Norris v The Queen
[2001] WASCA 68
•14 MARCH 2001
NORRIS -v- THE QUEEN [2001] WASCA 68
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 68 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:189/2000 | 15 FEBRUARY 2001 | |
| Coram: | MALCOLM CJ KENNEDY J STEYTLER J | 14/03/01 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction dismissed Leave to appeal against sentence granted Appeal against sentence allowed | ||
| PDF Version |
| Parties: | PETER DEREK NORRIS THE QUEEN |
Catchwords: | Criminal law and procedure Appeal against conviction for supply of drug known as "Fantasy" Admissibility of evidence of prior dealings with "Fantasy" Whether probative value exceeds potential prejudice Whether probative value affected by fact that evidence came from accomplice Direction to jury regarding use of propensity evidence adequate Criminal law and procedure Appeal against sentence Whether trial Judge erred in taking account of other related offences which did not result in charges Seriousness of drug "Fantasy" considered Consideration of parity principle Differing circumstances as between applicant and co-offenders Sentence reduced from 6 years to 4 years imprisonment with eligibility for parole |
Legislation: | Misuse of Drugs Act 1981, s 34(1) Sentencing Act 1995, s 7(3) |
Case References: | BRS v The Queen (1997) 191 CLR 275 Gipp v The Queen (1998) 194 CLR 106 Harriman v The Queen (1989) 167 CLR 590 Koushappis v The Queen [2001] WASCA 18 Pfennig v The Queen (1995) 182 CLR 461 R v Beserick (1993) 30 NSWLR 510 R v Bright [1916] 2 KB 441 R v De Simoni (1981) 147 CLR 383 R v Diefenbach (1999) 108 A Crim R 19 R v Huchison [1972] 1 WLR 398 R v Jurkovic (1981) 6 A Crim R 215 Veen v The Queen (No 2) (1988) 164 CLR 465 Atholwood v The Queen [2000] WASCA 76 B v The Queen (1992) 175 CLR 599 Christianos v The Queen [2000] WASCA 184 Cook v The Queen (2000) 22 WAR 67 Corrigan v The Queen, unreported; CCA SCt of WA; Library No 980700; 17 November 1998 Gavin v The Queen (1992) 6 WAR 195 Giowkos v The Queen, unreported; CCA SCt of WA; Library No 980224; 5 May 1998 Lowndes v The Queen (1999) 195 CLR 665 Melbourne v R (1999) 164 ALR 465 Plomp v The Queen (1963) 110 CLR 234 Quach v R [1999] WASCA 210 R v Krakouer (1999) 107 A Crim R 408 R v Olbrich (1999) 73 ALJR 1550 R v Rahme (1991) 53 A Crim R 8 R v Robertson (1989) 44 A Crim R 224 R v Ruich [2000] WASCA 84 R v Tektonopoulos (1999) 106 A Crim R 111 Shepherd v The Queen (1990) 170 CLR 573 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : NORRIS -v- THE QUEEN [2001] WASCA 68 CORAM : MALCOLM CJ
- KENNEDY J
STEYTLER J
- CCA 197 of 2000
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Appeal against conviction for supply of drug known as "Fantasy" - Admissibility of evidence of prior dealings with "Fantasy" - Whether probative value exceeds potential prejudice - Whether probative value affected by fact that evidence came from accomplice - Direction to jury regarding use of propensity evidence adequate
Criminal law and procedure - Appeal against sentence - Whether trial Judge erred in taking account of other related offences which did not result in charges - Seriousness of drug "Fantasy" considered - Consideration of parity principle - Differing circumstances as between applicant and co-offenders - Sentence reduced from 6 years to 4 years imprisonment with eligibility for parole
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Legislation:
Misuse of Drugs Act 1981, s 34(1)
Sentencing Act 1995, s 7(3)
Result:
Appeal against conviction dismissed
Leave to appeal against sentence granted
Appeal against sentence allowed
Representation:
Counsel:
Applicant : Mr R E Lindsay
Respondent : Mr S E Stone
Solicitors:
Applicant : Beau Hanbury
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
BRS v The Queen (1997) 191 CLR 275
Gipp v The Queen (1998) 194 CLR 106
Harriman v The Queen (1989) 167 CLR 590
Koushappis v The Queen [2001] WASCA 18
Pfennig v The Queen (1995) 182 CLR 461
R v Beserick (1993) 30 NSWLR 510
R v Bright [1916] 2 KB 441
R v De Simoni (1981) 147 CLR 383
R v Diefenbach (1999) 108 A Crim R 19
R v Huchison [1972] 1 WLR 398
R v Jurkovic (1981) 6 A Crim R 215
Veen v The Queen (No 2) (1988) 164 CLR 465
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Case(s) also cited:
Atholwood v The Queen [2000] WASCA 76
B v The Queen (1992) 175 CLR 599
Christianos v The Queen [2000] WASCA 184
Cook v The Queen (2000) 22 WAR 67
Corrigan v The Queen, unreported; CCA SCt of WA; Library No 980700; 17 November 1998
Gavin v The Queen (1992) 6 WAR 195
Giowkos v The Queen, unreported; CCA SCt of WA; Library No 980224; 5 May 1998
Lowndes v The Queen (1999) 195 CLR 665
Melbourne v R (1999) 164 ALR 465
Plomp v The Queen (1963) 110 CLR 234
Quach v R [1999] WASCA 210
R v Krakouer (1999) 107 A Crim R 408
R v Olbrich (1999) 73 ALJR 1550
R v Rahme (1991) 53 A Crim R 8
R v Robertson (1989) 44 A Crim R 224
R v Ruich [2000] WASCA 84
R v Tektonopoulos (1999) 106 A Crim R 111
Shepherd v The Queen (1990) 170 CLR 573
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1 MALCOLM CJ: In my opinion, this appeal against conviction should be dismissed for the reasons to be published by Steytler J. I also agree that the application for leave to appeal against sentence should be granted, the appeal allowed and the sentence imposed by the learned sentencing Judge set aside and, in lieu, the appellant should be sentenced to imprisonment for four years with eligibility for parole. I also reach that conclusion for the reasons to be published by Steytler J.
2 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Steytler J with which I am in agreement. I also agree with the orders proposed.
3 STEYTLER J: The appellant was convicted, on 4 August 2000, on one count of supplying a drug known as "Fantasy" (4-Hydroxybutanoic acid) to another. He was sentenced, on 24 August 2000, to a period of 6 years' imprisonment. He appeals against his conviction and seeks leave to appeal against the sentence imposed upon him.
The appeal against conviction
4 The appeal against conviction rests essentially upon two propositions. The first (raised by grounds 1 and 2 of the grounds of appeal) is that the learned trial Judge erred in law in admitting evidence of prior dealings by the appellant with the drug "Fantasy". The second (raised by ground 3) is that, if that evidence was admissible, the learned trial Judge erred in the directions which he gave as to the use to which it might be put.
5 The count upon which the appellant was convicted related to events on 27 August 1998. The jury found that on that day a police undercover operative, who went under the name "Tom", purchased 2 litres of the drug from the appellant. The drug was supplied in a wine cask. It was concealed in a bladder, secreted above a second bladder containing wine which could be tapped from the cask. The Crown case relied largely upon the evidence of an alleged accomplice, Allan Herbert, who gave evidence of the appellant's involvement in the transaction.
6 The appellant denied any knowledge of the drug. He said in evidence that Herbert and Herbert's girlfriend, Susan Russell, had, on the previous evening, visited the home of the appellant's girlfriend, Joanna McDonald, and had brought with them a cask of wine. He said that, on their departure, they left the cask behind. The next day, he said,
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- he was telephoned by Russell who invited him and McDonald to go to the "Last Drop" tavern for a drink. He said that Russell asked him if he and McDonald could bring with them the cask of wine which she had accidentally left behind on the previous evening. It was proposed that the three would meet at the Rockingham Shopping Plaza. He said that McDonald collected the cask and drove off in the direction of the Plaza in her motor vehicle. He drove to the Plaza in a "company" car used by him. When he arrived there, he said, McDonald telephoned him on his mobile telephone and said that she was going to stop at his uncle's house in View Street and that she would see him later. He said that Russell then arrived at the Plaza. She approached him and told him that she no longer wanted to go for a drink but that she wanted her cask of wine. He suggested that she follow him to View Street where she could get it from McDonald. She did so. While the two cars were driving towards View Street, he said, he saw McDonald approaching in the opposite direction and flashed his lights at her. All three vehicles then pulled into a car park. The cask was given to Russell and she left. McDonald's evidence was to similar effect.
7 The appellant also said in evidence that he had never touched drugs, did not agree with them and that he had never had any dealings with Herbert in respect of drugs.
8 Herbert's evidence was to very different effect. He said that he had known the appellant since 1997. In early 1998, after the appellant and McDonald returned from a trip to Bali, the appellant told him that he had located a new drug called "Fantasy", that he had the formula to make it and that he intended to do so and to sell it. Herbert agreed to sell the drug on his behalf. Then, he said, in February 1998 the appellant turned up at a barbecue at Herbert's house with samples of the drug which were distributed for people to try it. Later that year, during the Easter weekend, Herbert had another party at his house which was attended by the appellant. The appellant had with him 50 plastic bottles of the drug and asked Herbert to sell them for him. He did so. Herbert also said that, from time to time, he sold the drug on the appellant's behalf at a nightclub. Sometimes he would collect the drug from the appellant in a car park.
9 Herbert said that in June 1998 he was introduced to a person known only to him as "Tom" and agreed to supply him with "Fantasy". He supplied "Tom" with small quantities of the drug on three occasions. He obtained it from the appellant and McDonald. When Herbert told the appellant about "Tom" the appellant, apparently suspecting that "Tom" might be an undercover policeman, warned him to be careful.
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10 Then, in August 1998, "Tom" asked Herbert if he could purchase about two litres of the drug. On 26 August 1998 Herbert and Russell met with the appellant and McDonald. They discussed the proposed transaction and the appellant suggested the use of the wine cask. They arranged that Herbert should meet with "Tom" and that Russell would contact the appellant and then go to an agreed location to collect the drug. McDonald and the appellant would go there in separate cars. If there was a police car present both would drive off and the police would not know which car to chase. On the following day, Herbert said, he and Russell drove to a car park in Rockingham. "Tom" was parked nearby. "Tom" paid a deposit of $1,000 and Russell, after making a telephone call, drove off. Herbert and "Tom" then drove to a nearby "Chicken Treat" outlet where they had arranged to meet Russell. Russell duly arrived with the cask containing the drug. She handed it to Herbert, who in turn handed it to "Tom". Russell and Herbert were then arrested.
11 Counsel for the appellant contended in argument that, while the evidence of the appellant's initial discussions with Herbert after his return from holidaying in Bali and of his activities at the two parties to which I have referred might have been admissible to show his knowledge of and dealings with the drug "Fantasy", the evidence of specific sales at nightclubs and of the prior sales to "Tom" should not have been admitted. He contended that the prejudicial value of this evidence greatly outweighed its probative effect.
12 However it is apparent from what I have said that if the Crown had not been able to adduce the evidence of Herbert's prior dealings with the appellant in respect of the drug "Fantasy" then the jury would have been left to choose between two versions of what had taken place on 27 August 1998, the first being that offered by the appellant and McDonald and the second being that offered by Herbert, in the absence of any prior context. There would have been little to explain the relationship between the appellant and Herbert or why it was that the transaction in question was handled by Herbert and Russell, rather than by the appellant himself if, as Herbert said, the appellant was the supplier of the drug.
13 There can be no doubt that this evidence, when taken together with that relating to the events on 27 August 1998, was probative of the appellant's guilt in respect of the transaction on that day, indeed, conclusively so in my opinion. Without it the jury would have been left with a potentially very misleading picture of the appellant's role in what would have appeared to it to have been an isolated and to some extent inexplicable transaction. On the other hand, once the evidence was
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- admitted and the jury understood the prior relationship between the appellant and Herbert, their usual modus operandi and the appellant's suspicion of "Tom", the appellant's conduct on the day in question became readily explicable and the inherent improbability of the version of events offered by him and McDonald was pointed up, leaving no other reasonable view of the evidence than one supporting the appellant's guilt. (See, in this respect, Harriman v The Queen (1989) 167 CLR 590 at 630; R v Beserick (1993) 30 NSWLR 510 at 515; Pfennig v The Queen (1995) 182 CLR 461 at 481 - 482; Gipp v The Queen (1998) 194 CLR 106 at 112 (per Gaudron J), 132 (per McHugh and Hayne JJ), 156 (per Kirby J) and 168 - 169 (per Callinan J)). That being so, it seems to me that the evidence was rightly admitted.
14 During the course of argument on the appeal, counsel for the appellant sought to make two other points in support of his proposition that the evidence in question should have been excluded.
15 The first (which was not raised by any ground of appeal) was that the defence was only given notice of the evidence of prior dealings with the drug one week before the trial, giving it little time to seek evidence to negate the assertions made against the appellant. However the then counsel for the appellant did not, at the trial, mention any specific prejudice occasioned by the late notice (and none has, to this day, been mentioned) and nor, at any time, did he seek an adjournment of the trial in order to make further investigations. It is consequently now too late to raise any complaint in this respect.
16 The second was that, even if evidence of the kind complained of is ordinarily admissible in circumstances in which it is necessary to explain a particular relationship or to place particular events in context, it should not have been admitted in this case where the evidence was that of an accomplice rather than some "independent" third person.
17 I am unable to accept this contention. It seems to me that if evidence of the kind to which I have referred is admissible then this is so regardless of whether it is given by an accomplice or some "independent" third person. It is, in every case, a matter for the jury, properly directed, to decide whether the evidence is sufficiently credible to warrant reliance being placed upon it.
18 I should add that in Harriman, above, evidence of an accused's prior involvement with an accomplice in the sale of heroin was ruled to be admissible on the ground that it was highly probative of the criminal
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- character of the accused's association with that accomplice on a particular occasion. There the accomplice was the chief prosecution witness. While counsel for the appellant sought to distinguish that case upon the basis that other witnesses had provided some corroboration of the evidence of the accomplice, I am not persuaded that the absence of corroboration would have led to any different result, so far as the admissibility of the evidence was concerned. Certainly, there is nothing in the reasoning of the court in that case (or, for that matter, in any other case of which I am aware) which would support that proposition.
19 I am consequently not persuaded that either of grounds 1 and 2 has been made out.
20 As to ground 3, which advances the second proposition to which I have referred at the beginning of these reasons, the cases make plain that if evidence admitted for reasons other than propensity in fact reveals a criminal propensity on the part of the accused then careful directions must be given as to the use which can be made of the evidence by the jury. (See Gipp, above, at 132 (per McHugh and Hayne JJ) and 156 (per Kirby J.) In BRS v The Queen (1997) 191 CLR 275 at 305 McHugh J said:
"If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose. In some cases, the judge may need to be more specific. He or she may need to direct the jurors that they cannot use the evidence for an identified purpose. If the evidence is admitted because the Crown wishes to rely on the accused's propensity as an element in the chain of proof, it is especially necessary that the judge give the jurors clear directions as to the manner in which they may use the propensity evidence."
21 The learned trial Judge in this case gave the following directions as regards the evidence complained of:
"There is also the evidence from Herbert that the accused was involved in a number of previous occasions in supplying fantasy for Herbert to sell to the undercover agent Tom. That evidence is admissible but it's only admissible to put the alleged offence in its context. The crown says this offence was one of a series of offences committed by the accused but if you only heard of the last one, it would really be quite artificial; you would be
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- hearing about it in isolation and that that wouldn't be a fair way of dealing with the matter.
You can take into account the other incidents only if you are satisfied beyond reasonable doubt that they occurred. You must not move from that general evidence of misconduct, if you accept it, to assume that therefore the accused man committed the offence with which he's charged. You must not think if you are satisfied about the general evidence given that the accused person is a man of bad character and would therefore be likely to commit the offence charged. You can only convict him of that charge if you are satisfied beyond reasonable doubt that it was committed and that it was committed by the accused.
Of course, if you are satisfied beyond reasonable doubt that the accused man was involved in earlier incidents with respect to fantasy, then that would be a matter that would go to his character generally and might mitigate against his evidence about him being a person of good character; but it is important that you put it in the right context and don't assume from that that he has committed this offence because it's for the crown to prove this particular charge."
22 It seems to me that these directions were sufficient to warn the jury of the limited use to which the evidence might be put. I am not persuaded that the learned trial Judge made any error in that respect.
The application for leave to appeal against sentence
23 That brings me to the appeal against sentence.
24 The applicant raises three grounds. The first is that the sentence of 6 years' imprisonment was excessive having regard to all of the circumstances. The second is that the learned sentencing Judge erred in taking into account that the offence for which the applicant was convicted was "not an isolated matter and that the supply of this drug was part of an ongoing business venture". The applicant submits that he was not charged in respect of any other transactions and these should consequently not have been taken into account when sentencing him. The third ground is broadly to the effect that the learned sentencing Judge did not sufficiently take into account the fact that in some countries "Fantasy" is not prohibited, that the period of imprisonment imposed was considerably higher than any sentence imposed elsewhere in regard to this particular
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- drug and that the learned sentencing Judge placed too much emphasis upon a report by Professor J W Paterson in circumstances in which Professor Paterson was not cross-examined and other evidence suggested that the impact and deleterious effect of the drug was significantly less than might be supposed from what had been said by Professor Paterson.
25 I will deal first with ground 2.
26 The Australian High Court has enunciated the principle (which, in this State, must be considered in the light of s 7(3) of the Sentencing Act 1995) that a Judge, in imposing a sentence, "is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence" (R v De Simoni (1981) 147 CLR 383 at 389, per Gibbs CJ). Similarly, and more pertinently for present purposes, a Judge cannot, in sentencing an offender, take into account other related offences which have not been charged.
27 In R v Bright [1916] 2 KB 441 (referred to in De Simoni, above, at 389) a prisoner had pleaded guilty to a charge of attempting to elicit information with regard to the manufacture of war material contrary to the Defence of the Realm (Consolidation) Regulations 1914 (UK). The trial Judge, however, sentenced him to penal servitude for life upon the basis that he had done the acts charged with the intention of assisting the enemy, this being a more serious offence which had not been charged in the indictment. The Court of Criminal Appeal held that he had been wrong in so doing. Darling J, who delivered the judgment of the Court, said (at 444):
"A judge has a perfect right to consider whether the prisoner's motive is good or bad, so that he may decide whether to pass a severe or a lenient sentence, but ... he must not attribute to the prisoner that he is guilty of an offence with which he has not been charged ... "
28 In R v Huchison [1972] 1 WLR 398 (also referred to in De Simoni, above, at 390) the Court of Criminal Appeal had to deal with a defendant who had pleaded guilty to an indictment containing a single count of incest with his daughter. He said that it had been an isolated incident but his daughter, in her deposition statement, said that there had been intercourse over a long period. The sentencing Judge accordingly heard evidence from both. Each was cross-examined and re-examined. He
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- concluded that the defendant was not telling the truth and that there had been regular intercourse and sentenced the defendant accordingly. The Court of Criminal Appeal allowed the appeal, holding that the course taken by the Judge had effectively deprived the defendant of his right to trial by jury in respect of the other offences alleged and was wrong.
29 In R v Jurkovic (1981) 6 A Crim R 215 Fox J, with whom Kelly and Ellicott JJ were in agreement, said at 217:
"It is necessary to avoid reliance on evidence as to other offences for which there are not convictions. If what is properly established does suggest or go towards proving some other offence, its effect in that connection must be disregarded. The accused can only be sentenced for the crime for which he has been found guilty, or in respect of which he has pleaded guilty."
30 In the present case the learned trial Judge, in the course of his sentencing remarks, said that the offence of which the appellant was convicted:
" ... followed a number of incidents in which smaller quantities of fantasy had been supplied by the offender to his co-offender Mitchell [sic], but he is not charged with those offences and I make it clear I am not sentencing him for them but it does demonstrate that this is not an isolated matter and that the supply of this drug was part of an ongoing business venture."
- Immediately after saying that, his Honour went on to say:
"The co-offender Herbert was sentenced by Chief Judge Hammond on 28 May 1999. The chief judge referred to fantasy in the same terms to which I have, quoting the same articles, and he described it as being a serious drug, particularly dangerous because it was relatively cheap and it could be clandestinely administered. The chief judge said that with respect to the co-offender the starting point for this particular offence was a sentence of 5 years' imprisonment.
In my opinion the evidence makes it clear that the offender in this case is further up the chain. There is no evidence that he is the manufacturer but he supplied a significant quantity to the co-offender Mitchell [sic]. It is well-known and accepted that the further up the chain of supply of illicit drugs ... an offender is placed, the more serious is the offence. The further up the
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- chain the wider the distribution likely, the more difficult it is to apprehend such offenders.
In my opinion, the proper starting point for this offending is a sentence of 7 years' imprisonment ... "
31 His Honour was, no doubt, entitled to take into account the applicant's organisational role in the offence charged in assessing his degree of criminality when compared with that of his co-offenders (cfR v Diefenbach (1999) 108 A Crim R 19) but he could not, on the existing state of authority, take into account the fact that this was not an isolated offence or that the supply of the drug was part of an ongoing business venture in circumstances in which the applicant had not been charged with, and convicted of, the other offences the assumed existence of which led his Honour to that conclusion. That his Honour did so appears to me to follow from what was said by him in the first of the paragraphs which I have quoted above, even when that paragraph is read in the context of those which follow it.
32 I should add that the Crown relied, in submitting that his Honour was entitled to rely upon the prior offences to which he referred as illuminating the applicant's moral culpability and as demonstrating a continuing attitude of disobedience to the law, upon what was said by the majority of the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 and by Kennedy J in Koushappis v The Queen [2001] WASCA 18 at [13]. However each of those cases dealt with a situation in which an antecedent criminal history was demonstrated by prior convictions and not with one in which offences which had neither been charged nor admitted were taken into account.
33 It follows, in my opinion, that the appeal against sentence should be allowed on this ground.
34 While it is strictly unnecessary for me, in the light of that conclusion, to consider grounds 1 and 3 of the grounds of appeal against sentence I should, because the issues there raised are relevant to the re-sentencing of the appellant, say something about them.
35 It is true that the learned sentencing Judge relied, in assessing the gravity of dealing in the drug "Fantasy", upon what was said by Professor Paterson, who was not cross-examined or otherwise questioned as regards the contents of his report. It might also be so that others might differ from the opinions which have been formed by Professor Paterson. However the fact is that Professor Paterson's report was made available to the
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- defence prior to the hearing at which the applicant was sentenced and no objection was made to it being tendered in evidence. Nor was any application made to cross-examine Professor Paterson or to lead any evidence which contradicted or detracted from his report. Rather, the applicant's counsel, having earlier said that he had had the benefit of going through sentencing remarks which had been made, partly in reliance upon the same report, by Hammond DCJ in the course of sentencing the appellant's co-offender Herbert, expressly informed the sentencing Judge that he was "on instructions not to ... reduce the seriousness of this particular drug".
36 In those circumstances it would not, in my opinion, have been appropriate for the learned sentencing Judge to have done otherwise, in considering the nature and seriousness of the drug "Fantasy", than to have relied upon the evidence of Professor Paterson. Indeed, it is difficult to see what else he could have done.
37 I should add that, while we were referred to some examples of sentences which have been imposed in respect of this drug in other countries, the novelty of the drug is such that there were only very few of them and none appears to relate to a comparable offence.
38 That brings me to the question of what should now be done in the light of the conclusions at which I have arrived. It seems to me that this Court should re-sentence the applicant and that this should be done upon the basis of the materials which were before the learned sentencing Judge, including the evidence of Professor Paterson and evidence relating to the personal circumstances of the applicant, some of which are mentioned in the particulars to ground 1 of the grounds of appeal.
39 So far as the seriousness of the drug is concerned, Professor Paterson has said in his report that:
"In the last few years GHB, also known as 'Fantasy' or 'GBH', has gained popularity in the nightclub scene. It is thought of as a 'recreational' drug offering a pleasant alcohol like, but hangover free, 'high' with alleged prosexual effects. Most early studies suggested there were no serious long-term side effects. In 1991 two scientists from the California Department of Health Services wrote a report on ten poisonings associated with GHB. These workers warned of a 'tremendous potential for abuse'. They noted that their patients reported a 'pleasurable sensation or high'. Several continued taking the substance because it
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- made them feel good. The report acknowledged that there was 'no documented report of long term detrimental effects'. In the report 'severe reactions' generally occurred when patients took an unmeasured dose or several doses within a short period of time.
GHB is particularly dangerous when it is dispensed in unknown quantities, because of the steep slope of the dose response curve. A steep dose response curve means that a small increase in the dose to produce a pharmacological or desired effect, causes serious or life threatening effects. If the dose required to produce a 'pleasant' effect is doubled, or repeated too quickly, the subject may lose consciousness rapidly.
Investigators report that GHB, taken in an appropriate dose, induces a pleasant state of relaxation and tranquillity. There is usually mild euphoria and a tendency to verbalize. Anxieties and inhibitions tend to disappear. It is reported that subjects have a feeling of emotional warmth, wellbeing and pleasant drowsiness. Some investigations have suggested a new pharmacological classification, a 'sociabilising' drug.
The 'morning after' effects lack the unpleasant or debilitating characteristics seen with alcohol. Subjects reported feeling particularly refreshed the next day. The acute effects of the drug develop very quickly, within five to twenty minutes after ingestion. Small increases in the ingested amount lead to significant intensification of the effect. An average 'safe' dose of GHB would be approximately 2.5gm. If GHB of varying potencies were available and the potency doubled it would be easy to take an overdose. It has also been reported that when GHB is combined with other central nervous system depressants, such as alcohol or benzodiazepines, its effect is markedly increased. The onset of coma following an overdose is extremely rapid. The subject becomes deeply comatose within 20 or 30 minutes. Cardiac and respiratory depression may occur and the overdose is potentially fatal if appropriate treatment in a medical facility is not instituted rapidly.
In comparison to known drugs of addiction, 'Fantasy' or GHB is more dangerous than cannabis because of the steep dose response curve. The problems of varying purity of supply are similar to those seen with heroin. At present there is no good
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- evidence of long-term side effects caused by chronic use of the drug.
In 1990 the Federal Drug Agency (USA) (FDA) began a detailed investigation of GHB distribution because of a number of cases of GHB related illness. The reported symptoms included vomiting, dizziness, tremors and seizures. Many subjects required hospitalization and some deaths were linked to the consumption of GHB. By the end of 1991, the FDA and the Department of Justice (USA) took enforcement action against several companies and individuals involved in manufacturing and distributing GHB. The Agency instituted an automatic detention policy to prevent products containing GHB from being imported. After an initial reduction in the problem, resurgence in illicit use of GHB occurred. All products encountered were being produced in clandestine laboratories. Internet sites are available with detailed instructions on 'home synthesis' of GHB."
- After making some other comments Professor Paterson went on to say:
"Unlike other drugs of abuse, GHB is thought to have aphrodisiac properties and increase sexual feelings. No controlled studies are available. It may be that its most important prosexual property is disinhibition, which occurs with other sedatives. Whatever the truth, it is widely thought that GHB and also Rohypnol have aphrodisiac like effects. Both drugs have been termed 'date rape' drugs. GHB is a liquid and Rohypnol is easily dissolved and hence can be added to the drinks of unsuspecting victims (particularly hazardous if the drink contains alcohol).
In summary,
• 4-Hydroxybutanoic acid, gamma-hydroxybutyrate, GHB, 'Fantasy', 'GBH', occurs in the body and is probably a neurotransmitter. It has been used under appropriate medical supervision as an anaesthetic, a hypnotic and an adjunct in the withdrawal of alcohol or opioids.
• It is an extremely powerful depressant of brain function. It is sold illicitly as a 'recreational' drug. It is said to produce a pleasant alcohol like 'high'. Users report a feeling of emotional warmth, wellbeing and pleasant drowsiness with loss of anxiety and inhibitions.
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- • It is extremely dangerous as small increases above the 'therapeutic dose' rapidly result in deep coma with respiratory and cardiovascular depression. If intensive medical treatment is not quickly instituted a fatal outcome is likely.
• A severe overdose may occur on the first exposure.
- • Alcohol significantly increases the depressant effect of GHB. The potential for 'spiking' drinks poses an additional hazard.
I believe that uncontrolled use of this drug will be extremely hazardous. It is, in my opinion, more dangerous than cannabis or 'ecstasy' and other derivatives of amphetamine taken by mouth. The risk is similar to that taken by intravenous heroin users when the strength of the heroin changes significantly.
A larger number of young people are likely to be at risk, as they do not have to take the step to intravenous drug use."
40 It is apparent from the evidence of Professor Paterson, and that is, as I have said, the only evidence before the court, that there is a very significant risk attached to the uncontrolled use of this drug. That is, no doubt, the reason why the legislature has seen fit to include it in a category of drugs the sale of which causes a maximum penalty of 25 years' imprisonment and a fine of $100,000 (s 34(1) of the Misuse of Drugs Act 1981). In sentencing the applicant's co-offenders, Herbert and Russell, the Chief Judge of the District Court found that the drug was more deleterious and harmful than cannabis by a very significant margin but did not consider that the present state of the evidence was sufficient to go further than that. That, with respect, seems to me to be an appropriate approach to adopt at this early stage so far as this drug is concerned. However any sentences imposed in respect of dealings with it must, on the available evidence, take into account the fact that small increases above the "therapeutic dose" can result in death and the drug's potential for use as a "date rape" drug.
41 That brings me, next, to the circumstances of this offence and of the applicant and to a comparison of the sentence received by the applicant with that imposed upon Herbert, who was sentenced by Hammond DCJ to a period of 3 years' imprisonment, and Russell, who was sentenced to a period of suspended imprisonment.
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42 The circumstances of this offence were serious. The quantity of the drug which was supplied by the applicant to Herbert for on-sale was large. The wine cask contained just over two litres of liquid containing 26 per cent of the drug. On Professor Paterson's evidence that was enough to comprise somewhere between about 500 and 750 doses. While it is true that this was the quantity requested by the undercover policeman, the fact remains that the applicant was prepared to supply it to him.
43 I should say, next, that the appellant's criminality in respect of the commission of the offence of which he was convicted seems to me to have been greater than that of any of his co-offenders. It was the appellant who supplied the drug to Herbert for on-sale. The bulk of the profit from the transaction was to go to him and Herbert and Russell were, in effect, his tools for the purposes of a commercial transaction, notwithstanding that it was Herbert with whom the undercover policeman "Tom" first made contact and consequently Herbert who alerted the applicant to the prospective sale.
44 There are various personal circumstances which should be mentioned in the applicant's favour. He was 38 years old at the time of sentencing and had no prior convictions, unlike his co-offender Herbert, who had an extensive record in respect of drug related offences. He is in a stable relationship with McDonald and appears, apart from the poor example set by the commission of this offence, to have been an exemplary father to his two children from a former marriage (now aged approximately 20 and 16 years respectively) and to McDonald's children. He is highly thought of by his current employer.
45 On the other hand he has chosen, unlike Herbert and Russell (who appear to have co-operated with the police), not to plead guilty and has shown no remorse for his offending.
46 Taking into account all of these circumstances, including the sentences imposed upon the appellant's co-offenders and the various matters which have been raised on behalf of the appellant, it seems to me that an appropriate sentence in respect of the appellant's commission of the offence charged would be one of four years imprisonment with eligibility for parole.
Conclusion
47 It follows from all of the aforegoing that I would dismiss the appeal against conviction, grant leave to appeal against sentence, allow that
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- appeal, set aside the sentence imposed by the learned sentencing Judge and sentence the appellant, in lieu, to a period of 4 years' imprisonment with eligibility for parole.
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