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Court of Criminal Appeal
New South Wales
Case Title:
R v Mauger
Medium Neutral Citation:
[2012] NSWCCA 51
Hearing Date(s):
28 March 2012
Decision Date:
30 March 2012
Jurisdiction:
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
Crown (Appellant) Oliver James Tama Mauger (Respondent)
Representation
- Counsel:
S Dowling (Appellant) R Sutherland SC (Respondent)
- Solicitors:
Solicitor for Public Prosecutions (Appellant) Armstrong Legal (Respondent)
File number(s):
2011/62157
Decision Under Appeal
- Court / Tribunal:
- Before:
English DCJ
- Date of Decision:
23 November 2011
- Citation:
- Court File Number(s)
2011/62157
Publication Restriction:
JUDGMENT
BEAZLEY JA: I agree with Harrison J.
HARRISON J: The Crown appeals pursuant to s 5D of the Criminal Appeal Act1912 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 Act1985. A charge of possessing 3.1g of cannabis was taken into account on a Form 1 pursuant to s…
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.
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AGLC
R v Mauger [2012] NSWCCA 51
Case
[2012] NSWCCA 51
Decision Date
CaseChat Overview and Summary
In R v Mauger, the Crown appealed against the sentence imposed on the respondent for the supply of ecstasy. The Crown argued that the sentencing judge erred in considering the respondent's mental condition and potential employment and travel consequences. The Crown further contended that the sentence was manifestly inadequate and did not properly reflect the purposes of sentencing.
The court examined whether the sentencing judge's consideration of the respondent's mental condition and potential employment and travel consequences was appropriate. The court found that the sentencing judge's reliance on unsupported generalised prognostications about the respondent's ability to travel overseas was improper. However, the court held that the sentence, which involved recording no conviction and placing the respondent on a s 10 bond, was not manifestly inadequate.
The court concluded that the purposes of sentencing, as outlined in s 3A of the Sentencing Procedure Act, were not wholly disregarded. The respondent's good character, lack of criminal antecedents, and the seriousness of the offence were considered. Although the court found that the sentencing judge's reasoning was flawed, it did not deem the sentence to be manifestly inadequate.
The final orders of the court were to dismiss the Crown's appeal against the sentence.
Orders
Orders of the court
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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
The 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. I 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. I 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. The 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. " The 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.