R v Mordaunt, Mitchell

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

Gladue v The Queen [1999] 1SCR 688 [80] R v Hayes [1984] 1 NSWLR 740 CASES CITED: 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

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.

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.

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.

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.

As sentencing judge then it will be falling to me to resolve a number of competing tensions, particularly difficult in this case, as I strive to determine an appropriate sentence for these offences before this court committed by this offender, harming, or its potential harm to the community, Gladue v The Queen [1999] 1SCR 688 [80]. My initial task requires an assessment of the objective criminality of the offences before the court, I will also need to have regard to matters personal to the offender. The starting point for such assessment requires me to make findings of fact from the evidence before the court relating to the offence and to the offender.

The offender's rehabilitation prospects will have to be assessed. Before any sentence can be made, there are other questions to be determined, such as discounts, whether special circumstances are to be found, backup charges brought from the Local Court to be finalised in this court, and ultimately the proper sentencing disposition which, to be frank, must be a term of imprisonment. None of these can be commenced until the primary facts are determined.

What weight needs to be given to all of these matters against an imperative that all sentencing should have as its primary focus, the protection of the community will also need to be determined, see R v Hayes [1984] 1 NSWLR 740, R v Rushby [1977] 1 NSWLR 597 and R v Cuthbert [1967] 2 NSWR 329.

Facts 8. In the boot of the vehicle that Mordaunt was driving, was his sports bag. Within that bag were a large number of ecstasy tablets hidden in various items of clothing. In fact, the main store of the illicit drugs was stored in the sports bag. In the centre console of the vehicle were tablets, a gram of cocaine in each of three small resealable bags, and one resealable bag containing the small quantity of ketamine. The bag on the driver's seat contained three quarters of an ounce of cocaine. I failed to mention in the bag were a set of scales. In addition to the ecstasy and ketamine, 3.3 grams of cocaine were ultimately located and 0.8 grams of cannabis was found. To his credit, Mordaunt admitted knowledge and possession of the drugs immediately.

9. He has admitted to Anita Duffy, a forensic psychologist retained by the defence, selling drugs to support his extensive drug habit and to provide him with an income. Those admissions have been further made to other medical and counselling personnel.

10. I am satisfied Mordaunt was a drug user. I am satisfied he was dealing in drugs on this night. I am satisfied the ecstasy, or at least the overwhelming bulk of it was for distribution to other users. The total number of ecstasy tablets in his possession would appear to have exceeded 300, that is, he had a capacity to sell to other small time on- suppliers.

11. The presence of $2,000, coupled with the quantity of ecstasy satisfies me Mordaunt was dealing for financial gain. I am satisfied some of the $2,000 was the proceeds of sales at some point earlier in time to his arrest. I cannot rule out that some portion of the $2,000 may have represented a "float", although the need for a float when drug dealing may seem a moot point.

12. There is no evidence which establishes any past history, if there be one, of substantial drug dealing. There is a history of some drug dealing, although the extent to which it was long-standing is difficult for me to determine.

Objective Criminality 13. From the facts as he finds them to be, the sentencing judge is required to assess the objective criminality of the offence before the court as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in this case with criminality of offences of a similar kind. It is in that way that the objective seriousness of the criminality of these offences can be evaluated. Objective criminality has an important impact in the overall sentencing, a fact that is particularly important in this case where the subjective facts are so powerful.

The courts and legislature have made it clear that drug supplying is an unacceptable criminal activity. Although I know many young people fail to understand why that is so, a moment's thought, it, seems to me, suggests that it would not be difficult to understand why drug supplying is a criminal activity. Contrary to the impression many offenders have entertained, drug supply and drug use is not a social, but rather anti-social behaviour. The courts have long recognised that in assessing the objective seriousness of drug offences, it is necessary to have regard to a drug's potential for harm. Harm to others when inflicted by someone else, such as in acts of violence, is anti-social. Drug dealing is equally harmful to the community because of its direct impact upon those who purchased drugs, and its indirect impact upon the community at large.

This gentleman before me should understand that, given that he had quite a raging drug addiction, or drug issues at the time of his arrest. Drug dealing and drug use is anti-social because it is a serious crime against the public health. For some, if not most, drugs such as these that I am concerned with here can be addictive. Some are destructive, causing or contributing to mental health problems and/or aggression and/or psychosis. Supplying drugs can lead to, create or sustain drug addicts. A moment's thought, makes obvious, drug addicts are human beings with a diminished capacity to function and to feel normal. They are smothered to a greater or lesser extent by the addiction and other effects of drugs. That is the real essence of the criminal harm done by suppliers of drugs, that is, that in a greater or lesser way, they are contributing to the disenabling of other human beings by dealing in drugs. It is in that sense that drug supplying undermines public health.

Associated with drug addiction are other forms of crime, such as armed robbery, break, enter and steal, that is the loss of property of an owner usually arising from that owner's productive efforts. Associated with robbery and break and enter offences is trauma, emotional and psychological damage to victims caused by violence and/or intrusion into their homes. The spending of money on drugs by addicts without corresponding productivity by drug dealers amounts to a monumental transference of wealth, usually from the already poor, without any corresponding economic gain to the community. At every level then, drug dealing is criminal conduct because of its anti-social connotations.

There is no suggestion that in his drug dealing, this offender was recruiting new drug users. I can only assume he was selling to those wiling to buy who, all things being equal, were established users. I have noted already he had sufficient quantity to sell to small time on- sellers. His possession of 300 tablets would not mean 300 deals, it is likely these tablets would not have extended beyond 50 far smaller deals. The drug dealing, in so far as the most serious offence before me is concerned, was in tablet form. What flows from that is that there was no need to inject it. Injection has a potential for dirty needles and increases potential for harm. While I have referred to harm drug dealers as a collective may do, the potential for harm from this cash was really limited to sustaining bad drug habits in established users. These 352 grams of ecstasy qualifies as a commercial quantity. To place that in context, the lower threshold for a commercial quantity is 125 grams, a large commercial quantity begins at 500 grams. Between these two boundaries 351 grams is closer to two thirds of the way (375 grams) towards a large commercial quantity. That is an extremely telling factor in this case.

I have no evidence of the street value of the ecstasy or the ketamine in Mordaunt's possession. That is a matter that would need to be proved by the prosecution beyond reasonable doubt. It is not appropriate for me to make any finding other than it must have been of significant value.

This offence carries a standard non-parole period. Thus in assessing, as I must, the objective criminality, at least as a first step, I am required to tabulate its seriousness with a view to determining that seriousness against a mid range of seriousness.

If I understand Way's (R v Way (2004) 60 NSWLR 168) case correctly, when assessing the objective seriousness, I need to take into account the actus reus, that is the actions, the consequences of the conduct and factors that impinge upon the mens rea. Both in the facts and earlier in this section, I have set out aspects of the actus reus so far as they are known. I have sought to assess the potential consequences of the offence. In this case, the potential consequences were not achieved because of the interception of the drugs by police. Of course there is authority that muzzles any benefit the offender might reap from the frustration of his criminal drug enterprise by seizure of his product.

So far as the mens rea is concerned, he knew he had the drugs and he admits he was supplying. I accept he had an extensive drug habit, and that in part motivated his selling drugs. Anita Duffy was apparently told by him the drugs were an adjunct to his clubbing and social networking. She was not told, but it would seem now obvious, that they were also an adjunct to his gambling.

The Crown sought to argue the offence fell above the mid range. As best I can tell, that is because the quantity of drugs is more than half way between the lower and upper thresholds of commercial quantity. While I accept the greater the quantity, the greater the criminality is likely to be, that fact is not presented to me as a determinative factor, but rather, an important factor to be taken into account, along with others.

It would appear to me the dealing was done for two motives, to obtain funds for further drug use, and for financial gain. The financial gain, it appears to be me, was centred upon a lifestyle, including a lifestyle involving gambling. I am satisfied the selling was not done solely for financial gain, but in the end, mostly for the financial gain that was obtained from it.

While there was a capacity to sell to on-sellers, there is no evidence that was done. Such a factor again should be proved beyond reasonable doubt, rather than speculated upon. The potential for actual harm, was real but upon analysis, I have found most likely limited to sustaining bad drug habits in smallish number of established users.

In Way's case, the observation is made that the typical or common case is not necessarily representative of an offence falling within a mid range of objective seriousness for that offence. This case has many features in common with other cases. One favourable difference is that in this case the offender has no prior history of drug dealing, and was not on conditional liberty at the time of offending, both features often common in deemed supply and actual supply cases. Against that background then, and those findings, I assess this case marginally below the mid range of seriousness.

Subjective Matters 26. Family dynamics, relationships and background matters. Mitchell Mordaunt is presently aged twenty-one, he was twenty at the time of his offending. He is the youngest of three boys raised in Sydney's north shore. His father runs his own carpet cleaning business. His mother is a hairdresser. The eldest brother was a commando for seven years in the Australian Army. His other brother is a stock broker. He had a girlfriend for two years, but broke off the relationship because of the likelihood he would be imprisoned.

27. If that is the reason, it is not a sound one, because the more support he has, the better he will handle it. At the time of his offending, he had moved into the nightclub scene which brought with it new associates and an all night lifestyle.

Employment, Education and Skills 28. A graduate of St Pius X College, Chatswood, champion school swimmer, rising to the elite level of swimming for New South Wales, he took up water polo, again playing at an elite level for New South Wales and Sydney University. He was interested in an apprenticeship, but appears to have been distracted. He began to go to clubs and was offered jobs promoting and organising guest lists for free entry into clubs. He associated with promoters, he lacked the discipline to stay with his regime of swimming, training and water sports competition. He surrendered to a hedonistic lifestyle.

29. Since arrest, he has worked as a carpenter, but has not committed to that career. He has worked with his father, but gave that up. He is now unemployed, although he does one to one and a half hours gym work daily, but that would appear to leave twenty two hours of free time each day.

General Health 30. He was diagnosed with ADHD at the age of twelve, was medicated for that condition and as noted above, was able to complete high school. There is a history of diabetes in the family, which may expose him to some vulnerability. Since his arrest, he has returned to focus upon physical fitness and body building.

Mental Health 31. He was subjected to some testing by Anita Duffy, the results were significant on the schizoid measure. Interestingly enough, when I wrote that, I had noted that he had been ten months or more free of drugs. I have today received a report tendered by the defence relating to a recent psychotic episode and his review by Doctor Grant Sara; the report is dated 29 August. She notes that she has provisionally diagnosed a schizophreniforme psychosis and a poly drug (stimulant hallucinogenic) dependence in remission. The Doctor notes in the report that the offender's extensive stimulant and hallucinogenic use were the major risk factors in his development of psychosis. It is not uncommon for psychotic symptoms to be worsened to exacerbated after reduction or cessation of drug use. It is likely that he has been significantly anxious and depressed regarding his life situation, and the pending court appearance, and that the combination of these stresses and several days of use of a prescribed stimulant acted as a final trigger for his most recent psychotic episode.

32. Miss Duffy's interpretation of the personality profile scores was "An individual who may lack skills in interpersonal relationships, feeling uncomfortable around others and fearing rejection. Behind the detaching may be a real desire to become involved. There may be a feeling of worthlessness and inadequacy, as well as guilt underpinning his desire for the admiration and approval of others". I make the note that at twenty one, a male personality profile is far from settled.

33. In April 2009, there is material now before me that the family noted changes in the offender's mental state. He became restless, with frequent pacing, a marked increase in his irritability, he had seen his former paediatrician who suggested a trial of stimulant medication, which he commenced. There is some dispute about how much of that was taken. However, following the medication, there appears to be a significant further deterioration with marked overactivity, restlessness and pacing, and markedly reduced sleep.

34. On 28 May, he was taken to the emergency department at Manly Hospital following two episodes of inexplicable violence. In one, he reportedly punched a sleeping brother for no apparent reason. In the other, he shook his mother while in what she described as a trance like or disassociated state. He was admitted to east wing at Manly Hospital. He reported auditory hallucinations, including voices commanding him to hurt his brother and mother. He appeared perplexed and confused with a fatuous effect and periods of giggling and smoking. He was commenced on regular anti-psychotic medication and settled very slowly. Throughout this admission, he was described as remaining distant and guarded, unable to give a clear account of the recent episode, and it was in those circumstances that the diagnosis of schizophreniforme psychosis was made. He was ultimately discharged on 30 June 2009.

35. I draw that to the attention of the court because of course he still must present as vulnerable in his mental health.

Drugs and Alcohol 36. Against a sporting upbringing Mordaunt was totally free of drugs until seventeen and a half. He commenced at that age with alcohol. Thereafter he gained an interest in weekend drinking, primarily spirits. He experimented with cannabis for some months but at eighteen says he lost interest. At eighteen his journey with ecstasy began. He said he started by taking one tablet at a nightclub. By the age of nineteen he was taking ten tablets per night.

37. Next came ketamine which made him feel disinhibited and better able to focus on music. By twenty he included GHB into the mix which had an euphoric effect. Then he added cocaine to the cocktail to save him from passing out from the GHB and to clear his head. He was stoned often and would walk from one venue to the next.

38. What makes this case exceptional is his conduct post-arrest. He ceased using drugs immediately. Initially he substituted alcohol but now his consumption of alcohol is also in check. He completed a four week intensitive cognitive behavioural therapeutic group oversighted by the Manly Drug Education and Counselling Centre from the 4 February to 25 February 2009. This appears to have been followed with four therapy sessions with Ross Leonard Consulting between 16 March 2009 and 17 April 2009.

39. Mr Leonard recommended a treatment plan in May 2009 containing the following: a.) That the offender visit Dr Duffy, his former prescribing specialist at regular intervals to take any medication deemed appropriate by the prescriber, b.) To continue seeing a psychologist to understand his reactions and manage his behaviour, and c.) That he would benefit from group drug and alcohol programs.
40. I wrote before receiving the report I have received, "The evidence is silence as to what has since happened". That should be explained. This matter was initially before me on 7 May for hearing and set down for sentence on 2 June. Mordaunt was admitted to East Wing of Manly Hospital and the sentencing was unable to proceed on 2 June.

41. For one reason or another my next available date became today. A medical certificate from the Manly Hospital was signed by a treating psychiatrist but there was no detailed prognosis given. It should not be thought I am making any finding adverse to Mordaunt because of the absence of evidence. Regrettably I can make no positive finding because of the absence of evidence as to progress being made in his rehabilitation. Indeed it would seem that matters of his general mental health wellbeing have intervened in any event.

Gambling 42. Associated with Mordaunt night life style of drinking and drugs was gambling. I observed here his gambling appears to have been rapidly approaching problematic proportions. Firstly he says he would gamble when annoyed or depressed. Gambling that is linked to mood, particularly mood that requires relief, is likely to be problematic. His gambling was said to be an adjunct to drugs and alcohol. That is associated with a loss of inhibition and judgment. Such gambling is clearly problematic.

43. Thirdly the quantities of gambling include losses of $700 and $1,200 at one time. It is more than likely those funds for gambling came from the supply of drugs to others. A moment's thought will expose the double danger of that situation. I note that in the report just handed to me this morning on 29 August he has conceded that he developed financial difficulties due to gambling. That again illustrates that the gambling was problematic, probably early stages of addiction.

Character and Criminal History 44. Young Mordaunt had made a valuable contribution to the community through sport. Australia takes great pride in its sporting heroes. A sizeable portion of our community follows elite sport and the role of sport models that elite sport produces. In both swimming and water polo Mordaunt was making progress through the elite ranks. To be part of the New South Wales Water Polo Squad at nineteen or twenty suggests he had potentially a great future in that sport. He lost all that to two to three years of drug abuse and the lack of focus for all things other than drugs and an hedonistic lifestyle.

45. His arrest appears to have brought him up sharply. He appears to have dedicated himself to recovery and healing. He has ceased involvement in criminal activity, in the eighteen months or so since his arrest. He has no prior convictions.

Attitude to Offence 46. He appears genuinely remorseful. He has the support of his family, has set about change of his lifestyle, has worked hard in the past eighteen months to redeem himself.

Plea Status 47. He was committed for trial. His counsel says there was a legal issue to be investigated, namely the legality of the search of the motor vehicle I do not doubt for one minute that that is so. I do intend to give him a benefit for his plea but it cannot be the full benefit. The full benefit is reserved for those whose plea offers the greatest utilitarian benefit to the criminal justice system, that is saves resources of the court, the prosecution and the defence.

48. Other benefits such as maintaining confidence in the system by having guilty persons acknowledge their guilt and being punished for it and the diminished likelihood of appeal against the conviction still remain. Mr Watts made clear to the prosecution, it would seem, there was no issue as to the facts, simply the legal issue. The plea was ultimately entered on arraignment. It deserves and will be given a twenty per cent discount.

Rehabilitation Prospect 49. And again most of this was written before I received this report. Thus far Mordaunt has progressed his rehabilitation prospects well. He has sought and attended counselling. He has cleared himself of drugs and, as I apprehend, gambling. He has strong family support. There is no history of offending. There is nothing in his personality profile suggesting anti-social tendencies. He has a focus on physical fitness.

50. Frankly the only worry is that he must face a period of custody. All the feedback I receive from offenders who have been in custody and the social scientists, is that prison does not advance rehabilitation. Regrettably there are some times and this is one of them when rehabilitation must be put in peril so that the other purposes of punishment can be accomplished. But there is high authority that courts dealing with young offenders and a twenty-year-old offender is a young offender, must give weight to the rehabilitation of offenders. It seems to me, particularly in this case, where there appears to be a strong predisposition towards rehabilitation, [see] R v Hearne (2007) 124 A.Crim,R. 457.

51. But for prison I would have rated the prospects of the rehabilitation as high. I note Probation and Parole Service regard him as needing a low level of intervention by their service. Against that initial assessment I modified to this extent that the fragile mental health is a matter that may impact upon his capacity to rehabilitate. It is important that he deals with that and heals himself as best he can by taking such medications as are prescribed for him. In the event that he does not, he may, for instance, take his inexplicable violence to others outside the family where charges would be likely to arise. So for that reason he needs to work on healing.

Setting the Sentence 52. A moment ago I referred to the purposes of sentencing. A paramount purpose of sentencing in this case are focused upon punishment, general deterrence which in turn are focused upon protection of the community. That is because of the quantity of drug involved and the purpose for which the drug was in Mordaunt's possession.

53. I have explained that drug dealing is a crime against public health. This offender's experience with drugs for the two to three years, bears out how surreptitiously and effectively, drug undermines health. Trading in drugs is regarded as a social evil demanding punishment and deterrence to others.

54. A substantial term of imprisonment is required to make clear to others and this offender that punishment and deterrence are paramount for sentencing of this kind. But I also seek to give a proper emphasis to rehabilitation and to minimise the contra-effect full time custody will have upon his rehabilitation. I intend to give a short but substantial period in custody with a longer period on parole. The offender should understand that in the event of any breach of parole, the minimum period he is likely to serve on any return to prison will be twelve months. That is because the Parole Board would not review his parole situation once his parole is revoked for a period of twelve months.

Totality 55. There are two offences on the indictment and three offences on the 166 certificate. All of these items were found in the possession of the offender at the same time. His criminality in respect of each was occurring simultaneously, in those circumstances I intend to give concurrent sentences but to distinguish them by adjusting the penalty of each to reflect its criminality. This will mean that I will sentence for the supply MDMA. The major sentence will be inflated somewhat to reflect totality, but of course it cannot be inflated beyond what is an appropriate sentence for its criminality.

Standard Non-parole Period Determination 56. The supply of MDMA carries a seven-year non-parole period for an offence falling within the midrange. I have determined as a fact that the offence I am dealing with falls marginally below the midrange. If I be wrong in that there are matters in s 21A(2)(iii) of the Crimes (Sentencing Procedure) Act that would also impact upon a question of whether a standard non-parole period should apply, particularly his plea of guilty, rehabilitation prospects, a person of prior good character and a person without prior criminal record and in my view the principles enunciated in Hearne might bring him out of the standard non-parole period requirement. Mr Watts sought a periodic detention outcome. Frankly, periodic detention was an unrealistic option given the seriousness of the charge.

Custody 57. Mr Mordaunt has not been in custody to date. But for the plea of guilty I would have set an overall sentence of three and a half years on the supply of the MDMA. I discount that sentence by twenty per cent which if my maths is correct equals eight months, making a total sentence of thirty four months, that is two years and ten months.

In respect of the second count on the indictment but for the plea of guilty I would have set a sentence of fifteen months imprisonment. Applying a twenty per cent discount that reduces that to a twelve month sentence.

In respect of the 166 matters I have given no discount simply because they will be served before the sentence will expire.

In respect of the possession of cocaine I set a sentence of six months.

In respect of the cannabis I will be convicting him pursuant to 10A.

In respect of the goods in custody three months.

Sentencing 63. Mr Mordaunt, would you stand up please while I just get this indictment. Mitchell Bradley Mordaunt, you are convicted that you on 7 March 2008 at Sydney did supply an amount of prohibited drug, namely 3,4-methylenedioxymethylamphetamine, that is ecstasy, being an amount which was not less than a commercial quantity applicable to that drug. For that offence I set a minimum term of nine months to date from today and to expire on 17 June 2010. I set a balance of term of two years and one months.

64. I have explained why it is that I have come to special circumstances. That balance of term will expire in 17 July 2012. In respect of the second charge on 7 March you are convicted that you on 7 March at Sydney did supply a prohibited drug, namely ketamine. For that you are sentenced to a minimum term of nine months to expire on 17 June 2010 and an additional term of three months to expire on 17 September 2010.

65. In respect of the 166 matters, for the possession of the cocaine I sentence you, you are convicted and sentenced to a six months fixed term.

66. In respect of the goods in custody you are convicted and sentenced to a fixed term of three months. Both of those sentences to date from 18 September, that is today, and will expire when their time comes up.

67. In respect of the conviction for this 0.8 grams of cannabis you are convicted pursuant to s 10A of the Crimes (Sentencing Procedure) Act.

MCLEAN: There is also an application for a forfeiture order in relation to the 2000--

WATTS: There's a notice of motion, we've seen that and there's no issue about it your Honour.

HIS HONOUR: Yes, hand up the notice of motion and the orders sought.

MCLEAN: Yes, thank you your Honour, I hand up both of them and three copies to be signed, thank you.

HIS HONOUR: The orders sought will be made. The orders are that $2,000 be forfeited to the state and that the property forfeited be disposed of forthwith. HIS HONOUR: Yes, the offender may be removed into custody. Thank you.

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