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.