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Court of Criminal Appeal 30 March 2012

R v Mauger

[2012] NSWCCA 51

Drugs
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE SUPPLY OF ECSTASY SENTENCE NOT MANIFESTLY INADEQUATE APPEAL DISMISSED

Citation: R v Mauger [2012] NSWCCA 51
Court: NSW Court of Criminal Appeal
Date: 30 March 2012
Judges: Beazley JA, Harrison J, McCallum J

Background

The respondent, a 32-year-old senior financial analyst earning approximately $300,000 per annum, attended a music festival at Wisemans Ferry in February 2011. Police detected 20 ecstasy tablets (5.13g) and a small quantity of cannabis on him. He admitted he intended to consume two tablets himself and give the remainder to friends over the weekend, without any profit motive.

He pleaded guilty in the Sydney District Court to supplying ecstasy under s 25(1) of the Drug Misuse and Trafficking Act 1985. The quantity was four times the indictable quantity but below the commercial quantity, carrying a maximum penalty of 15 years imprisonment. A cannabis possession charge was taken into account on a Form 1.

Her Honour English DCJ dismissed the charge without recording a conviction under s 10 of the Crimes (Sentencing Procedure) Act 1999 and placed the respondent on a two-year good behaviour bond. The Crown appealed, contending that the sentence was erroneously lenient.

  • Whether the sentencing judge erred in finding that the respondent's psychological state had impaired his judgment at the time of the offending
  • Whether the sentencing judge erred in finding that a recorded conviction would cause adverse consequences to the respondent's employment and overseas travel
  • Whether the sentence was manifestly inadequate

Decision

On the first ground, the Court of Criminal Appeal found no error in the sentencing judge's fact-findings. The psychological assessment before the court described a "regressive psychological state" arising from the breakdown of a long-term relationship. The sentencing judge was entitled to accept that evidence and to characterise the respondent's judgment as impaired, even if the circumstances were not formally "extenuating" in the classic sense.

On the employment and travel consequences, the sentencing judge had before her the respondent's contract of employment, which permitted termination if he were charged with an offence negatively affecting his duties or employer reputation, and evidence about restricted entry to Canada following a conviction. These were properly open findings on the material tendered.

On manifest inadequacy, the Court held that the sentence fell within the permissible range of discretion. Harrison J emphasised that the particular legal and social consequences of recording a conviction in this case far outweighed the requirements of punishment, denunciation, and deterrence. The Court noted that a bond under s 10, like one under s 9, operates in practice as a meaningful penalty and that the purposes of sentencing under s 3A were properly achieved by the order made.

The Court also referred to Basten JA's analysis in Hoffenberg v The District Court of New South Wales [2010] NSWCA 142, confirming that s 10(3) requires a court to determine whether the listed factors exist, but that the provision's inclusion of "any other matter that the court thinks proper to consider" preserves a broad discretion. The appeal was dismissed unanimously.

Orders Made

  • Appeal dismissed

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that a sentencing judge acts within a permissible discretion under s 10 of the Crimes (Sentencing Procedure) Act 1999 when the specific personal consequences of recording a conviction far outweigh the gravity of the offending.
  • A psychological assessment describing an offender's impaired judgment, even where circumstances are not formally "extenuating," can be a valid basis for findings in favour of a s 10 order, provided the evidence supports those findings.
  • Employment contract terms and evidence of restricted overseas travel following conviction constitute legitimate considerations when assessing whether a conviction should be recorded.
  • Under s 10(3), the listed factors (character, triviality, extenuating circumstances) are matters for the court to determine, not simply to note; the open-ended sub-paragraph (d) preserves a court's ability to consider any matter it regards as relevant.
  • Statistics showing comparable offenders who had received s 10 orders may be placed before a sentencing court, though their weight remains a matter for the judge's discretion.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 10, 33
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Records Act 1991 (NSW), s 12
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 283 ALR 1
- House v R [1936] HCA 40; (1936) 55 CLR 499
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- SBF v R [2009] NSWCCA 231; (2009) 198 A Crim R 219
- Hoffenberg v The District Court of New South Wales [2010] NSWCA 142
- Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- R v KNL [2005] NSWCCA 260; (2005) 154 A Crim R 268
- R v TMTW [2008] NSWCCA 50
- Cobiac v Liddy (1969) 119 CLR 257
- Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561
- R v Nguyen [2002] NSWCCA 183