R v Rafferty - [1999] WASC 254

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: R -v- RAFFERTY [1999] WASC 254

CORAM: McKECHNIE J

HEARD: 29 OCTOBER 1999

DELIVERED : 29 OCTOBER 1999

FILE NO/S: INS 141 of 1999

BETWEEN: THE QUEEN
Crown
AND
JOHN PAUL RAFFERTY
Offender

Catchwords:

Criminal law - Sentence - Two counts of armed robbery - Offender addicted to heroin - Relevance of naltrexone program - Principles of sentencing - Long-term interest of the community

Legislation:

Criminal Code (WA)

Sentencing Act 1995 (WA)

Result:

Intensive Supervision Order for 18 months with program and community service requirements

Representation:

Counsel:

Crown: Ms P S Chong
Offender: Ms H E Prince

Solicitors:

Crown: State Director of Public Prosecutions
Offender: Marilyn Loveday & Associates

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

McKECHNIE J: John Paul Rafferty, you have pleaded guilty to two serious offences of violence. Both offences occurred on the same day and within a short time of each other. On the first occasion you attempted to rob the McDonalds Restaurant in Bicton. You were frustrated by the bravery of the assistants, one of whom pulled down your hood so your face was recorded on camera. You left and the McDonalds' staff contacted the police.
You went to a nearby store and terrorised the staff, obtaining some $220. Again you left but shortly afterwards you were arrested and the money was recovered. You appear to have been intoxicated at the time of your offences and indeed you appear to have an addictive personality.
The crime of armed robbery carries a maximum sentence of imprisonment for life. It is rightly regarded in the community as a serious offence, accompanied, as it is, by the twin evils of violence and deprivation of property. In this case the victims of the first crime were young people, like yourself, and of the second crime a mature woman, like your mother.
The Court of Criminal Appeal has indicated that the range of sentences commonly imposed for armed robbery stands at 6 to 9 years imprisonment for a single offence. Furthermore, over 90 per cent of offenders who come before the Supreme Court are imprisoned for the crime of armed robbery.
The Sentencing Act requires me to sentence to a term commensurate with the seriousness of the offences. It also requires that I must not impose a sentence of imprisonment unless I decide that the seriousness of these offences is such that only imprisonment can be justified or the protection of the community requires it. It is the second which has caused me considerable thought.
You have pleaded guilty at the earliest reasonable opportunity. This factor entitles you to consideration as to whether I impose a sentence of imprisonment at all. If I make a decision to impose a sentence, the early plea entitles you to a significant reduction on the sentence that would otherwise be imposed.
I have looked at matters which are personal to you. You are 21. For many years your life has been in chaos due to a significant heroin addiction which in turn is a progression from an alcohol addiction. You are also addicted to other drugs. Just prior to this offence you had drunk excessively and intravenously used amphetamines. Since your arrest, however, you have, for the first time, sought help for your addictions.
Your efforts have been patchy. However, that is only to be expected in the initial stages of a cure. You have been assisted by the court diversion service, although you have not taken full acceptance of the service they have offered. Relevantly, you have commenced and continued the naltrexone program. As Dr O'Neil stated in his first report dated 29 September 1999:
"Naltrexone is a totally different approach to opiate agonists such as methadone, buprenorphine (sic) or long‑acting morphine. All of these techniques represent an approach of continuing the patient's opiate addiction in a more controlled manner. Naltrexone, however, is an antagonist or blocker which is the opposite."
It is because I required to know more about the naltrexone program in general, and its possibility of use in circumstances like these, that Dr O'Neil has attended and given evidence this morning. He did reach the conclusion that if you could be afforded the opportunity to remain on the naltrexone program in the community your prognosis is good.
There is a problem with addiction and crime. It is the case that Perth has experienced an enormous upsurge in armed robberies and other crimes of violence over the last six years and most of these can be linked to addiction or habituation with illicit drugs, particularly heroin and amphetamines. You (and many others in a similar position) now find yourself in the Supreme Court at the doors of a lengthy prison sentence because of your addiction.
The purposes of sentencing you and other offenders are varied. As the crown prosecutor has mentioned, the need to deter you and others from crime is often a significant factor. At the same time a balance must be struck in the long‑term interests of the community between the prospect of immediate punishment and the possibility of rehabilitation and reform. Rehabilitation can generally be better achieved outside of prison, within the community, but that depends on the will of the offender as much as anything else.
If you and others like you, who are presently addicted to drugs and thereby commit crime, can be weaned off drugs, through the strength of your own will, with the assistance of professionals and the family who loves you, then the wider community will benefit in the long term notwithstanding a natural desire for immediate vengeance and punishment. It is for that reason, to explore further the prospect of rehabilitation, that I remanded you on bail with some conditions. I regret to say that you have failed to meet many of those conditions for attendance. Why you did so is a matter that only you can tell, but, as the crown rightly points out, if with the prospect of imprisonment you nevertheless treated the court diversion service at your whim, it does not augur well for the future.
I have this morning heard evidence from Dr O'Neil and have had the advantage of his report.
You are a marginal candidate for any disposition other than imprisonment. Were I to imprison you now for these offences, having regard to your plea of guilty at an early stage, your comparative youth and your mild record as an adult, I would impose a sentence on count 2 of 5 years and count 1 of 2-1/2 years, each to be served concurrently and with a parole eligibility order.
However, I am persuaded that notwithstanding your patchy record of attendance with the court diversion service, you are nevertheless, for the first time, taking active steps to control your addictions. I believe those addictions are what led you into committing these very serious crimes. If you can control them and become a law‑abiding member of the community, then the wider community interest will in the long term be better served by giving you an opportunity to control your addictions outside the direct prison system.
However, that will depend on you. As your counsel has pointed out if, as I intend to, I impose an intensive supervision order ("ISO") and you fail to attend on a random drug test, that will lead to an automatic breach of your ISO. If you fail to carry out the requirements of the community corrections officer, particularly as to counselling, it is likely to do the same thing. That is why I have indicated to you the alternative, in my view, would be a sentence of 5 years imprisonment.
You should clearly understand that I am not extending any act of leniency to you. The crimes you have committed and the terror that you put your victims in deserves no lenient approach. I have simply made a decision to impose an ISO because, having regard to the possibility of controlling your addiction through the naltrexone program, I believe that in your case that is the way the community is likely to be better protected.
John Paul Rafferty, you will be sentenced to an ISO for a period of 18 months. I impose a program requirement to allow you the opportunity to recognise, take steps to control, and receive appropriate treatment for your drug addiction. I also impose a community service requirement of 120 hours.
There are standard obligations for an ISO. You must report to the community corrections centre within 72 hours after being released by the court or as otherwise directed by a community corrections officer. You must not change your address or place of employment without the prior permission of a community corrections officer. You must not leave Western Australia except with, and in accordance with, the permission of the chief executive officer and you must comply with all other lawful requirements. When the forms are completed, you will be free to go from here.
You may stand down.

Schedule

Summary of evidence of Dr Alexander George O'Neil

Evidence-in-chief

What is naltrexone?

"MS PRINCE: Could you explain to us, Dr O'Neil, what naltrexone is and how it works?---Naltrexone is a chemical and the molecule is very similar to morphine. In fact it's actually manufactured from morphine. Heroin gets broken down into morphine and the morphine molecules rest on receptor sites. These receptor sites are stimulated by the presence of the morphine. The naltrexone itself has a small change in the ring structure so that it looks like morphine but it's a dud. You know, it just goes into the receptor, blocks it and causes no excitation. While it's sitting there you can't get any other morphine in but the effect on the receptor site is to settle the receptor site down that would otherwise be giving problems to the patient. So it blocks the activity of morphine that would normally be given but it also settles down the nerve roots that are irritable.
How is it different from methadone in its operation?---Well, one is a dud and one is an active molecule. So methadone is an active molecule that makes you euphoric, gets rid of the pain and stops you breathing just the same as morphine or heroin does. Naltrexone does nothing. It just goes and clogs all these receptor sites and looks like morphine but it's a dud and so it doesn't make you excited, doesn't get rid of the pain. In fact it interferes with the ability to control pain.
What is the effect then on the craving for opiate for a patient treated with naltrexone?---You'd probably wake up in the morning with no craving for heroin or morphine at all, but the people who have been subject to massive doses of heroin going into their bloodstream each day gradually damage all the receptors. Like the fat man who has got diabetes or damages his pancreas until his pancreas doesn't work any more, the 18-year-old who has dropped massive doses of opiates into his bloodstream each day will gradually damage his receptors. There are very sensitive chemical receptors which are supposed to measure minute quantities of indigenous opiates and instead he puts a big needle in his arm, gives himself massive doses each day until he eventually damages all his receptors. When he wakes up in the morning, all his receptors that are damaged are giving him messages that they're damaged, there's no morphine left and those messages go back to the brain and he'll go and do very strange, silly, things to get some morphine. When you wake up in the morning and, if you do have damaged receptors, putting these dud molecules onto the receptors, settles them down.
What does naltrexone do in relation to that craving?---If you settle all these receptors down with these dud molecules that sit there, then those receptors settle down and the patient wakes up in the morning and smiles and says: "I haven't got the foggiest but today for some reason I don't feel like using heroin."

Research on naltrexone

"In relation to your research, what size study group have you been investigating?---I have commented on 1400 patients. We're up to patient 1700, but we've got detailed information on 1400.
So that's 1400 patients in which state?---In Perth.
In Perth alone?---In Perth, and it's about 2,500 treatments because a number of the patients come back several times before they get the hang of being good.
By 'being good', you mean not lapsing back?---I think after two to three treatments the patients say: 'Gosh, every time I stop my naltrexone a few weeks later I tend to go off and use. I'd better not stop my naltrexone any more' and they usually come with a smile on their face, telling me that.
Can you provide us with the success rate of the naltrexone treatment as opposed to the methadone treatment in terms of, if you like, dirty urines?---I think the work done by Clinipath Laboratories by John Cochrane is very definitive. He took all of the results since he started working with us. He took results over the last year. He has 1222 urines which are from naltrexone patients and 1.5 per cent had some opiate present in the urine. He looked at 187 methadone urines and these were from the patients we would normally regard as the better methadone patients, the community patients - not the William Street patients but community patients - who had recently started on methadone in the last year or so and the incidence of opiates in the methadone group is 17 per cent.
That's opiates in addition to methadone?---In addition to methadone and the incidence in the other group was 1.5 per cent. That means they were present 10 times more often.
All right?---He then very carefully looked at an average of about four urines per patient and although the opiates were only present in 17 per cent of the methadone urines, if you were patient-specific they were actually present in 57 per cent of the patients. So 57 per cent of the methadone patients were contaminated. Seven per cent of the naltrexone patients were contaminated. The pattern with the methadone patients and the naltrexone patients was very different. The naltrexone patients, in the first month of their treatment, would tend to have opiates present occasionally. By the second or third month of their treatment they realised it was a waste of time, if they were on naltrexone, to use opiates. So their opiate use decreased as time went on.
How long will it take the naltrexone to come out of the system, such that there will be an effect from opiate usage?---In somebody who's taking a full tablet each day, there would be quite good cover for the first 24 hours. The half-life is said to be 20 hours, so after 20 hours the level is half what it normally is.
For naltrexone?---With naltrexone, you would have an average level of about 20 nanograms per mil. It's a very low level but that's the level you get as your big dose. Twenty hours later you'll be down to 10 nanograms per mil. Twenty hours later you'll be down to 5 nanograms per mil. Twenty hours later you'll be down to 2 nanograms per mil. Two nanograms per mil is said to be the critical cut-off level, so you get about three 20-hour periods of cover.
So a period of, say, two to three days. After two to three days the naltrexone is - - -?---After two to three days you start becoming dangerous again.
Dangerous in the sense of what?---Dangerous in the sense that your craving will slowly return."

Auditing of naltrexone program

"If I can move on then to talk about the issue of auditing of naltrexone, how can you guarantee that a previously opiate-dependent young person is still on naltrexone?---The studies confirmed naltrexone was effective but it didn't work very well because the people didn't take it. So it didn't take long to really meet a small number of patients and their parents and say to the parents: 'Can you absolutely guarantee that you'll actually get these tablets into them each day?' After the first few weeks I realised the patients were failing because they were fooling the parents by spitting the tablets out, sticking them under the tongue or elegantly taking the bottle when the parents were missing and taking nail varnish and covering every individual tablet, putting them back in the bottle after the tablets were dry and then swallowing the tablets each day and having an injection as well. The nail varnish would protect the patients from having to take the tablets. We taught the parents to grind up the tablets. Once the parents ground up the tablets and started to learn to beat the kids at their own game, we had a system whereby the kids were always full of naltrexone. If you are always full of naltrexone you really can't use effectively but you can't expect the addict to do that by himself and have no auditor."

Testing by presence of naltrexone metabolite

"Is there some other method? What I'm perhaps getting at, doctor, is that in fact naltrexone metabolite comes through the urine of a - it can be tested in that way?"
"McKECHNIE J: I think what counsel is suggesting to you is whether urinalysis provides a check. One of the things that I'm concerned about is either within the prison system or within community corrections - is there any way that we can keep tabs on this young man - to ensure that he has been taking his naltrexone?---The answer is you can be confident when the metabolite is there that naltrexone has been taken. The molecule has been broken down and we're seeing in the urine part of the molecule that originally went into the patient. This molecule has been broken down and excreted in the kidneys, so we're actually looking for the presence of that metabolite. We have two curves that shown on the HPLC machine. One is the residual quantity of naltrexone but the big quantity in the urine is the actual metabolite of naltrexone having gone through and been broken down in the liver and the presence of naltrexone and the metabolite give hard evidence that the patient hasn't succeeded in vomiting up his naltrexone."
"MS PRINCE: I think your evidence previously, Dr O'Neil, was that within three to six days of the absence of naltrexone in the urine, that's when you're going to start showing the withdrawal type behaviour that could end up in, say, further criminal offending in a desperate opiate dependant?---That's right. I think in some of the notes I've given you - I've encourage people to do urines twice a week and that's largely to keep somebody alive because if somebody's taking their urine (sample) on Monday morning and the naltrexone's there Monday they won't die Monday, they won't die Tuesday and they won't die Wednesday. Then if they've got another urine taken on Thursday that has metabolites present, they won't die Thursday or Friday, Saturday - I haven't covered Sunday fully but I think on a practical basis I've tried to compromise down to two urines a week."

Length of time for naltrexone program

"Is there a minimum time within which they should remain on naltrexone? Dr Chan gave naltrexone regularly for the first year that people went home and during that year while they were on naltrexone they were being monitored three times a week by the prison officers. There was above 90 per cent compliance and the patients did very well. There are very few failures of people relapsing. At the end of a year they stopped and during the following 12 months every month the graph started going down so that by the end of the year, 80 per cent of them had gone back and used opiates at some time. So the message is that stopping at the end of 12 months is probably not a good idea. Nobody has any scientific information beyond 12 months but the patterns of behaviour that we are seeing are that as people recover from their opiate addiction there's a two or three year period before they have re-established all their value systems and in some cases its probably appropriate to go way beyond 3 years."

Naltrexone program within prison system

"Have you had any experience in relation to the impact of imprisonment on the health of drug dependent, opiate dependent, young people?---Sometimes it helps them a great deal and sometimes it damages them a great deal. This patient, from what I can see and from what I know of him, is getting his opiate dependence under good control and under very tight control in the family control that's being exerted outside the prison. When I see somebody as tightly controlled as he has been by his mother, my confidence in that system is higher than my confidence in the prison system at present. It's partly because the prison system is stretched, but it's partly because if you are unlucky and you're sharing a cell with somebody who has got a packet and naltrexone is not given to you, then you're in a very vulnerable situation. In this age group, in somebody who's recovering from opiate dependency, he's safer in a tightly controlled family situation which continues to be monitored closely.

Do you know whether naltrexone is available in the prison system?---If his mother can find the money, $7 or $8 a day, then he will be allowed to have naltrexone in the prison system, but the prison system will give no guarantee to be thorough at making him take his tablets or auditing that he will take his tablets because the medical staff say they're overloaded. If his mother can find $50 or $60 a week and if she provides the tablets - but nobody is going to guarantee that they will actually audit that he will take them. If he goes through a period of depression where he's not in the mood of taking them, he won't get any guarantee. The big problem is they're supplied free while he's in the home environment and they are not supplied free in the prison system. The doctors in the prison system can't go down and check every patient every day to take the tablets."

Cross-examination

Research of naltrexone

"MS CHONG: Dr O'Neil, my learned friend asked you a question about how long a patient has to be on naltrexone and you quoted some studies done by Dr Chan in Singapore? If I could take you to the number of people that you have treated in Perth, of the 1400 patients that you have treated how many to your knowledge have recommenced opiate usage?---It's a difficult question. It's a difficult question if I'm looking at the 1400 but we did go back and look at the first 778 patients very recently and we were able to track down about 640. We tracked down 640 of the 778 and of the 640 patients 53 per cent of them had gone back to opiates at some time. I think I spent a couple of days being quite depressed that the figures were as bad as that. So of the 640 patients, 348 had actually gone back and used opiates at some time. I went through the notes of the 348 and 335 of the 348 had come back repentant saying: 'We're really sorry that we stopped our naltrexone. Please re-treat us.' So what was amazing was that 96 per cent of those who had gone back and offended and gone back to opiates had come back spontaneously without any prison officer going out or without any of us going out, they just simply came back saying: 'Gosh, I made an error. Please put me back on the naltrexone.' So we salvage a lot of the ones we lose for a short period of time and on the second or third time they relapse they come back and often do very well. So initially we claim about a third and they are good from the time we treat them."

The naltrexone program

"You mentioned about the government providing free naltrexone. That is only when a patient is accepted into the Next Step program run by the Health Department. Is that not right?---Yes. What we do is we whip the patient off the street, put him on Naltrexone and we send them down to Next Step the next day and so all of our patients have been sent down to Next Step usually the next day.
Right. With the program run by your centre, is that supported by other services such as psychology, group sessions and individual counselling?---That's right There would probably be about 200 or 300 volunteers associated with the program and there's a session run in Riverton each week. That's on Thursday evenings. There's a session run in Tuart Hill each Tuesday evening for parents and for addicts. There's a session run in Subiaco each week for parents and for addicts. The person who runs the Subiaco session for addicts was previously a professor at Harvard University in psychology. He has worked with a whole number of centres professionally over the last 20 years doing counselling. So we've been very fortunate with a whole lot of professional people coming in and helping with a whole range of counselling activities for parents and for the families. There's a lot of counselling to go into the families as well.
The success of your program depends to a large extent on the carer monitoring the patient and ensuring that the patient takes the naltrexone. Is that not right?---That's true but in complex patients, who are suffering from depression and who are suffering from alcohol abuse and some amphetamines and some opiate abuse, often we will concentrate on attacking their opiate abuse first and getting it under control and then trying to tackle each of the other two or three areas that are causing major problems. So far in this person's management, the opiate abuse is coming under tight control because of his willingness to cooperate with his mother and with his family. The other two problems he needs to be challenged on, but he has not had amphetamines consistently in the year and so I've got a reasonable confidence there. I'm anxious that he follows through some of his recent commitments to give up his alcohol."

Auditing of program

"Are there any patients on court orders presently in your program?---I was going to say about a third of the people.
How many?---I was going to say about a third of the patients. I mean, a very large number.
Those are the patients who have been placed by the court on intensive supervision orders - court orders?---Yes, we have a lot of people who are going through intensive supervision orders who have obligations to us as well as to other agencies.
To your knowledge, is there room for a carer to be less than forthright in the auditing of the patient's taking of the naltrexone for fear that the patient may be breached for failing to comply with the court order?---Well, in this case the carer would have to be prepared to take a naltrexone tablet themselves and provide a fake urine. I haven't come across such an example yet. I think most of the carers understand their obligations enough not to go and do that. I mean, it would be almost impossible, if you've got an auditing system that's properly set up. I haven't seen a carer provide a false urine for a patient."
"McKECHNIE J: So the urine is an integral part of the whole system?---The urine is a very absolute test. I don't think I've seen any carer provide a false signature. We have these charts which you've got a copy of that the parent will be asked to sign that they've actually crushed naltrexone tablets and actually signed it. When we're doing the routine interview with parents, quite often we say: "Is this your signature?" I've seen wives under pressure but not mothers."