguson, on a plea of guilty, of an offence committed on 2 May 2016, being that, as a repeat offender, he had a prescribed drug (cannabis and methylamphetamine) in his oral fluid within the relevant period after having been the driver of a motor vehicle on the road. The Magistrate made a 12-month good behaviour order with a supervision condition and disqualified Mr Ferguson from driving for 12 months.

2. The maximum penalty for the offence was 25 penalty units, which is equivalent to a $3,750 fine, and 3 months imprisonment. Conviction also carries an automatic driving disqualification, which in default of a specific order is for 5 years, but which can be reduced by the court to a shorter period not less than 12 months.

3. Mr Ferguson prepared his own notice of appeal, and perhaps for that reason his appeal grounds, and indeed the orders that he intended to appeal against, were not clear. I should mention at this point that I am not confident that I properly understood Mr Ferguson's editorial style, which is why I will quote two matters set out in the notice of appeal using two possible arrangements of the relevant words.

4. The notice of appeal does not make it clear whether Mr Ferguson's appeal was solely a conviction appeal or whether, if the conviction appeal was unsuccessful, he also wished to challenge the sentence imposed. The latter challenge may be indicated by the reference in the notice of appeal to Mr Ferguson's intention to put further evidence before the Court relating to health, employment, and a matter described as "indigenous kinship reasons family race" or possibly "indigenous family/race kinship reasons".

5. In June this year, Elkaim J dealt with an application by Mr Ferguson for an order that the appeal be heard in closed court. Apparently, as a result of discussion in the course of the hearing of that application, his Honour noted that the appeal was "against conviction and sentence".

The grounds of appeal are set out in the notice of appeal. they are: "Why? Impeachment and prejudice, discrimination in closing the gap", or possibly: "Impeachment, discrimination in closing the gap and prejudice".

6. The only possible grounds of appeal against conviction that can be extracted from the papers were as follows.

(a) From the notice of appeal: that Mr Ferguson had a complaint about the way he was represented in the Magistrates Court by the Aboriginal Legal Service.

(b) From the affidavit: that Mr Ferguson was not aware of the drug-driving charge, and was dealt with on that charge when he happened to be in court in respect of a charge described by him as "breach of not attending", but which seems to have involved a failure to attend on a bail undertaking in connection with the drug-driving charge (which I will refer to as the fail to appear matter).

7. Mr Ferguson's grounds of appeal against sentence appear to relate to his not being given the opportunity, when his matter was dealt with in the Magistrates Court, to provide relevant evidence about his employment, his health, matters relating to his status and activities as an Aboriginal person, and perhaps his housing position.

8. Mr Ferguson did not provide any written submissions in support of his appeal.

9. In due course, the DPP provided written submissions. Counsel identified a possible issue in relation to each of a conviction appeal and sentence appeal, as follows:

(a) for the conviction appeal: should Mr Ferguson be allowed to withdraw his plea of guilty; and

(b) for the sentence appeal: was the sentence manifestly excessive?

10. Mr Ferguson appeared in the Magistrates Court on 13 January this year in respect of the fail to appear matter and the drug-driving charge.

11. At that point, he instructed his legal representative to enter a plea of not guilty to the fail to appear charge; there was some discussion to the effect that on the relevant day, Mr Ferguson claimed to have been either before the ACT Civil and Administrative Tribunal (ACAT) on a housing matter, or in the precincts of the Magistrates Court dealing with another matter. The fail to appear matter was adjourned to enable discussions between counsel about whether that charge should proceed. Her Honour expressed a reluctance to proceed with the drug-driving charge while the associated fail to appear charge was outstanding, and proceedings were adjourned to 27 January 2017.

12. On that date, her Honour accepted evidence that on the day of the alleged failure to appear, Mr Ferguson had been in the precincts of the court. The prosecutor did not wish to be heard, and her Honour dismissed that charge. She then went on to consider the drug-driving charge.

13. Before the Magistrate, Mr Ferguson's counsel made submissions to the effect that Mr Ferguson had not been visibly affected by the drugs in his system, and was polite and co-operative with police. She noted several health issues, and tendered a letter about this; the letter, although exhibited in the Magistrates Court, does not appear to have been provided in the Magistrates Court bundle. However, the Court Duty Report (an abridged pre-sentence report) did record Mr Ferguson's various health challenges.

14. In the Magistrates Court, counsel also noted, without challenge, that Mr Ferguson had only two drug-related charges in his criminal history, being minor possession offences in 1984 and 2009, involving drugs referred to respectively as Indian hemp and cannabis (which I understand are similar if not identical forms of the same kind of drug), and that he contributed to the Aboriginal community, among other things, as a volunteer driver. She did not, however, submit that a non-conviction order would be available to Mr Ferguson.

(a) that Mr Ferguson had been pulled over in a random check, that he was not apparently affected by the drugs in his system, and that he had no passengers;

(b) that his criminal history reduced the leniency that could be afforded to him; and

(c) that she had taken into account other matters before her, especially those in the Court Duty Report, and that Mr Ferguson's rehabilitation was an appropriate sentencing consideration, as were deterrence and community protection.

16. In the absence of any submission about non-conviction orders, her Honour did not explain or refer to why she had not decided to make such an order. Instead, she made a 12-month good behaviour order with a supervision condition clearly aimed at Mr Ferguson's rehabilitation, and reduced his automatic licence disqualification to the shortest possible period, that is 12 months.

17. On the hearing of the appeal, Mr Ferguson made the following oral submissions:

(a) that he had not knowingly used any cannabis or methylamphetamine before he was stopped by police, but that the drugs had been included in a birthday cake baked for him by family members shortly before his positive drug test;

(b) that his criminal history, at least to the extent that it referred to matters that had been finalised and for which sentences had been completed, should not be relevant in subsequent sentencing processes;

(c) possibly, in the alternative, that his criminal history should also show all the instances in which he had been accused of, or charged with, offences but in which the allegations had either been abandoned or dismissed by the court; as far as I understand, Mr Ferguson's claim was that for most of his life he had been subjected to unjustified police harassment, and he believed that this would be demonstrated by a complete "criminal history", that is one showing the totality of his involvement in the criminal justice system;

(d) finally, that as a result of his confusion about what matters were to be dealt with on 27 January, he was not personally able to put before the court all the material he wanted the court to be aware of, and that for that reason, the evidence before the Magistrate, and the submissions made on his behalf, did not properly represent the man that he was, including in particular his various educational achievements and the cultural and other contributions to the Aboriginal community that he had made over many years.

18. Counsel for the respondent said, in response to Mr Ferguson's claim about the birthday cake, that the Crown file contained notes of police advice to the effect that when Mr Ferguson was subjected to drug testing, he had been asked about what drugs he had taken in the previous 48 hours and he had mentioned cannabis and Nurofen (which I understand to be an over-the-counter pain killer).

19. Since Mr Ferguson had pleaded guilty in the Magistrates Court, his conviction appeal depended first on being given leave to withdraw his plea of guilty. Mr Ferguson did not in fact seek such leave despite the respondent having identified that as the first step in a conviction appeal, and he made no submissions about the basis on which such leave might be given. If such leave had been given, I would probably have remitted the matter to the Magistrates Court for further hearing, but in the circumstances I considered instead whether there appeared to be any basis for finding on the material before me that the plea and the finding of guilt should not stand.

20. I can find no basis for reconsidering the Magistrate's finding of guilt. Mr Ferguson's claim that the drugs found in his system were ingested in a birthday cake prepared by a family member cannot be rejected out of hand, given that the offence was detected only a few days after Mr Ferguson's birthday, but it is somewhat undermined by the respondent's description of the police claim about Mr Ferguson's admission to them.

21. Furthermore, while adding forms of cannabis to baked goods is not unknown, there is nothing before me to suggest that adding methylamphetamine to baked goods is a recognised practice.

22. Neither Mr Ferguson's claims about the source of the drugs in his system, nor the respondent's claims about Mr Ferguson's admissions to police, are the subject of anything that could be described as evidence before me.

23. In Giachin v Sandon [2013] ACTSC 77; 276 FLR 180, I considered at some length the scope for making out a defence to a drink-driving offence based on an honest and reasonable mistake about whether one's behaviour could constitute the strict liability offence concerned, and said:

63. This suggests to me that in the normal course of events the kind of belief that can be relied on to raise a Proudman v Dayman question is a belief about a "fact" that can reasonably be accepted as being within the knowledge of the defendant, such as the actual amount of alcohol consumed over a particular period. Evidence of that belief, if necessary backed up by expert evidence that the alcohol knowingly consumed should not have produced the relevant reading and evidence about where the other alcohol apparently consumed might have come from, may be sufficient to raise the possibility of an honest and reasonable mistake and prevent the prosecution proving the offence.

24. In this case, if Mr Ferguson had been able to produce credible evidence that he had not knowingly ingested either of the drugs detected in his oral fluid, and credible evidence about the real source of those drugs, he might have raised the possibility that he had made an honest and reasonable mistake so as to prevent the prosecution making out the offence. However, Mr Ferguson did not respond to my suggestion that his family members could have come to court to give evidence about what they had put in his birthday cake without his knowledge, and nor did he make any specific challenge to what counsel for the respondent said about the police report of his admissions when he was drug-tested.

25. The problem for Mr Ferguson is that on appeal it is up to him to establish a basis on which I could conclude that the Magistrates Court orders should be re-opened, and no such basis has been, or probably could be, established. The conviction appeal must be dismissed.

26. The respondent has identified any sentence appeal in this case as raising the ground that the sentence was manifestly excessive. Mr Ferguson's submissions as described above do not point to any other particular ground of challenge.

27. As already noted, in the absence of any case being made for a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT), the Magistrate imposed almost the most lenient sentence available, and imposed the shortest period of licence disqualification available. Indeed, even if her Honour had decided to make a non-conviction order, she could still, under s 18 of the Crimes (Sentencing) Act, have made a licence disqualification order, but in the absence of relevant submissions I am inclined to the view that her Honour could not have made a licence disqualification order for a shorter period than 12 months; this is because s 18(2) of the Crimes (Sentencing) Act says that when making a non-conviction order:

The court may make any ancillary order that it could have made if it had convicted the offender of the offence.

28. That is, if her Honour, having made a non-conviction order, had wished to make a licence disqualification order at all, she could only make an order that she could have made on convicting Mr Ferguson, and as already noted, that did not include a disqualification order for less than 12 months.

29. Of course, it would still have been open to her Honour to make a non-conviction order with no licence disqualification.

30. Furthermore, if there had been convincing evidence before the Magistrate, or indeed before me, that Mr Ferguson had unknowingly ingested the two drugs found in his system, and had had no other reason to believe or suspect that there might be drugs in his system, the Magistrate or I might have considered whether a non-conviction order without a licence disqualification should be made. This might have been the case even if that evidence was not adequate to make out an honest and reasonable mistake claim.

31. However, as already mentioned, there is no such evidence. No such claims were made in any form before the Magistrate. Before me, there are merely assertions from both ends of the bar table, and assertions that cannot be reconciled. This material does not provide the basis for a conviction appeal, but it does not even provide a basis for arguing that the sentence was manifestly excessive.

32. It is clear that her Honour paid significant attention to the submissions before her about Mr Ferguson's contribution to his community, and particularly to his contribution as a driver for other Aboriginal people who needed transport. This was no doubt a large part of the reason why her Honour reduced the automatic licence disqualification to the minimum allowable disqualification period.

33. Mr Ferguson's complaints about the admission of his criminal history into the sentencing process, and the absence from that history of what are said to be multiple other charges and accusations that have not been found proved against him, raise interesting philosophical questions that may deserve further consideration in another forum, but there is no doubt that his prior offending is admissible in a sentencing hearing under s 33(1)(m) of the Crimes (Sentencing) Act which refers to:

the cultural background, character, antecedents, age and physical or mental condition of the offender.

34. Antecedents is a word often used in this context to describe a person's criminal history.

35. Finally, there is Mr Ferguson's complaint about the Court's failure to recognise him properly as the man that he is, including in particular his various educational achievements and the cultural and other contributions to the Aboriginal community that he and his forebears have made over many years.

36. At the hearing before me Mr Ferguson tendered, and I received without objection from the respondent, a considerable bundle of documents that give far greater depth and breadth to the brief account of Mr Ferguson and his background that appears in the Court Duty Report. That bundle includes the following documents:

(a) a curriculum vitae from Mr Ferguson noting:

• (i) some study by Mr Ferguson at three Australian universities, including the University of Canberra, the award of various certificates evidencing training in areas such as herbal medicines, first aid, Horticulture III, kitchen operations, and football coaching;
• (ii) work as an apprentice motor mechanic, in landscape design and in horticulture; as a youth worker in Gilgandra and for Sydney University; as a research officer for the Australian Institute of Aboriginal and Islander Studies; and as a museum host at the National Museum of Australia;

(b) a 2008 certificate from the ACT/NSW State Manager of the Child Support Agency, recognising Mr Ferguson's contribution to NAIDOC for his promotion of a better understanding of indigenous culture;

(c) a NSW Certificate of Registration dated 2004 of a business name for a business owned by Mr Ferguson, and a detailed business plan prepared by Mr Ferguson for a different business marketing indigenous health care products;

(d) numerous poems and stories written by Mr Ferguson, dealing with his own life experiences as well as those of other Aboriginal people whose stories he has learnt; and

(e) documents recording the enduring involvement of Mr Ferguson's father, John Ferguson (an ordained minister of the Uniting Church) and grandfather William Ferguson (among other things the Secretary of the Aboriginal Progressive Association in the 1930s) as representatives and leaders of Aboriginal people, including in particular extracts from a report written in 1949 by his grandfather after a visit to places including Dubbo, Boggabilla, Moree and Collarenebri to inspect reserves on which many of the local Aboriginal families lived.

37. It is clear that Mr Ferguson and his forebears have made a significant contribution over many years to the lives of Aboriginal people in the ACT and New South Wales, and perhaps more broadly still.

38. It is in one sense unfortunate that Mr Ferguson did not get an opportunity to put some of this material before the Magistrate. On the other hand, it is necessary for Mr Ferguson to understand that Magistrates Courts are busy places. Magistrates are expected to deal with large numbers of individuals in the course of a day. Many if not all of those people might like to be able to explain themselves and their lives to the Magistrate in detail before sentence is passed, but the courts are simply not resourced to allow that to happen.

39. More significantly perhaps in this particular case, I do not think that it would have made any difference to the Magistrate's conclusions if her Honour had been more aware of the man who Mr Ferguson was, and of his many capacities and contributions.

40. As already noted, the Magistrate had imposed the most lenient sentence available short of a non-conviction order, despite Mr Ferguson's circumstances, which included the following:

(a) that he was charged as a repeat offender because of prior convictions for drinkdriving;

(b) that he had four prior findings of guilt for drink-driving offences on his criminal history (there were two convictions recorded in the ACT, but it is not clear whether the orders made in NSW in two other cases included convictions);

(c) that he also had numerous other traffic offences, assaults and breaches of protection orders on his criminal history; and

(d) that no extenuating circumstances, or any other relevant matters, were identified in the Magistrates Court that might at least have required the Magistrate to consider the availability of a non-conviction order.

41. I would not assert that a non-conviction order could never be available to an offender in Mr Ferguson's circumstances, but it is not easy to imagine a case in which such an order would appear to be appropriate despite all those factors.

42. In this case, Mr Ferguson needed to persuade me not only that a non-conviction order would have been an appropriate disposition in this case, but also that anything more severe than such an order was manifestly excessive. He has not done so, and accordingly his sentence appeal must also be dismissed.

43. There is then a question about the appropriate orders to be made in this case.

44. Under s 216 of the Magistrates Court Act 1930 (ACT), the sentence imposed by the Magistrate was stayed by the filing of Mr Ferguson's appeal, and it remains stayed until the appeal is resolved.

45. In response to questions from me, Mr Ferguson gave the following information about events since he was sentenced in January:

(a) when he was sentenced, he had been ordered to hand in his driver licence, but he had not had the licence with him at the time (it was not in the wallet he was carrying that day), so he could not hand it in immediately;

(b) he had not understood that filing his appeal stayed the Magistrate's orders, and that accordingly, except as described below, he had not driven since he was disqualified on 27 January this year.

46. It seems, however, that the staying of that sentence has never been brought to the attention of the Road Transport Authority (RTA) or the ACT police. Mr Ferguson was, as noted, unaware of that fact, and inquiries of the Court Registry have revealed that there has been no notification of the appeal by the Registry to either the RTA or to police.

47. This may explain one aspect of Mr Ferguson's description of the one occasion on which he had driven since his appeal was filed. Mr Ferguson said that only two weeks ago he had realised that his car's registration had expired, and he had taken his car out to Mitchell for a purpose apparently connected with renewing the registration.

48. Perhaps predicably, it seems that the unregistered car had been detected by passing police officers, who stopped Mr Ferguson, identified his driver licence as disqualified, and confiscated the licence. I understand that Mr Ferguson has now been charged with driving while disqualified and other offences, including another offence of drugdriving.

49. The legal position in relation to the current sentence and appeal appears to be clear:

(a) Mr Ferguson's sentence was stayed from the filing of his appeal;

(b) he was therefore not disqualified from driving after that point by the orders made in the Magistrates Court;

(c) in making consequential orders after dismissing the appeal, I may re-set the dates of the disqualification, but that term may not be backdated; and

(d) when Mr Ferguson's conviction is confirmed in the course of dismissing his appeal, the period of licence disqualification remains 12 months.

50. Because the disqualification order cannot be backdated, I cannot account for any period during which Mr Ferguson refrained from driving by simply re-setting the disqualification period to have run from a specified date in the past.

51. However it may be that, without purporting to reset the disqualification period, I can make a consequential order noting the portion of the disqualification period remaining to be served, which would at least take account of the period between Mr Ferguson's sentencing and the filing of his appeal, and may in appropriate circumstances permit a court to reflect other periods of abstinence from driving since then.

52. In this case, however, given the uncertainty about Mr Ferguson's actual period of abstinence from driving, and the complication provided by Mr Ferguson's new charges, I propose only to make an order accounting for the five days between the imposition of sentence and the filing of the appeal.

(a) that the appeal is dismissed; and

(b) secondly that, the dismissal of the appeal having ended the stay of the Magistrate's disqualification order, the remainder of the disqualification order is to run from today until 19 July 2018.

54. Finally, it is necessary to note explicitly that under s 216 of the Magistrates Court Act, the Magistrate's order disqualifying Mr Ferguson from driving was stayed with effect from 1 February this year until today and, accordingly, his licence was not during that period disqualified as a result of that order, despite the Court Registry's failure to inform either the RTA or the police of the appeal and the consequent stay.

I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.