Using Intoxication in Favour of the Respondent
28 The respondent had been a long time user of amphetamines. He said that the effect of the drugs on him when he injected them, which was his usual method of ingestion, made him lose control of himself and be more aggressive than usual. This evidence should be viewed in conjunction with the respondent's physique. He is tall and heavily built. The manner in which he carried out these attacks would indicate that he had considerable physical strength.
29 In dealing with the respondent's state of intoxication at the time of the attacks, and especially in relation to the manslaughter charge, his Honour stated:
"I note that the prisoner was substantially affected by amphetamines, which I take into account, notwithstanding the self-infliction of those drugs as the drug of choice of the prisoner."
30 Then, when dealing with the overall question of sentence his Honour again stated:
"I have taken into account on sentencing the fact that his actions were as a result of him taking a considerable quantity of amphetamines with its consequent mind-altering and psychology altering effect."
31 It is submitted on behalf of the Crown that it is clear that his Honour used these factors favourably to the respondent, rather than treating it as an aggravating factor in the case, or at the very least, a neutral factor.
32 Counsel for the respondent submitted that his Honour had in fact treated this as a neutral factor in the sense that he weighted it both subjectively and objectively. It was submitted that this was clear from his further statement during the course of his sentencing remarks, that:
"The [respondent's] selfish intention was to rob the innocent to satisfy his own addiction, notwithstanding that he had already that evening, deceived his father by taking money from him. A vast amount was spent on amphetamine consumption on these two days."
33 I consider that the overall import of his Honour's remarks in relation to this matter was to view the respondent's addiction as a mitigating factor.
34 It is apparent from lengthy discussions of this issue in the authorities that the question of serious drug addiction can be relevant in a number of ways. In Coleman (1990) 47 A Crim R 306 Hunt J said at 327:
"Only one matter of general principle was debated, and that was the extent to which the appellant was entitled to have his intoxication at the time of this offence taken into account in mitigation. The degree of deliberation shown by an offender is usually a matter to be taken into account; such intoxication would therefore be relevant in determining the degree of deliberation involved in the offender's breach of the law. In some circumstances, it may aggravate the crime because of the recklessness with which the offender became intoxicated; in other circumstances, it may mitigate the crime because the offender has by reason of that intoxication acted out of character. (I have not intended by those examples to limit the extent to which intoxication may be taken into account: see, generally, Sewell and Walsh (1981) 29 SASR 12 at 14-15 … Where the reason for the offender's intoxication is a self-administered drug rather than alcohol, the cases suggest that that fact may well be more likely to aggravate than to mitigate."
35 That passage was considered by the Court of Criminal Appeal in Fletcher-Jones (1994) 75 A Crim R 381 at 387. McInerney J, (Hunt CJ at CL and Bruce J agreeing), commented that the accused in that case had been an habitual drinker but had ceased to drink for a period of about 6 months immediately prior to the offence. In those circumstances the Court considered that the matter should be treated neutrally. His Honour went on however and stated:
"It has been pointed out by this Court on many occasions that whilst being affected by alcohol may explain why an offence occurred, it is not a licence to commit crimes …"
36 In R v Valentini (1989) 46 A Crim R 23 it was said that drug addiction was not to be considered as a factor for the reduction of an appropriate sentence, although it would usually serve to provide an explanation for the commission of the offences. See also R v Ellis (1993) 68 A Crim R 449.
37 The question of drug addiction in relation to sentencing was also considered in the guideline judgment of R v Henry. For the purposes of the guideline judgment, the offences under consideration were s 97 offences: robbery, being armed with an offensive weapon: which carries a maximum penalty of penal servitude for 20 years.
38 Spigelman CJ in dealing with this question noted at 382 that there was a long line of authority in this State to the effect that addiction, is not, of itself a mitigating circumstance. His Honour said at 385:
"…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 … [t]here is no warrant … to assess a crime induced by a need for funds to feed a drug addiction, as being lower in the scale of moral culpability than other perceived requirements for money."
39 And further at 386:
"The sentencing practices of the courts are part of the anti-drug message, which the community as a whole has indicated that it wishes to give to actual and potential users of illegal drugs. Accepting drug addiction as a mitigating factor for the commission of crimes of violence would significantly attenuate that message. The concept that committing crimes in order to obtain moneys to buy an illegal substance is in some way less deserving of punishment than the commission of the same crime for the obtaining of moneys for some other, but legal, purpose, is perverse."
40 Wood CJ at CL set out his view of the relevant principles at 397-398:
"(a) the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation;
(b) however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as:
(i) the impulsivity of the offence and the extent of any planning for it: cf R v Bouchard (1996) 84 A Crim R 499 at 501-502 and R v Nolan (Victorian Supreme Court, Court of Appeal, 2 December 1998, unreported);
(ii) the existence or non-existence of any alternative reason that may have operated in aggravation of the offence, for example, that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism;
(iii) the state of mind or capacity of the offender to exercise judgment, for example, if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act;
(c) it may also be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it, might:
(i) impact upon the prospects of recidivism/rehabilitation, in which respect it may on occasions prove to be a two-edged sword: eg, R v Lewis (Court of Criminal Appeal, 1 July 1992, unreported);
(ii) suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example, where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness or surgery (cf R v Hodge (Court of Criminal Appeal, 2 November 1993, unreported) and R v Talbot); or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment of choice was incomplete;
(iii) justify special consideration in the case of offenders judged to be at the 'cross roads': R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394."
41 His Honour concluded:
"To go further, and to accept the fact of drug addiction as a mitigating factor generally, would not be justified in principle. Moreover, it would involve an exercise in irresponsibility on the part of the Court, if it were understood as a message that committing the crime of armed robbery to feed a drug habit is less deserving of censure than would otherwise be the case."