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Court of Criminal Appeal 18 April 2013

Nair v R

[2013] NSWCCA 79

HomicideDrugs
CRIMINAL LAW SENTENCING PROCEDURAL FAIRNESS CUSTODIAL SENTENCE SENTENCING WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Nair v R [2013] NSWCCA 79
Court: NSW Court of Criminal Appeal
Date: 18 April 2013
Judges: Basten JA at [1]; Simpson J at [33]; Blanch J at [65]

Background

The appellant was a medical practitioner and specialist neurosurgeon sentenced in the District Court in August 2011 on two counts of supplying cocaine and one count of manslaughter. The manslaughter arose from the death of a young woman who died after ingesting cocaine the appellant had supplied to her in the context of a commercial arrangement involving both drugs and sexual services.

The appellant was sentenced to a total effective term of approximately seven years and nine months imprisonment, with a non-parole period of approximately five years and three months. He sought leave to appeal out of time, raising several grounds including procedural unfairness, manifest excess in the drug supply sentences, and alleged error in the rejection of psychiatric evidence concerning his cocaine addiction.

  • Whether the sentencing judge denied procedural fairness to the appellant by indicating a non-custodial sentence on the first supply count, then imposing a custodial term without giving defence counsel a further opportunity to address that possibility.
  • Whether the sentence on the first count of cocaine supply was manifestly excessive.
  • Whether the sentencing judge erred in rejecting the psychiatric case that the appellant's cocaine addiction reduced his culpability.
  • Whether the sentence for manslaughter was excessive.

Decision

Procedural fairness (Count 1 supply): The majority of the Court found that procedural fairness had miscarried on the first supply count. During the sentencing hearing, the judge expressly stated he intended to impose a non-custodial sentence on that count. He then reserved his decision and excused counsel from attending delivery, after which he imposed a custodial term of two years and three months. The Court accepted that this sequence deprived defence counsel of a practical opportunity to make submissions directed at avoiding a custodial outcome. On that basis, the majority treated the sentence on Count 1 as not having been validly imposed and proceeded to re-sentence.

Re-sentencing on Count 1: The Court re-sentenced the appellant on the first supply count, taking into account the nature of the offending (supply to an adult in a mutual drug-use context, though not without seriousness given the ultimate fatal consequences), the existence of other offences on a Form 1 schedule, and the fact the offence was committed on conditional bail. The Court imposed a fixed term of six months imprisonment on that count.

Psychiatric evidence and culpability: The Court declined to interfere with the sentencing judge's rejection of the psychiatric case. No mental illness had been demonstrated, and the evidence did not establish a recognised addiction at the relevant time that would reduce the appellant's culpability. The appellant had previously self-reported cocaine use to the Medical Board as far back as 2004 but had continued to use the drug across a prolonged period.

Manslaughter and overall sentence: The Court dismissed the appeal against the manslaughter sentence and confirmed the remaining drug supply sentence. While the structure of the original sentences contained some technical imprecision (including the non-parole period inadvertently varying the statutory ratio), the Court adjusted the sentence structure to produce a clearer and properly proportionate result, with a total effective sentence of approximately seven and a half years and a non-parole period of four and a half years.

Orders Made

  • Leave to appeal granted.
  • Appeal on Count 1 (supply, 15 February 2009) allowed; original sentence quashed; re-sentenced to a fixed term of six months imprisonment, commencing 9 January 2010.
  • Appeal against Count 3 (second supply offence) dismissed; sentence of 2 years, 9 months and 23 days confirmed, dating from 9 January 2010 with a balance of term of 11 months and 8 days.
  • Appeal against the manslaughter sentence dismissed; sentence of 2 years confirmed, with a balance of term of 2 years and 6 months, commencing 1 August 2012, with eligibility for parole on 31 July 2014.

Key Takeaways

  • A sentencing judge who indicates a favourable sentencing intention during oral submissions, then departs from that indication without giving defence counsel a further opportunity to address the point, may deny procedural fairness, particularly where counsel is not present when judgment is delivered.
  • Where procedural unfairness in sentencing is established, the appellate court is not confined to reviewing whether the original sentence was excessive; it may re-exercise the sentencing discretion at large.
  • Supplying a prohibited drug is not confined to commercial dealing arrangements; the offence extends to supply for personal benefit of another kind, and the court found it was not necessarily less reprehensible to supply drugs for sexual purposes than for financial reward.
  • Rejection of a psychiatric case put in mitigation will not be disturbed on appeal where the evidence fails to demonstrate either a recognised mental illness or an established addiction causally connected to reduced culpability.
  • In dismissing the manslaughter appeal, the Court of Criminal Appeal confirmed that the total sentence remained appropriate given the gravity of the offending, notwithstanding technical imprecision in how the sentencing judge had expressed and structured the individual terms.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes Act 1900 (NSW), s 18(1)(b)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Medical Practice Act 1992 (NSW), s 66

Cases:
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
- R v Wilhelm [2010] NSWSC 378
- Baroudi v R [2007] NSWCCA 48
- Button v R [2010] NSWCCA 264
- R v Henry [1999] 46 NSWLR 346
- 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
- Bichar v R [2006] NSWCCA 1
- Dionys v R [2011] NSWCCA 272
- O'Neill-Shaw v R [2010] NSWCCA 42
- R v SY [2003] NSWCCA 291
- Zreika v R [2012] NSWCCA 44