Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Mauger [2012] NSWCCA 51 Hearing dates: 28 March 2012 Decision date: 30 March 2012 Before: Beazley JA at 1 Harrison J at 2 McCallum J at 43 Decision: Appeal dismissed Catchwords: CRIMINAL LAW - Crown appeal against sentence - supply of ecstasy - whether sentencing judge erred in finding that respondent's mental condition was such that his judgment was impaired - whether sentencing judge erred in finding that respondent would face adverse consequences in relation to his employment and ability to travel overseas if a conviction was recorded - whether sentence was manifestly inadequate - sentence not manifestly inadequate - appeal dismissed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Records Act 1991 Drug Misuse and Trafficking Act 1985 Cases Cited: Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303; 61 NSWLR 305 Cobiac v Liddy (1969) 119 CLR 257 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 283 ALR 1 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 Hoffenberg v The District Court of New South Wales [2010] NSWCA 142 House v R [1936] HCA 40; (1936) 55 CLR 499 R v KNL [2005] NSWCCA 260; (2005) 154 A Crim R 268 R v Nguyen [2002] NSWCCA 183 R v TMTW [2008] NSWCCA 50 SBF v R [2009] NSWCCA 231; (2009) 198 A Crim R 219 Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Category: Principal judgment Parties: Crown (Appellant) Oliver James Tama Mauger (Respondent) Representation: S Dowling (Appellant) R Sutherland SC (Respondent) Solicitor for Public Prosecutions (Appellant) Armstrong Legal (Respondent) File Number(s): 2011/62157 Decision under appeal Date of Decision: 2011-11-23 00:00:00 Before: English DCJ File Number(s): 2011/62157 Judgment 1BEAZLEY JA: I agree with Harrison J. 2HARRISON J: The Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 against a sentence imposed upon the respondent by her Honour English DCJ in the Sydney District Court on 23 November 2011. The respondent pleaded guilty to supplying 5.13g, or 20 tablets, of 3,4 methylenedioxymethylamphetamine or ecstasy contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. A charge of possessing 3.1g of cannabis was taken into account on a Form 1 pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999. The amount of ecstasy was four times the indictable quantity but less than the commercial quantity. The offence could therefore not be dealt with summarily. The maximum penalty is 15 years imprisonment. 3Her Honour dismissed the charge without recording a conviction pursuant to s 10 of the Sentencing Procedure Act and ordered the respondent to enter into a good behaviour bond for a period of two years. The Crown relies upon the following grounds of appeal: Ground 1: The sentencing judge erred in finding that: (a) the respondent's mental condition was such that his judgment was impaired; and (b) the respondent would suffer adverse consequences to his employment and his ability to travel overseas if a conviction was recorded. Ground 2: The sentence is manifestly inadequate. 4For the reasons that follow, I consider that the appeal should be dismissed. Background 5On Saturday 19 February 2011 the respondent, who was then 32 years old, attended the Playground Weekender music festival at Wisemans Ferry. He was in possession of 20 ecstasy tablets and a small amount of cannabis. These were detected by a police dog. The respondent was arrested. He admitted possession of these drugs and that he intended to take two tablets himself and give the balance to friends over the course of the weekend. The cannabis was said to be primarily for his own use. The respondent had paid $800 for the ecstasy. He told police that he had not discussed the subject of whether of not he would be paid for the tablets supplied to his friends. Proceedings on sentence 6The respondent gave evidence. He said that he was employed by Perpetual Limited as a senior analyst. He regularly travelled to the United States of America for work. He had not told his employer about the charges because he was concerned about the ramifications. The respondent said that he was not a regular drug user and expressed shame and remorse for his offending. 7The respondent was uncontroversially accepted to be a person with a low risk of re-offending. 8The respondent's contract of employment was tendered and provided relevantly that his employer could terminate his employment if he was "charged with a criminal offence which in [the employer's] reasonable opinion may negatively impact upon [his] ability to perform [his] duties or may negatively impact upon [his employer's] reputation". Evidence also indicated that entry into Canada may be prohibited to a person who had committed or who had been convicted of a criminal offence. 9The respondent relied upon an assessment of his psychological condition from Mr Borenstein who noted that prior to the commission of the offences the respondent had been in a "regressive psychological state" caused by the recent break-up of a long-term relationship and the commencement of a new one with another woman. Mr Borenstein noted that the respondent had sought escape and considered using drugs with new friends would provide it. Mr Borenstein opined that the respondent's prospect of reoffending was "as close to nil as it is possible to predict". Subjective features 10The respondent has no criminal antecedents. He is from a stable upbringing in a loving family. He has a B Comm from the University of Auckland and has almost completed a Masters Degree in Applied Finance at Macquarie University. He is employed in a senior role on a salary of approximately $300,000 per annum. He is not a regular drug user. He has been a committed supporter of various charities for many years and was very active in assisting Samoan villagers affected by the 2010 tsunami. Character references suggested that the offences were very much out of character. Remarks on sentence 11Her Honour recited the respondent's very positive subjective case. Her Honour found that at the time of the offences the respondent was acting from a "regressed psychological state which impaired his thinking and cloud[ed] his judgment". Her Honour accepted that the respondent was truly remorseful and that he had excellent prospects for rehabilitation. He was found to be highly unlikely to re-offend. Her Honour acknowledged that his actions carried with them the possible consequence that his career could be destroyed and that his ability to travel overseas could be severely restricted. 12Her Honour afforded the respondent a 25 percent discount for his early guilty plea and noted that the objective seriousness of the offence was at the "very lowest end of the scale". He was not an addict and had not intended to profit from what he did. Her Honour observed that considerations of general deterrence ordinarily attracted custodial sentences for offences of this nature. Statistically there were at least 19 comparable offenders who had no conviction recorded pursuant to s 10. 13In relation to the decision to dismiss the charges and not record a conviction her Honour noted the respondent's relatively young age and his mental state, which her Honour described as "not extenuating" but "certainly not usual". Her Honour emphasised that the consequences of the recording of a conviction for the offence "far outweighed the seriousness of the offence committed" and her Honour took into account the nature of the offence and the respondent's "otherwise outstanding qualities". Legislation 14Section 10 of the Sentencing Procedure Act provides relevantly as follows: "10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. ... (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider." 15Section 12 of the Criminal Records Act 1991 provides as follows: "12 What are the consequences of a conviction becoming spent? If a conviction of a person is spent: (a) the person is not required to disclose to any other person for any purpose information concerning the spent conviction, and (b) a question concerning the person's criminal history is taken to refer only to any convictions of the person which are not spent, and (c) in the application to the person of a provision of an Act or statutory instrument: (i) a reference in the provision to a conviction is taken to be a reference only to any convictions of the person which are not spent, and (ii) a reference in the provision to the person's character or fitness is not to be interpreted as permitting or requiring account to be taken of spent convictions." Applicable principles Crown Appeals 16The Crown acknowledged that the primary purpose of a Crown appeal against sentence was to lay down general principles for the governance and guidance of courts having the duty of sentencing convicted persons and that the Court had a residual discretion in the exercise of its jurisdiction under s 5D to decline to interfere with a sentence even though the sentence was erroneously lenient: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 283 ALR 1 at [1]. 17In order to succeed on ground 1 of this appeal, the Crown had to establish that the sentencing judge's fact findings were not open on the evidence or that error is shown in the sense referred to in House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-5; SBF v R [2009] NSWCCA 231; (2009) 198 A Crim R 219 at [75]. In order to succeed on ground 2 of this appeal the Crown had to demonstrate error in sentencing in the sense discussed in House v R and Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [3], [58]. By asserting manifest inadequacy, the Crown contends that the sentencing judge's orders were unreasonable or plainly unjust. In such circumstances intervention is warranted only if this Court considers that in all of the circumstances there was some misapplication of principle even though it may not be specifically identifiable in the statement of reasons: see Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [59]; Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [58]; Dinsdale v The Queen at [58]. Section 10 bonds 18Section 10 and its predecessors reflect the willingness of the legislature and the community to provide offenders with an opportunity in certain circumstances to maintain a reputation of good character and to avoid the otherwise rigid application of inexorable laws: Cobiac v Liddy (1969) 119 CLR 257 at 269; R v Nguyen [2002] NSWCCA 183 at [50]. 19Where the offence that is committed is an objectively serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope of the operation of the section decreases. The section must operate in the context of the general principle that the penalty imposed for any offence should reflect the objective seriousness of that offence: Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303; 61 NSWLR 305. However, the focus must be on the particular conduct of the offender and the circumstances of the offending rather than the nature of the offence: Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 577. 20In Re Attorney-General's Application under s 37 at [132], Howie J said this: "[132]... The section must operate in the context of the general principle that the penalty imposed for any offence should reflect the objective seriousness of the offence committed. To recognise this fact is not to impose an undue restriction upon the section or to change the criteria for its operation on an offence by offence basis. Such an approach would clearly be erroneous. It is simply to apply normal sentencing principles to the offence under consideration. However, just as the discretion inherent in the section cannot be limited by the application of some overreaching general principle, neither can it be broadened simply because a court does not agree with Parliament's view of the seriousness of a particular offence or believes that in general the penalties imposed under the scheme of the legislation are unduly harsh or unpalatable." 21Considerations of extra curial punishment may be relevant to the exercise of the discretion conferred by s 10: see R v KNL [2005] NSWCCA 260; (2005) 154 A Crim R 268 at [49] - [50]; R v TMTW [2008] NSWCCA 50 at [52]. However, it is not proper to dismiss a charge without conviction merely to avoid the operation of some other legislative provision that is otherwise applicable: R v Fing (unreported NSWCCA 25 July 1994); R v Stephenson [2010] NSWSC 779 at [66]. Consideration 22Her Honour found that the respondent's regressive psychological state "impaired [his] thinking and clouded his judgment". Her Honour held that his mental state was such that "his otherwise good judgment was clouded to such a degree that he allowed himself to engage in this criminal conduct". 23Mr Borenstein's reference to the respondent's regressive psychological state contained no comment about whether his ability to think had been impaired or his judgment had been clouded. On the contrary, Mr Borenstein set out in some detail the respondent's thoughts leading up to the offence, including that he had had a tough year at work, had recently broken up with his girlfriend and "wanted to make the last days of summer feel like freedom". 24The respondent gave evidence that he dabbled in illicit drugs and that he knew he was purchasing illegal drugs for the group. He said that he felt he had missed out on the festival experience because he had been working so hard and that he "needed a blow out". The weekend was to be a "release valve". He also agreed that he was trying to ingratiate himself with new friends by supplying the tablets. 25There is no other material to suggest that the respondent's thinking was impaired. The Crown submitted that the offences demonstrated "a fairly high degree of planning", to the extent that he worked out how much he needed to supply the whole group and purchased the tablets in advance. Far from suggesting that he was impaired in his judgment, the respondent's evidence suggests a single minded clarity of thought. It is difficult to discern the precise evidentiary basis for her Honour's findings about the respondent's mental state and in my opinion her Honour must have misconstrued the facts to reach her conclusion. In doing so she fell into error. 26Her Honour's decision not to record a conviction would also appear to have been influenced by what she described as "the consequences of the recording of a conviction". That was a reference to the possibility that the respondent might lose his job and be prevented from travelling overseas. Her Honour appears to have assumed that by granting the respondent a 27s 10 bond and not recording a conviction, the respondent would not suffer negative consequences in either respect. The Crown contended that no such assumption was correct. 27So far as his employment was concerned, the Crown emphasised that it was the fact of being charged with a criminal offence that attracted the prospect of the termination of his employment. The recording of a conviction was said in those circumstances to have no bearing on any difficulty that was or that may have been created by the singular fact of being charged. 28I do not agree. The obligation to reveal the existence of a conviction arises in common experience from time to time. It is not to the point that the respondent's employer in this case reserved to itself a discretion to take certain steps concerning the respondent if he had been "charged" with an offence. That reservation logically suggests that the employer treated the fact of being charged as a serious matter, so that in all likelihood it would consider a conviction for an offence to be more serious. It is not the case that being charged "leads" automatically to dismissal. The respondent's employer may terminate his employment if charged with a criminal offence that the employer reasonably opined may negatively impact upon his ability to perform his duties or upon the employer's reputation. It is not difficult to imagine a circumstance where the fact of a charge unaccompanied by a conviction would not trouble a reasonable employer but where in contrast the fact of a conviction may do so. In my opinion the prospect that a conviction for this offence could have possibly detrimental consequences for the respondent's employment was definitively something that her Honour was entitled to take into account and that was proper for the Court to consider pursuant to s 10(3)(d) of the Act when deciding whether or not to make an order pursuant to s 10(1) of the Act. 29So far as his travel was concerned, the respondent gave evidence that during the previous five years he had travelled to the USA on work-related trips five or six times and was required to travel regularly. The respondent led no evidence about what, if any, restrictions applied for anyone wanting to travel to the USA who had been charged with or convicted of a criminal offence. 30The Crown pointed out that there was authority for the proposition that the existence and terms of entry restrictions imposed by foreign countries on international visitors was not an appropriate matter for judicial notice: United States Surgical Corporation v Hospital Products International [1982] 2 NSWLR 766 at 801. Despite this, and the sparse state of the evidence on the topic, her Honour found that the "consequences of his actions have the capacity to destroy his career and to prevent him from travelling overseas". The Crown contended that the nature or extent of any restrictions upon the respondent's ability to travel to the USA were not supported by the evidence and his ability to travel to other counties was irrelevant and should have been given no, or very little, weight. 31I agree. It does not seem to me that generalised prognostications about the respondent's ability to travel overseas unsupported by clear evidence could properly be matters that fell within what is contemplated by the words "any other matter that the court thinks proper to consider". It may be different if the sentencing judge were confronted with evidence to suggest that a particular offender faced the loss of his livelihood as the result of travel restrictions upon convicted persons, or that he faced the prosect of the loss of the ability to visit, or return to, family overseas, in which circumstances some definite and enduring hardship or disruption could be demonstrated or confidently predicted. This is not the case here. In my view her Honour's sentencing discretion miscarried to the extent that she proceeded to a conclusion that no conviction should be recorded in a way that was based on such matters. 32I am not, however, of the view that her Honour's decision to record no conviction and to place the respondent on a s 10 bond was a manifestly inadequate result to this sentencing exercise. 33The Crown contended that her Honour's sentence does not properly reflect the multiple objectives of sentencing described in s 3A of the Sentencing Procedure Act. That section provides as follows: "3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. " 34The respondent is undeniably a person of good character with no criminal antecedents. I accept that his age is for all present purposes irrelevant. His health and medical condition are also of little if any present relevance. Nor are there any extenuating circumstances in which the offence was committed. Although minds may differ on the question, it is also not correct to characterise the offence as trivial. So much is apparent from the maximum penalty that applies to it. 35It is instructive to observe that the appropriate penalty for which the Crown contends in this case is the imposition of a s 9 bond. Section 9 of the Sentencing Procedure Act is relevantly as follows: "9 Good behaviour bonds (1) Instead of imposing a sentence of imprisonment on an offender, a court may make an order directing the offender to enter into a good behaviour bond for a specified term. (2) The term of a good behaviour bond must not exceed 5 years. (3)..." 36In this case her Honour ordered that the respondent enter into a bond for a period of two years to be of good behaviour and to come before the Court if called upon to do so. I take it to be the Crown's position that the terms of the bond that should be imposed pursuant to s 9 would be exactly the same. Upon that assumption, the only difference between the Crown and the view taken by her Honour is the fact of the recording of a conviction. It is implicit in the position taken by the Crown that the recording of a conviction is a matter of special significance or importance in this case. 37Whilst that contention is understandable as a general proposition, it is important that it not be permitted in this case to dilute or to downgrade the significance of the imposition of a bond. If the seriousness of the present offence and the need for denunciation and general deterrence are important considerations, they are to my mind more than adequately contemplated in this case by both the terms and the duration of the bond that has been imposed. The respondent has been made subject to a judicially sanctioned requirement that he be of good behaviour for a period of two years. There are onerous consequences that apply if he fails to observe that requirement. That fact alone would in my view impress the seriousness with which the Court was treating the respondent's conduct upon an objective and reasonable member of the community. It should not pass without comment that the significance of a bond, and the consequences of disregarding its conditions, is regularly considered by this Court to be important when deciding whether or not to grant bail to applicants who have allegedly disregarded the conditions and restrictions that a bond imposes. Much more than mere lip service is regularly paid in this context to the important and significant consequences for bail applications created by offences allegedly committed in breach of such conditions. It is wrong in my view to assume that the decision to not record a conviction is automatically or necessarily coextensive with the imposition of an inadequate, or even a particularly lenient, sentence. 38There seems to be little doubt that there is no strong need in this case for special deterrence. The respondent is uncontroversially regarded as a person with a very low risk of re-offending. Furthermore, this is also not one of those cases where general deterrence might be regarded as particularly important because of the notoriety of the respondent. This is to be contrasted with the recent well-publicised case of R v Wilhelm [2010] NSWSC 378 in which Howie J said this at [30]: "[30] Deterrence is an important part of sentencing, particularly when the sentence of the offender will probably receive a degree of media interest. Therefore, he is a suitable case for general deterrence because so very frequently the Court imposes deterrent sentences upon people where that deterrence is of a theoretical nature rather than of a real effect." [Emphasis added] 39Section 10(1) of the Act authorises the court to do one of three things. On one view of s 10(1), a court utilising this section has no ability to employ more than one of the paragraphs of the subsection, although that course is regularly taken. Indeed, her Honour in this case in terms dismissed the charge apparently pursuant to s 10(1)(a) and proceeded to discharge the respondent upon condition that he entered into a good behaviour bond apparently pursuant to s 10(1)(b). The Crown's contention in this case is based upon the assumption that the imposition of a good behaviour bond subject to conditions is not an adequate penalty, or is not adequate in the absence of the recording of a conviction. It seems to me on the contrary, in the particular circumstances of this case, to be completely adequate. In terms of the relative criminological and social consequences for the respondent on the one hand and society on the other hand, the recording of a conviction for the offence in this particular case is of little or no practical or theoretical consequence to the good order of the community but is by way of contrast potentially of great importance to the respondent. As Spigelman CJ said in R v Ingrassia (1997) 41 NSWLR 447 at 449, in a comment directed to a consideration of the impact of a conviction upon an individual offender, "[t]he legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a Court". 40It goes without saying that by endorsing the use of s 9 as an alternative sentencing option in this case, the Crown tacitly recognises the importance of the imposition of a bond as an effective alternative to a sentence of imprisonment. In my view it is clear that the imposition of a bond pursuant to s 10 operates in fact, and will be perceived by the community as operating, in the same way as a bond imposed pursuant to s 9. The particular legal and social consequences for the respondent of recording a conviction against him in this case far outweigh the requirements of punishment, denunciation, or special or general deterrence. The purposes of sentencing described in s 3A of the Act are in my opinion properly and adequately achieved by the imposition of a conditional bond. It was not beyond the permissible scope of her Honour's discretion to sentence the respondent in the way that she did. This seems to be clear when one has regard to authoritative statements concerning the application of s 10 such as made by Basten JA in Hoffenberg v The District Court of New South Wales [2010] NSWCA 142 at [10] as follows: "[10] Further, to say that a court "is to have regard to" certain factors (see sub-s (3)), suggests that these are mandatory considerations. However, they are really conclusions reached by the court in the course of its considerations. As is clear from s 4 of the South Australian Act, a critical question for the court may be whether the nature of the offence can properly be described as "trivial" and whether the circumstances in which it was committed were in fact "extenuating circumstances". Properly understood, the court is not to "have regard to" those factors, but to determine whether those factors exist. Finally, it seems that these are not in truth mandatory considerations, because par (d) includes "any other matter that the court thinks proper to consider". It is not meaningful to make that a mandatory consideration. Again the purpose is to ensure the court considers the full range of factors it considers relevant." 41Her Honour's sentence in this case was not manifestly inadequate. Conclusions and orders 42In my opinion the appeal should be dismissed. 43McCALLUM J: I agree with Harrison J. ********** Amendments 03 May 2012 - re-ordered paragraph numbers Amended paragraphs: 27-43 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 May 2012