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Supreme Court 31 October 2006

R v Sood

[2006] NSWSC 1141

Drugs
REMARKS ON SENTENCE JURY VERDICT FACTS RELEVANT TO SENTENCE AGGRAVATING FACTORS FOCUS UPON HEALTH CONSEQUENCES NATURE OF UNLAWFULNESS

Citation: R v Sood [2006] NSWSC 1141
Court: Supreme Court of New South Wales
Date: 31 October 2006
Judge(s): Simpson J

Background

The offender was a registered medical practitioner who operated a clinic specialising in medical terminations of pregnancy. In May 2002, she agreed to terminate a pregnancy that had progressed to 22 to 24 weeks' gestation. She accepted payment and arranged for the patient to attend the clinic on 20 May 2002.

At that appointment, the offender administered a prostaglandin tablet (Cytotec, a drug used to induce labour) by vaginal insertion and supplied further tablets for the patient to take orally. The drug acted faster than expected, inducing labour that evening. The patient delivered a baby boy into a toilet bowl in the early hours of the following morning. The child did not survive.

A jury convicted the offender on two counts under s 83 of the Crimes Act 1900 (NSW): unlawfully administering a drug to a woman with intent to procure a miscarriage, and unlawfully causing a drug to be taken with the same intent. The jury acquitted her on a concurrent count of manslaughter. The sentencing proceedings followed those verdicts.

  • What weight should be given to the aggravating and mitigating factors when sentencing for offences under s 83 of the Crimes Act 1900?
  • How should the court assess the objective seriousness of these particular offences relative to other offences against s 83?
  • Whether subsequent events (including the death of the baby) were relevant to sentencing for the s 83 offences, given the acquittal on manslaughter?
  • What sentence, if any involving imprisonment, was appropriate having regard to the offender's subjective circumstances?

Decision

Simpson J approached sentencing by identifying the aggravating features of the offences. The court found that the offender had failed to conduct a physical examination, had not discussed alternatives to termination, and had made no adequate inquiry into the patient's circumstances. Critically, the court found the offender held no genuine belief in the medical necessity of the termination. The court also found that there had been falsification of records following the events, which it treated as an aggravating factor going to character.

The court was careful to confine the sentencing exercise to the two s 83 offences. Because the two offences formed part of a single indivisible enterprise, the court confirmed they should be treated as one for the purposes of any custodial sentence. Simpson J held that events following the administration of the drug, including the delivery and death of the baby, were not directly relevant to punishment for the termination offences themselves, given the jury's acquittal on manslaughter.

Notwithstanding the seriousness of the conduct, the court rated these offences as relatively low on the scale of objective gravity for s 83 offences. The method used was a recognised medical drug rather than a primitive or dangerous instrument, and the offender held medical qualifications. The court weighed significant subjective circumstances in the offender's favour, concluding that a non-custodial sentence was available under s 5 of the Crimes (Sentencing Procedure) Act 1999. A community service order and a conditional discharge were both rejected as inappropriate.

The court settled on a two-year good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act. Simpson J explained that the bond was not imposed out of concern that the offender would reoffend, but to express the community's disapproval of the conduct. The sentence reflected the principles of deterrence and denunciation while acknowledging the offender's subjective circumstances.

Orders Made

  • The offender was convicted.
  • The offender was ordered to enter into a good behaviour bond for two years from 31 October 2006 under s 9 of the Crimes (Sentencing Procedure) Act 1999, subject to the following conditions:
  • Appear before the Court if called upon at any time
  • Be of good behaviour
  • Advise the Registrar of any change of residential address
  • Report to the Officer in Charge, NSW Probation and Parole Service at Parramatta within seven days
  • Accept supervision and obey all reasonable directions of the NSW Probation and Parole Service

Key Takeaways

  • Under s 83 of the Crimes Act 1900, the offences of unlawfully administering and unlawfully causing to be taken a drug with intent to procure a miscarriage are complete at the moment of administration or consumption. Subsequent events, including the fate of the foetus or any resulting child, are not relevant to sentencing for those specific counts.

  • A jury acquittal on a related charge (here, manslaughter) constrains the sentencing court: evidence going only to that charge must be disregarded, and no finding inconsistent with the acquittal may be made in the sentencing remarks.

  • Where two offences under s 83 arise from a single indivisible enterprise, any custodial terms should be ordered to run concurrently.

  • Falsification of records or evidence following an offence is a relevant factor that a sentencing court may consider when assessing an offender's character.

  • Objective gravity under s 83 is assessed on a spectrum. The Supreme Court placed these offences at the lower end of that range, distinguishing them from earlier cases involving unqualified practitioners, prior convictions, or dangerous and primitive methods.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 83
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 7, 8, 9, 10, 21A, 66
- Health Care Complaints Act 1993 (NSW)

Cases
- R v Wald (1971) 3 NSWDCR 25
- Skinner v Beaumont [1974] 2 NSWLR 106
- R v Violet May Morgan (NSW Court of Criminal Appeal, unreported, 12 December 1972)