R v Mordaunt, Mitchell - [2009] NSWDC 301

CITATION: R v Mordaunt, Mitchell [2009] NSWDC 301

HEARING DATE(S): 07/05/2009 & 05/06/2009

JUDGMENT DATE:
18 September 2009

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Supply not less than the commercial quantity of prohibited drug - Ecstacy (Count 1):Convicted.Sentenced - non parole period 9 months, balance of term 2years 1month
Supply prohibited drug - Ketamine (Count 2):Convicted.Sentence non- parole period of 9 months. Balance of term of 3 months. Sentenced to be served concurrently.
S166 matters - concurrent sentences imposed.
Pursuant to s.18 (1) of the Confiscation of Proceeds of Crime Act 1989 seized $2000.00 forfeited to the State.

CATCHWORDS: Criminal Law - Sentence - Standard non-parole period considerations - supply drugs - exstacy - commercial quantiity - 351gms - ketamine - 35gms - supply to smaller on-suppliers - heavy drug user - selling to support drug and gambling habits and lifestyle - dealing for financial gain - below mid-range of objective seriousness - elite water sportsman - good family support - young offender - developed serious mental heal issues post arrest - remorseful - plea on arraignment.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: Gladue v The Queen [1999] 1SCR 688 [80]
R v Hayes [1984] 1 NSWLR 740
R v Rushby [1977] 1 NSWLR 597
R v Cuthbert ([967] 2 NSWR 329
R v Way (2004) 60 NSWLR 168
R v Hearne (2007) 124 A.Crim.R. 457

PARTIES: Regina
Mitchell Bradley Mordaunt

FILE NUMBER(S): 2008/00011651

COUNSEL: Defence: T Watts

SOLICITORS: Crown Ms J McLean

JUDGMENT
1. Mitchell Bradley Mordaunt’s arrest by police was, it would seem, extremely fortuitous. In the early hours of the morning of 7 March 2008, he was pulled over by general duty police in The Rocks in Sydney for a breath test. It proved negative, he was allowed to go on his way.

2. Shortly afterwards, police received information, incorrect as it turned out, that the vehicle he was driving may have been stolen. The general duty police located the vehicle in Hunter Street, perhaps half a kilometre or so from where it had originally been stopped. In the course of discussions with Mordaunt, police noticed a small resealable plastic bag containing white powder on the driver’s seat. Mitchell Mordaunt was immediately arrested.

3. The vehicle was searched. In various locations in the vehicle, varying quantities of MDMA or ecstasy and ketamine were found. In total, 351.98 grams of ecstasy and 30.8 grams of ketamine were found. $2,000 was found, as I understand it, mostly in the glove box. Today, Mitchell Mordaunt is to be held accountable for his criminal conduct.

4. He pleaded guilty in the District Court on 8 December 2008 to two counts of supplying, one of ecstasy and the other of ketamine. The first supplying charge was a charge of supplying not less than the commercial quantity of MDMA or ecstasy, the second of supplying a prohibited drug, namely, ketamine.

5. As sentencing judge then it will be falling to me to resolve a number of competing tensions,…

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.

Continue reading R v Mordaunt, Mitchell

Details

AGLC: R v Mordaunt, Mitchell [2009] NSWDC 301
Case: [2009] NSWDC 301
Decision Date: 18 September 2009

CaseChat Overview and Summary

In the case of R v Mordaunt, Mitchell, the defendant was convicted on two counts of supplying prohibited drugs, specifically ecstasy and ketamine. The court was tasked with determining an appropriate sentence for the defendant, taking into account various factors including the quantity of the drugs supplied, the defendant's personal circumstances, and the objective seriousness of the offences. The court was also required to consider the impact of the defendant's offending on his mental health, as well as any mitigating factors such as his remorse and the support of his family.

The primary legal issue before the court was the determination of the appropriate standard non-parole period for the defendant's offences. The court considered the quantity of the drugs supplied, the role of the defendant in the drug supply chain, and the objective seriousness of the offences. The court also took into account the defendant's personal circumstances, including his background as an elite water sportsman, his family support, and his mental health issues that arose post-arrest. The court found that the objective seriousness of the offences was below the mid-range, and that there were significant mitigating factors that warranted a reduced sentence.

After considering all of the evidence and arguments presented, the court determined that the appropriate standard non-parole period for the defendant's offences was nine months. The court also imposed concurrent sentences for each count, with the balance of the terms being two years and one month for the ecstasy supply and three months for the ketamine supply. The court further ordered the forfeiture of $2000 seized from the defendant under the Confiscation of Proceeds of Crime Act 1989.

The court's final orders were that the defendant be sentenced to a non-parole period of nine months for each count, to be served concurrently, with the balance of the terms being two years and one month for the ecstasy supply and three months for the ketamine supply. The court also ordered the forfeiture of $2000 seized from the defendant under the Confiscation of Proceeds of Crime Act 1989.

Orders

Orders of the court

Supply not less than the commercial quantity of prohibited drug - Ecstacy (Count 1):Convicted.Sentenced - non parole period 9 months, balance of term 2years 1month

Supply prohibited drug - Ketamine (Count 2):Convicted.Sentence non- parole period of 9 months. Balance of term of 3 months. Sentenced to be served concurrently.

S166 matters - concurrent sentences imposed.

Pursuant to s.18 (1) of the Confiscation of Proceeds of Crime Act 1989 seized $2000.00 forfeited to the State.

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

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CITATION:	R v Mordaunt, Mitchell [2009] NSWDC 301
HEARING DATE(S):	07/05/2009 & 05/06/2009
JUDGMENT DATE:	18 September 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Supply not less than the commercial quantity of prohibited drug - Ecstacy (Count 1):Convicted.Sentenced - non parole period 9 months, balance of term 2years 1month Supply prohibited drug - Ketamine (Count 2):Convicted.Sentence non- parole period of 9 months. Balance of term of 3 months. Sentenced to be served concurrently. S166 matters - concurrent sentences imposed. Pursuant to s.18 (1) of the Confiscation of Proceeds of Crime Act 1989 seized $2000.00 forfeited to the State.
CATCHWORDS:	Criminal Law - Sentence - Standard non-parole period considerations - supply drugs - exstacy - commercial quantiity - 351gms - ketamine - 35gms - supply to smaller on-suppliers - heavy drug user - selling to support drug and gambling habits and lifestyle - dealing for financial gain - below mid-range of objective seriousness - elite water sportsman - good family support - young offender - developed serious mental heal issues post arrest - remorseful - plea on arraignment.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Gladue v The Queen [1999] 1SCR 688 [80] R v Hayes [1984] 1 NSWLR 740 R v Rushby [1977] 1 NSWLR 597 R v Cuthbert ([967] 2 NSWR 329 R v Way (2004) 60 NSWLR 168 R v Hearne (2007) 124 A.Crim.R. 457
PARTIES:	Regina Mitchell Bradley Mordaunt
FILE NUMBER(S):	2008/00011651
COUNSEL:	Defence: T Watts
SOLICITORS:	Crown Ms J McLean