Nair v R

Procedural unfairness 3The first proposed ground of appeal is a complaint of denial of procedural fairness in the imposition of a custodial sentence on count 1. Count 1 involved the supply of cocaine on 15 February 2009 to Victoria McIntyre, a woman providing sexual services to the applicant. Toner DCJ sentenced the applicant on that count to a term of imprisonment of two years and three months. The complaint was that, in the course of hearing submissions from counsel for the offender, he indicated an intention to impose a non-custodial sentence. 4The gravamen of such a complaint is that where a judge indicates that he or she proposes to take a particular course, favourable to one party, but then takes a less favourable course, the party affected has been deprived of an opportunity to make submissions in favour of leniency, thinking that to be unnecessary. That such circumstances may involve a denial of procedural fairness is uncontroversial: see Parker v Director of Public Prosecutions (1992) 28 NSWLR 282. The more difficult question is whether such a complaint is justified in particular circumstances. 5In the present case, counsel for the offender addressed the trial judge at some length in respect of the first count, in support of the submission that no effective penalty should be imposed, relying on the decision of R v Wilhelm [2010] NSWSC 378 (Howie J). He had in fact completed his submissions on that count and moved to "the second supply", in respect of which he proposed that the judge should impose "a very short custodial sentence": Tcpt, 30/06/11, p 50(10). Whether he had completed his submissions in respect of that offence (count 3) is unclear. However, the trial judge interposed saying: "What I had in mind was a fixed term of imprisonment which would be partially accumulated on the sentence that I was going to impose for the manslaughter matter. I propose to impose a non-custodial sentence for what it's worth in relation to the supply for reasons you outlined. But as I say and subject, of course, to what the Crown has to say to me but it does seem to me that that's the proper approach to this, overwhelmingly my concerns really are the manslaughter charge that should be properly characterised." 6Counsel for the offender then went on to deal with the manslaughter charge and other matters in relation to the personal circumstances of the offender. 7Prosecuting counsel dealt with the circumstances of the offending globally. Referring to the "party packages" by which an agency supplied both cocaine and women for sexual services to the applicant, and agreeing with the sentencing judge that the package was "a peculiarly dangerous one", prosecuting counsel (Ms Cunneen SC) continued, at Tcpt, p 62(35): "CUNNEEN: Yes your Honour, but the Crown would say as to the supply, even the first supply, the supply to Ms McIntyre wasn't an isolated incident on the night. HIS HONOUR: No. CUNNEEN: And so it wasn't perhaps as minor an offence as that described by Justice Howie in Wilhelm. HIS HONOUR: I would have thought Wilhelm is probably - the facts in [Wilhelm] are probably more serious than this supply in some ways though because he was supply[ing] drugs to somebody who - my memory of - was fairly naïve in terms of drug use. And I don't know one is supposed to characterise what happened in any one of the cases where he supplied drugs in this case - other than that the people turned up with the drugs." 8The exchange drifted off into other matters and it is apparent that counsel, whilst seeking to distinguish Wilhelm, did not make an express submission that a custodial sentence was called for with respect to count 1. Counsel for the offender did not seek to reply. 9Whether, in these circumstances, it can properly be said that counsel for the offender was deprived, in any practical sense, of an opportunity to make the submissions which he in fact made, is doubtful. If a short custodial sentence had been imposed in respect of count 1, it is unlikely that he would have been heard to complain. No doubt the sentence in fact imposed was higher than that he had anticipated, but that of itself does not demonstrate a denial of procedural fairness. A different conclusion might be reached in circumstances where the prosecutor either proposed or indicated an express acceptance of a nominated sentence: see Baroudi v R [2007] NSWCCA 48; Button v R [2010] NSWCCA 264. There was no express acceptance by the prosecutor in the present case and indeed she sought to distinguish the precedent relied upon, although she may have let herself be distracted from completing the submission by the course of exchanges with the bench. 10One factor which may tell in favour of a denial of procedural fairness is that the trial judge reserved his decision and expressly excused counsel from attending when judgment was delivered. The evidence does not indicate that either counsel was present on delivery of judgment. If the counsel who appeared for the offender on the sentencing hearing had been present, there might have been a further question as to whether he should have raised the complaint of unfairness before final orders were made. That issue does not arise, but the fact that the trial judge excused counsel may provide some support for the view that he did not then intend to depart from views already expressed. 11If a denial of procedural fairness were to be established, the result would be that the sentencing miscarried and has not yet been properly completed. Accordingly it would be necessary for this Court, if it did not remit the matter to the sentencing judge, to complete the exercise itself. That exercise would be at large, and would not be limited to review of a discretionary judgment, as would be the case if the only ground were that the sentence imposed was excessive. 12Despite some misgivings, as the majority of the Court would uphold ground 1, I will deal with the matter on the basis that no valid sentence was imposed on the first count.

Count 1 - determination of sentence 13It is convenient to start with some general considerations. First, count 1 involved a supply of cocaine (a prohibited drug) where both the offender and the recipient were adults and both were consuming the drug. As noted in Wilhelm, the Court can take judicial notice of the fact that such conduct is common and rarely comes before the courts. However, consumption of such substances is illegal primarily because of the high risks they carry for the health of the individual, risks which can, as in the present case, materialise in death. 14No doubt cases of supply usually come before the courts when a drug dealer is apprehended, perhaps supplying drugs to an undercover police officer. However, the offence is not conditional upon the supply being for the purposes of financial reward; nor is it correct to say that the applicant did not expect to benefit from the supply in the present case. His own use of the drug was designed to heighten sexual arousal and increase disinhibition. It may properly be inferred that in supplying the drug to the young woman in question he had the same expectation as to its effect on her, from which he hoped to benefit. It is not necessarily less reprehensible to supply drugs for enhanced sexual satisfaction, than for financial reward. 15The evidence presented to the District Court included a report from a forensic psychiatrist, Dr Bruce Westmore, who examined the applicant on behalf of the New South Wales Medical Board on 13 May 2004. The applicant reported to Dr Westmore that he had started using cocaine at the end of 2001 or early 2002 (Report, p 2.7 and 4.4). Dr Westmore reported (p 2): "He said initially his use of cocaine did not impact on his work although that has occurred over the last nine months. He attended work irregularly and he was required to cancel some operation lists. He said he last cancelled a list on 21 February 2004." 16He appears to have accepted the advice of a psychiatrist he was then seeing for treatment, Dr Stephen Jurd, and on 31 March 2004 wrote to the Medical Board notifying it of his "recreational intranasal cocaine use". His subsequent consultation with Dr Westmore was a consequence of a condition imposed by the Board. Over the next few years, various conditions were imposed on his continued right to practice, including, for various periods, urinalysis screening and clinical review, supervision and monitoring. A report from the Medical Board, also before the District Court, stated that the Board had received a letter from a practitioner "notifying performance concerns" in November 2008, as a result of which it commenced proceedings under s 66 of the Medical Practice Act 1992 (NSW) (now repealed), the purpose of which was to determine whether conditions should be imposed on his registration, or he should be suspended from practicing medicine, for the purpose of protecting the health or safety of any person. 17Although he had notified his superiors at Nepean Hospital, Penrith, of his problems, he had had difficulties in organising urinalysis in 2004 because he had been reluctant to tell any other medical officer of his drug abuse: Westmore Report, p 3.9. 18Against this background, an assessment must be made of the moral culpability of the applicant at the date of the charge of supply cocaine in February 2009. 19Within two months of seeing Dr Westmore, he relapsed into cocaine use in July 2004, as appeared from the history he gave to Dr Rosalie Wilcox in June 2011, who saw him for the purpose of providing a report for his sentencing hearing. She described his psychiatric condition as "cocaine abuse/dependence", which was explained in the following opinion: "Mr Nair is a 42 year old single neurosurgeon. He has a 10 year history of intermittent cocaine use that was predominantly used in an abuse pattern however at times he verged on becoming dependent on cocaine. He was regarded as having an abuse pattern because he tended to use high doses for a few hours to days followed by much longer periods of abstinence. However there were also periods where he found it increasingly difficult to resist using cocaine despite the considerable risks associated with its use and this is when he showed signs of becoming dependent. Mr Nair developed an intense craving to use the drug in sexual situations as it enhanced his desire and led to marked disinhibition. He had a dual addiction in that he craved the cocaine and the sex. He was more likely to seek both out when he felt bored or lonely and less likely when he was in a relationship. In these situations his desire for the drug and the escorts over rode any concerns he may have had about the wrongness of his behaviour. In November 2008 his use of both cocaine and escorts increased. He was no longer accountable to his girlfriend as his long term relationship had ended. The more cocaine he used the more he desired the drug." 20It will be necessary to return to the use of the terms "dependence" and "addiction". It is sufficient to note that no psychiatrist diagnosed him at any relevant time as suffering from a mental illness, which might reduce his moral culpability. Rather, as the evidence revealed, he indulged over a period of some seven years prior to the offence in count 1 in a course of conduct which involved the consumption and, on occasion, the supply of cocaine. He did not give evidence that he did not know about the risks involved in the use of the drug; whether he did nor not, as a medical practitioner, such information was readily available to him. There were risks to the health and life of others (notably his patients), but also to his own health, professional reputation and career and indeed his continuation as a registered medical practitioner. The evidence given through the psychiatric reports demonstrates an understanding of these factors. The inevitable conclusion is that he continued in a course of illegal drug use, regardless of the possible consequences, in flagrant disregard of the law. He was not entitled to any leniency in respect of count 1 on the basis that his offending had not previously been the subject of criminal prosecution. Nor was his continued drug use to be excused because senior medical officers knew about it. 21As noted by the sentencing judge, the applicant had a poor traffic record. That did not bear any immediate relevance to the drug supply (or manslaughter) offences, but the fact that he was apprehended driving whilst disqualified and driving an unregistered vehicle on a number of occasions confirms his willingness to disregard the law when it impinged on his personal preferences. According to Dr Wilcox: "On questioning Mr Nair did not believe that he deliberately flaunted authority. He said he did have a moral code in that there were things he would not do, such as he would not steal and would not assault anyone. He said he had been kind and generous to his patients. He recognised that his moral boundary had failed in two areas namely his continued use of cocaine and his use of escorts and that these moral boundaries were poorly defined and had been totally focused on pleasure seeking." 22Because it was a first offence, a lengthy term of imprisonment was inappropriate. In this case, I agree with Blanch J that an appropriate term of imprisonment would be six months. However, in my view that sentence should have been imposed by the primary judge and there should have been a degree of accumulation in respect of the other unrelated counts.

Ground 3: rejection of psychiatric case 23The second substantial challenge to the sentences imposed was based on the assertion that the sentencing judge rejected "the psychiatric case concerning the applicant's cocaine addiction and its connection to the offending and assessment of culpability": ground 3. For this purpose, the applicant relied principally upon the report of Dr Wilcox which was tendered as part of his case, although he asserted that the earlier reports of Dr Westmore and Dr Jurd supported, or were at least not inconsistent with, Dr Wilcox' opinions. Where the prosecution did not seek to challenge such expert evidence, it was submitted that the sentencing judge should have taken it into account and given it appropriate weight, referring to O'Neill-Shaw v R [2010] NSWCCA 42 at [26]. 24It is clear that the sentencing judge gave consideration to all three psychiatric reports. However, he noted that the history Dr Wilcox had obtained from the applicant was not in all respects consistent with the history given to Dr Westmore: at [54]-[57]. The judge noted the diagnosis of "cocaine abuse/dependence", but considered it an inadequate explanation for the history set out in the report. He concluded that even Dr Wilcox did not suggest an addiction, stating that the closest she came to that diagnosis was that "at times he verged on becoming dependent on cocaine": at [63]. In the end the judge said he was left with "no cogent psychiatric explanation for his action" and concluded that he was "driven by self-indulgence". 25Although the judge did not accept the "bored and lonely" explanation, a phrase used by Dr Wilcox as part of the history provided by the applicant, it was not the language of addiction. Further, Dr Wilcox noted that "for three months he abstained from the use of cocaine": Report, p 5.3. He sought help from a psychologist but she noted that "trying to get to the psychologist in time added to his stress". The opinion set out at [19] above, in the second paragraph of the extract, is curious. Despite the passive voice, it appears to be an expression of an opinion held by Dr Wilcox. What precisely was meant by "an abuse pattern" was unclear. The passage may be more a summary of his history than a diagnosis or opinion. 26In the third paragraph of the quotation at [19] above, the psychiatrist used the language of "addiction", but in a sense which suggested that it was more a rhetorical flourish than a professional opinion. There was no indication anywhere else that he was addicted to sex in a pathological sense. In another passage, in describing his response to the offences in February and November 2009, she stated that he was likely to have panicked and, "[i]f his level of intoxication was extreme he may have even been briefly disorientated and confused as a result of a cocaine induced delirium": p 8.2. One may search the report and the other material before the Court in vain for any evidence to support such speculation. A sentencing court would be justified in ignoring such an opinion. 27The next passage in the report reads as follows: "I believe that the criminal proceedings have had a profound effect on him. Until he was arrested and charged with murder he managed to minimise the consequences of his actions. His failure to deal with the incident of February 2009 meant that he continued to work without taking responsibility or being accountable for his actions. He was in denial with respect to his addiction because he was able to maintain the façade of the successful surgeon and the penalties that were imposed up until this time had little impact on his reputation or lifestyle." 28At this stage in the report, the term "addiction" appears to have been adopted as if the fact were earlier established, which it had not been. Otherwise the opinion might well be accepted, but it provides nothing to mitigate the objective culpability of the offending. Read as a whole, Dr Wilcox' report provided a history which was incompatible with any entitlement to leniency and, as the trial judge rightly concluded, provided no acceptable expert opinion demonstrating any motivation other than self indulgence. Ground 3 should be rejected.

Count 3 - manifest excess 29For the reasons given by Blanch J, I would not interfere with the sentence imposed on count 3. The offence occurred after the applicant's conduct had resulted in two tragic deaths, one of which, he accepts, constituted manslaughter. 30About seven weeks after being released on bail following the second death, and whilst subject to conditions that he not consume illicit drugs or engage the services of an escort or prostitute, he was apprehended indulging in consumption of cocaine with two "escorts" to whom he supplied the cocaine at his own premises. This was a flagrant disregard of the conditions attaching to his liberty, which deserved severe punishment. The sentencing judge imposed a sentence calculated, before reduction for a plea of guilty, at one-third of the maximum penalty for a single offence, in circumstances where a separate offence was taken into account on a Form 1. It might be described as conduct which demonstrated a combination of supreme arrogance and lack of insight. The sentencing judge may have taken a more lenient view, although he referred to "self indulgence", as noted above. Were it not for the need to adjust the starting date of the sentence to allow for the resentencing on count 1, I would have refused leave to appeal against this sentence.

Resentencing 31As noted by Blanch J, this Court has remarked on more than one occasion that it is inappropriate to impose a sentence expressed in terms of days and, usually, any period less than a month. The reason is that it gives a false and misleading impression of the precision in the calculation of sentences. Neither the starting point nor the discount permit such a level of precision. As the Court must interfere, it is appropriate to remove the offending elements from each sentence. 32I agree that leave should be granted in respect of each of the sentences. I would resentence the applicant as follows: (1) In respect of count 1, quash the sentence imposed in the District Court and sentence the applicant to a fixed term of imprisonment of six months, to date from 9 January 2010. (2) With respect to count 3, quash the sentence imposed by the District Court and impose a non-parole period of two years and nine months, to date from 9 May 2010 with a balance of term of 11 months. (3) In respect of count 2, direct that the non-parole period of two years commence on 1 December 2012, with a balance of term of two years six months to commence on 30 November 2014, but otherwise dismiss the appeal against sentence. The applicant will be eligible for release on parole on 30 November 2014. 33SIMPSON J: I have read in draft the judgments of both Blanch J and Basten JA. It is unnecessary to restate the facts in any detail. 34The applicant pleaded guilty to three counts: (i) supply prohibited drug (cocaine); (ii) manslaughter; (iii) supply prohibited drug (cocaine). 35Pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") he asked that a further two counts of supply of a prohibited drug (cocaine) identified on a Form 1 be taken into account. 36The sentences imposed were as follows: Count 1 (the first count of supply prohibited drug): imprisonment for a fixed term of 2 years and 3 months, commencing on 9 January 2010; Count 2 (manslaughter): imprisonment for 4 years and 6 months, with a non-parole period of 2 years, commencing on 1 May 2013; Count 3 (the second count of supply prohibited drug, taking into account the Form 1 offences): imprisonment for 3 years and 9 months, with a non-parole period of 2 years, 9 months and 23 days, commencing on 9 October 2010. The aggregate sentence is 7 years and 9 months, with a non-parole period of 5 years and 3 months and 22 days. 37The partial accumulation of the sentence imposed in respect of Count 3 (the second to commence) has the effect that the applicant is to serve a period of 9 months imprisonment referable solely to the first count. 38The offences were committed on three entirely separate occasions, over a period of about one year. The first offence (of supply prohibited drug) was committed on 15 February 2009; the second offence in time (manslaughter) was committed at some time between 19 and 21 November 2009; the third offence (of supply prohibited drug) was committed on 9 January 2010. 39There was a common pattern to the circumstances of all of the offences. The common pattern was this: the applicant was a practising neurosurgeon. On the occasion of each offence he arranged for two "escorts" (prostitutes) to attend his home. His arrangement with the agency who supplied the escorts was that it would also supply cocaine. He then used the drug and supplied it to the escorts. 40On the first occasion (15 February 2009) one of the escorts died following her consumption of the cocaine provided to her by the applicant. In respect of this occasion the applicant stood for sentence only in relation to the supply of cocaine. He was not to be sentenced in relation to the death of this woman. Her death is relevant only to the applicant's knowledge, on the occasions of the subsequent offences, of the risks associated with the supply of cocaine - something of which the applicant, as a neurosurgeon, ought, in any case, to have been aware. 41The circumstances giving rise to the count of manslaughter were similar. On 19 November 2009, the applicant arranged for two escorts to attend his premises. He consumed cocaine and supplied the escorts with the drug. One of the escorts (Ms Domingues-Zaupa, aged 22) showed signs of cocaine overdose. The applicant, who had himself consumed cocaine, gave her a Xanax tablet and water. Ms Domingues-Zaupa's condition did not improve and she appeared to be choking. She suffered seizures and went into cardiac arrest. The applicant did not call an ambulance. He made some attempts at administering first aid and CPR but these were unsuccessful. The administration of Xanax was medically inappropriate. 42The sentencing judge held that the applicant's liability for manslaughter (by gross criminal negligence) arose by reason of his supply of a quantity of cocaine that substantially jeopardised Ms Domingues-Zaupa's physical safety and endangered her life, and in having, by his own consumption of cocaine, diminished his capacity to render assistance. 43In respect of this offence the applicant was arrested on 25 November 2009 and released on bail, on conditions that he not consume illicit drugs and not engage the services of escorts or prostitutes. 44The third offence in time, the second of supply prohibited drug, was committed on 9 January 2010 while the applicant was at liberty on bail. The circumstances were again similar. The applicant was present in his apartment with two escorts with whom he had consumed cocaine. He was in possession of 3.91 grams of cocaine (a traffickable quantity). It seems that his possession of that drug constituted the offence charged. The supply of the drug to the two escorts was the subject of the two counts on the Form 1. 45It is unnecessary to recount the applicant's personal circumstances, which have been set out in the judgment of Blanch J.

Ground 1: denial of procedural fairness (Count 1) 46I agree with Blanch J that the appeal on ground 1 ought to be upheld. I do not share the misgivings of Basten JA. 47I accept, as Basten JA points out, that the applicant's experienced senior counsel had the opportunity to, and did, make submissions urging a non-custodial penalty in respect of Count 1. Those submissions were made on 30 June 2011. The transcript of the proceedings makes it plain that senior counsel had completed his submissions with respect to that count, and had moved to Count 3 (the second offence) before his Honour gave the clear indication (set out in full in the other judgments), that, subject to what the Crown might subsequently say, he proposed to impose a non-custodial penalty for the first offence. Counsel for the Crown did not explicitly (or, with any clarity, implicitly) oppose that course. In those circumstances senior counsel for the applicant made no reply. He was entitled to take the view that none was necessary. 48That, alone, is, in my opinion, sufficient to raise concerns about the unforewarned change of attitude by his Honour when he came to sentence, two months later, on 26 August 2011. His Honour then declared that each of three offences demanded a significant full-time custodial sentence. He did not differentiate the first from the second or third. Of more importance, in my opinion, is what followed that pronouncement: he said: "Nothing was said, nor could have been, to the contrary." 49That was undoubtedly correct in relation to the second count (manslaughter), and, to a lesser extent, to the third count (the second of supply). It was incorrect in two respects in relation to the first count. Submissions had been put to the contrary of his Honour's proposition, and they were not untenable submissions. It was therefore incorrect to say than nothing could have been put to the contrary. Indeed, they had initially been accepted by his Honour. The incorporation of the first count with the other two counts in this global remark, in my opinion, signifies that his Honour overlooked, and thus failed to take into account, the submissions that had been made. 50That is not precisely the denial of procedural fairness on which senior counsel for the applicant relied on appeal, but it highlights that there was such a denial. 51I therefore accept that ground 1 has been made out and the applicant must be re-sentenced on that count. 52That leaves a question as to what alternative sentence ought to be imposed. It is necessary to look at this offence in isolation from the subsequent offences. It is not possible to say with confidence what sentence would have been imposed had the applicant stood for sentence in respect of this offence at any time before November 2009. However, there is available an argument, as Blanch J points out, that, if the applicant had been dealt with for that offence alone, he may well have had the benefit of some form of non-custodial sentence, such as a community service order (see s 8 of the Sentencing Procedure Act), or an intensive correction order (see s 7 of the Sentencing Procedure Act). Relevant to that assessment is the high degree of likelihood that that offence alone would have resulted in significant extra-curial punishment by way of disciplinary proceedings within the medical profession. 53Both Blanch J and Basten JA propose a sentence of imprisonment of 6 months. The difference between their Honours is whether that sentence should be served wholly concurrently with the subsequent sentence, or made partially cumulative. 54A wholly concurrent sentence, as proposed by Blanch J, has the appearance of marking the Court's condemnation of the applicant's behaviour, while, in reality, imposing no effective punishment. That is an unfortunate and inevitable consequence of the water that has flowed under the bridge since the commission of that offence. 55Accordingly, although ordinarily that offence would have called for some discrete punishment, I agree with Blanch J that the sentence should now be served wholly concurrently with the sentence imposed in respect of the third count.

Ground 2: manifest excess (Count 3) 56Ground 2 concerns the sentence imposed in respect of the third count, the second of supply. The sentence imposed (when adjusted to delete the unnecessary, confusing, and cumbersome calculation in months and days) is a total of 3 years and 9 months, with a non-parole period of 2 years and (almost) 10 months (or 34 months) with a balance of term of 11 months. 57Like Blanch J, I would reject as irrelevant the argument that this offence could have been dealt with summarily in the Local Court. It was the second offence of its kind, it was committed while the applicant was on bail for a serious offence that involved the supply of drugs and a drug related death, and subject to a specific condition concerning the consumption of illicit drugs, and it was to be dealt with in conjunction with the far more serious offence of manslaughter. It is wholly unrealistic to suggest that it could properly have been dealt with in the Local Court. 58When the reduction allowed in recognition of the applicant's plea of guilty is taken into account, the starting point was a sentence of 5 years. The offence involved supply of a relatively small quantity drugs to a willing and informed recipient, who was present for what were essentially commercial purposes. 59A starting point of 5 years, when those circumstances are considered, is high. However, the circumstances that made this offence unsuitable to be dealt with in the Local Court are also relevant to the assessment of its objective gravity. It was a second offence of its kind, the first having been committed in circumstances in which the supply of drugs resulted in the death of the recipient. The applicant could have been in no doubt of the potential consequences of his conduct in supplying drugs. The offence was committed in the wake of a second episode in which the applicant had supplied the same drug to two escorts, which resulted in the death of one of them, ie a second drug related death. It was committed while he was on bail for that offence, and subject to an explicit condition concerning consumption of drugs. And the sentence had to take into account the two Form 1 offences. 60Sentencing for this offence called for a very large component of personal deterrence, as well as general deterrence. 61What has troubled me is the proportionality of this sentence, especially the non-parole period, to the sentence imposed in respect of the manslaughter charge. The respective head sentences are 4 years and 6 months (manslaughter) and 3 years and 9 months (supply). But the non-parole periods are 2 years (manslaughter) and 2 years and (almost) 10 months (supply). Against maximum sentences of 25 years and 15 years respectively, that appears to me to be anomalous. However, the anomaly was not raised on appeal, and the Crown has not appealed against the manslaughter sentence. In all of the circumstances, the Count 3 sentence was warranted. 62I agree that this ground has not been made out.

Ground 3: asserted rejection of the applicant's "psychiatric case" 63Ground 3 concerns the treatment of what is called the applicant's "psychiatric case". I agree, for the reasons given by Basten JA and Blanch J that this ground should be rejected. 64I agree with the observations of Basten JA at [31] of his judgment, concerning the calculation of sentences in months and days, and would prefer that this Court make orders that adjusted and re-calculated these sentences. However, in the result, I agree with the orders proposed by Blanch J. 65BLANCH J: The applicant seeks leave to appeal against sentences imposed in the Sydney District Court on 26 August 2011. He entered pleas of guilty to three offences as follows: (1) Supply prohibited drug (cocaine) on 15 February 2009 contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 which carries a maximum penalty of 15 years imprisonment. He was sentenced to a fixed term of 2 years and 3 months to date from 9 January 2010. (2) Manslaughter of Suellen Domingues-Zaupa between 19 and 21 November 2009 contrary to s 18(1)(b) Crimes Act 1900 which carries a maximum penalty of 25 years imprisonment. He was sentenced to a non-parole period of 2 years to date from 1 May 2013 and expire on 30 April 2015 with a balance of term of 2 years and 6 months. (3) Supply prohibited drug (cocaine) on 9 January 2010 contrary to s 25(1) Drug Misuse and Trafficking Act which has a maximum penalty of 15 years imprisonment. He asked that two other charges of supply cocaine be taken into account on a Form 1. He was sentenced to 2 years, 9 months and 23 days to date from 9 October 2010 and expire on 31 July 2013 with a balance of term of 11 months and 8 days. The total effective head sentence was 7 years, 9 months and 21 days. The non-parole period was 5 years, 3 months and 21 days.

FACTS 66The applicant was a neurosurgeon practising in western Sydney at the relevant time.

Offence 1 67On 14 February 2009 he engaged two female escorts to attend his premises. He offered them cocaine but they declined and left after an hour. Shortly after, two other escorts came to his premises knowing they would be "partying" with the applicant. Over approximately eight to ten hours he engaged in various sexual acts with the two women and provided them with large quantities of cocaine and he used cocaine himself. At about 11.00am on 15 February another escort, Victoria McIntyre, attended the premises and was offered a "line" of cocaine by the applicant. Shortly after, the other two escorts left the premises to buy sex toys and fill a prescription. When they returned to the outside of the premises, they spoke to the applicant over the intercom and he asked them to return a short time later. He called "000" and reported that Victoria McIntyre had suffered a fit and an ambulance was called. He administered first aid until the ambulance came at which time he told the ambulance officer "we were on the bed together and she had a seizure...". Victoria McIntyre died in hospital twelve hours later.

Offence 2 68On 19 November 2009 the applicant arranged for two escorts to come to his premises and one of these escorts was the victim Suellen Domingues-Zaupa. The victim arrived at 4.30pm after the other escort and the three persons engaged in sexual acts and consumed a large quantity of cocaine provided by the applicant. They were all affected by the cocaine and it appears the victim began to have difficulty breathing and her body was shaking with convulsions. The applicant placed a Xanax tablet into her mouth with some water but she became increasingly unwell and went into cardiac arrest. He did not call an ambulance but he made attempts to administer first aid. The applicant was seen to leave the premises at about 5.45am the next morning in company with a number of escorts and was seen to be quite affected by the drugs. When he did not come to work, his colleagues alerted the police who went to his premises and found the body of the deceased in his bedroom. The cause of death was later determined to be cocaine toxicity. Medical expert evidence was that the treatment administered by the applicant was inadequate, that the administration of Xanax was not appropriate and he should have called an ambulance. The agreed statement of facts was that the applicant's legal liability for manslaughter was on the basis that he was grossly negligent. On 25 November 2009 he was charged with supplying cocaine and granted bail. On 4 February 2010 he was charged with murder and on 22 December 2010 the prosecution accepted his plea of guilty to manslaughter.

Offence 3 69On 9 January 2010 while he was still on bail for the offence of supplying cocaine, police attended his premises where they discovered him with two escorts to whom he had supplied cocaine (this represents the two offences on the Form 1). Police located 3.91g of cocaine at the premises, being a traffickable quantity. The sentencing judge found the applicant engaged the various escorts through an agency and that he paid for a "party package" which included the supply of cocaine and the escorts.

(a) There was a denial of procedural fairness in the imposition of a custodial sentence on count 1.

(b) The sentence imposed on count 1 is manifestly excessive. 70During the course of the proceedings on sentence, there was a discussion between the sentencing judge and senior counsel for the applicant about the appropriate sentence in respect of Count 1 and a discussion of the sentence imposed in R v Wilhelm [2010] NSWSC 378, where the offender supplied drugs to Diane Brimble who died as a result and where the sentencing judge found the offence to be one of social supply and chose in that case to justify a conviction but with no further penalty. Having discussed that case with counsel, his Honour then said in relation to the first count on the indictment: "I propose to impose a non-custodial sentence for what it's worth in relation to the supply for reasons you outlined. But as I say and subject, of course, to what the Crown has to say to me but it does seem to me that that's the proper approach to this, overwhelmingly my concerns really are the manslaughter charge that should be properly characterised." 71Having so informed counsel, that issue was not further discussed during the course of the hearing which took place on 30 June 2011. When the judge came to impose sentence on 26 August 2011, he said: "Each of the offences is serious and each demand a significant full time custodial sentence. Nothing was said, nor could have been, to the contrary." 72It is accepted by the Crown that this did deny procedural fairness to the applicant and the structure of the sentence resulted in the sentence for this offence adding 9 months to the overall period of imprisonment and, in particular, adding 9 months to the non-parole period. 73The Crown, however, argues that this does not mean the sentence should be disturbed on appeal and submits that the offence in Count 1 of supply was not an isolated incident and that the applicant had been consuming cocaine from at least 2004 when he self-reported that fact to the Medical Board. 74The first charge must be considered bearing in mind the offence was in February 2009 whereas the subsequent offences were in November 2009 and January 2010. It is also true that the supply in this case was a social supply and was not done for profit. On the findings of the sentencing judge, the cocaine was supplied to him by the escort agency for the purpose of mutual use by the applicant and the escorts. 75Had this matter been dealt with in isolation, it clearly would have given rise to an argument as to whether or not a full-time prison sentence was necessary. Obviously the trial judge had this in mind at the time of hearing submissions on sentence. If the matter had come before a court for sentence some time between February 2009 when the offence was committed and before the subsequent offences in November 2009 and January 2010, the applicant would have come before the court as a person of good character who had an excellent reputation as a neurosurgeon and who had a problem with drugs. He would have faced the difficulty that as a doctor he should have been aware of both the illegality and the danger in the use of cocaine, which was demonstrated in this case by the fact one of the escorts became so affected she had to lie down due to the effects of the cocaine. Weighing those competing factors, it is probable that a full time custodial sentence would not have been passed and some form of community service order or intensive corrections order would have been imposed. 76It is properly accepted by the Crown the applicant was denied procedural fairness and because of that it is necessary for this Court to re-sentence. The sentence imposed should be set aside and another sentence imposed. In my view, because at this stage it is not possible to impose a community service order or intensive corrections order, there should be a prison sentence imposed in order to reflect the criminality involved in the offence but it should be a fixed term of 6 months to be concurrent with the other sentences.

Ground 2: The sentence imposed on Count 3 is manifestly excessive 77It is recognised by the applicant that this count is more serious since it was committed on conditional bail and that there are two matters on the Form 1. That concession is entirely justifiable, bearing in mind he was at that stage on bail for the previous supply of cocaine and the bail contained conditions he was not to consume or supply cocaine or engage prostitutes. It is argued that the offence involved 3.91g of cocaine which was deemed to be for the purpose of supply as it was more than the traffickable quantity of 3g of cocaine and it is pointed out that as with the first offence it was intended for social use and the applicant intended using some of it himself. The argument is also advanced it is a matter that could have been dealt with in a summary manner where a magistrate's jurisdiction would have been limited to 2 years. 78This Court has stressed on a number of occasions that where Form 1 offences are taken into account, it can be expected that it will result in a longer sentence and that in a case such as this, the Form 1 offences indicate it was not an isolated instance - see for example Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 and Dionys v R [2011] NSWCCA 272. In this case the fact that the offence was not isolated is not only apparent from the Form 1 offences, but also from the offences committed in February 2009 and November 2009. 79Because of those considerations, in my view it cannot be said that this sentence was excessive and for those same reasons, it was an offence which ought not, in fact, have been dealt with in a summary manner. Because of that, the fact the case could have been dealt with in the Local Court is merely a theoretical possibility - see Zreika v R [2012] NSWCCA 44 - and does not justify a reduction in the penalty.

Ground 3: His Honour erred in rejecting the psychiatric case concerning the applicant's cocaine addiction and its connection to the offending and assessment of culpability. 80In the report of Dr Wilcox tendered by the defence it was said the applicant "... developed an intense craving to use the drug in sexual situations as it enhanced his desire and led to a marked disinhibition. He had both a dual addiction in that he craved the cocaine and the sex." She noted that he sought cocaine and sex when he felt bored and lonely and said he "... would have been unable to react to a medical emergency in a calm and appropriate manner. He is more likely to have panicked and to have acted in a disorganised manner. If his level of intoxication was extreme he may have even been briefly disorientated and confused as a result of a cocaine induced delirium." 81A report by Dr Westmore was tendered by the Crown and Dr Westmore described the applicant as having a "Cocaine Abuse/Dependence" which was moderate to severe and also identified social isolation as a stressor. 82The sentencing judge having quoted from Dr Wilcox's report said: "61. The doctor does not offer a diagnosis beyond: "Cocaine Abuse/Dependence". 62. To my mind that is inadequate and hardly explains not only why this man did what he did but why he persisted in identical behaviour since released from the Northside Clinic that he did it on bail. 63. This was not mere addiction to cocaine. Even Dr Wilcox does not suggest an addiction. The closest she gets is:- ... at times he verged on becoming dependent on cocaine. 64. Nor am I persuaded by the "bored or lonely" thesis. 65. In the end I am left with no cogent psychiatric explanation for his action. I conclude that he was driven by self-indulgence." 83These statements by his Honour have led to the submission that the judge rejected wholly the applicant's psychiatric case. On the other hand the judge knew and stated that the report of Dr Wilcox offered a diagnosis of "Cocaine Abuse/Dependence" and that characterisation of Dr Wilcox's report appears to be appropriate. Dr Wilcox's report noted that he had a "10 year history of intermittent cocaine use that was predominantly used in an abuse pattern however at times he verged on becoming dependent on cocaine." She indicated that he went through cycles of self-medication and that probably at the time of the commission of the offences in February 2009 and November 2009 he was in such a cycle. She said: "On both occasions he was markedly intoxicated due to having consumed large amounts of cocaine throughout the night and on both occasions he had virtually no sleep." 84I do not believe it can be said the judge rejected the applicant's psychiatric case. He did not quote all the relevant sections of Dr Wilcox's report but he was clearly aware of the content of the report and of the diagnosis of "Cocaine Abuse/Dependence". 85The further question is raised in this case as to what the real impact of this evidence on the sentence would be. In R v Henry [1999] 46 NSWLR 346 at [197]-[198], Spigelman CJ said: "In my opinion drug addicts who commit crime should not be added to the list of victims. Their degree of moral culpability will vary, just as it varies for individuals who are not affected by addiction. There are a number of aspects of the relationship between drug addiction and crime which indicate that moral choices are made. First is the original decision to experiment with drugs which, in the usual case, is a completely free choice. The addictive quality of drugs, together with the anti-social behaviour which so commonly results from addiction, is so widely known that persons who choose a course of addiction must be treated as choosing its consequences." 86At [257] Wood CJ at CL said: "The comparison is also imperfect in so far as it overlooks the original element of choice every person has, initially whether or not to experiment with drugs, and thereafter to continue with their use. Even if some persons have a genetic predisposition or vulnerability to addiction, they are not, in my view, entitled to claim any favours in that regard. The addictive quality of drugs and the potential of a slide into a degraded or criminal lifestyle are so well known as to invite a free choice. Those who choose to use drugs must, in my view, accept the consequences." 87Those statements of principle have been applied consistently in this Court: see for example, R v SY [2003] NSWCCA 291 and Bichar v R [2006] NSWCCA 1. 88The substance of the complaint made by the applicant is that "his culpability for the offence should be reduced as a result" of the medical evidence. This is apparently put on the basis it is analogous to reducing the culpability of a mentally ill person. In so far as dependence or even addiction to drugs is concerned, unless a supervening mental illness is demonstrated, I would reject this proposition for the reasons given in the cases cited. It is also argued his judgment was clouded as a result of the ingestion of drugs and in consequence his culpability is less but I do not believe that warrants any interference in this sentence. 89This Court must be satisfied pursuant to s 6(3) of the Criminal Appeal Act 1912 that "some other sentence whether more or less severe is warranted in law and should have been passed." 90The circumstances for the offence of manslaughter vary enormously and in the result sentences vary as well. Compared to a maximum penalty of 25 years, a sentence of 4½ years can be seen as one towards the lower end of the scale. This was a case where although the applicant had extremely compelling subjective circumstances, he had committed repeat offences involving the supply of cocaine and where, as a medical practitioner, he should have been aware of the dangers of supplying large doses of cocaine to the escorts he had hired. It is a situation where a sentence of some significance must be passed in order to reflect the principles of general deterrence and in my view, in this case no lesser sentence would be warranted. 91For the foregoing reasons, I propose that the sentences on Counts 2 and 3 be confirmed but that they date from 9 January 2010, the date on which the sentence on the first count commences. That means in rounded out terms a sentence of approximately 7½ years with a non-parole period of 4½ years. I propose not interfering with the precise terms of the sentence imposed by the sentencing judge but I express my concurrence with many earlier statements of the Court of Criminal Appeal that it is undesirable for judges to express sentences in terms of days and sentences in these sorts of cases should be expressed in terms of years and months. 92A further problem emerges in this case because the sentencing judge expressed a view that he did not find special circumstances except to preserve the ratio between the effective head sentence and the effective non-parole period. However, the effective head sentence imposed was one of 7 years, 9 months and 21 days or 93 months and 21 days and the non-parole period was 5 years, 3 months and 21 days or 63 months and 21 days. This had the effect of making the non-parole period approximately 68% of the head sentence as opposed to the statutory ratio of 75%. In other words, in spite of his stated intention, the judge did vary the statutory ratio. The structure of the sentence I would propose involves a head sentence of 7½ years with a non-parole period of 4½ years. In rounded figures that is equivalent to a ratio of approximately 60%. There are reasons in this case to vary the statutory ratio to justify that approach, they being the fact this is his first term of imprisonment and he has had a long-standing drug problem which will require his ongoing supervision when released from custody. 93I propose the following orders: (1) Grant leave to appeal. (2) Allow the appeal in respect of Count 1 and quash the sentence imposed in the District Court and sentence the applicant to a fixed term of imprisonment of 6 months to date from 9 January 2010. (3) I would dismiss the appeal against the sentence imposed in respect of the third count of supply prohibited drug and confirm the sentence but the sentence of 2 years, 9 months and 23 days should date from 9 January 2010 with a balance of term of 11 months and 8 days. (4) I would dismiss the appeal against the sentence on the second count of manslaughter and confirm the sentence of 2 years with a balance of term of 2 years and 6 months but that sentence should commence on 1 August 2012. He would be eligible for release to parole on 31 July 2014.

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