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.