R v Sood

[2006] NSWSC 1141

CITATION:	R v Sood [2006] NSWSC 1141
HEARING DATE(S):	3 - 5 July, 10 July, 12 - 14 July, 17 - 21 July, 24 - 28 July, 31 July, 1 - 4 August, 7 August, 9 - 11 August, 16 - 18 August, 21 - 23 August, 15 September 2006
JUDGMENT DATE :	31 October 2006
JUDGMENT OF:	Simpson J
DECISION:	Offender to enter into a good behaviour bond for a period of two years from Tuesday 31 October 2006; conditions applying during the term of bond are (i) to appear before the Court if called upon to do so at any time; (ii) to be of good behaviour; (iii) to advise the Registrar of the Court of any change of residential address; (iv) to report to the Officer in Charge, NSW Probation and Parole Service at Parramatta within seven days; (v) to accept the supervision and obey all reasonable directions of the NSW Probation and Parole Service.
CATCHWORDS:	remarks on sentence - jury verdict - unlawfully administer and unlawfully cause to be taken a drug with intent to procure miscarriage - facts relevant to sentence - aggravating factors - policy of law against unlawfully procuring miscarriage - focus upon health consequences - nature of unlawfulness - failure to make adequate inquiries - absence of belief in necessity to terminate pregnancy - offences complete on administration and consumption of drug - subsequent events not relevant to sentence - falsification of evidence - objective seriousness of offences - deterrence - denunciation - subjective circumstances
LEGISLATION CITED:	Crimes Act 1900 (NSW) s83 Crimes (Sentencing Procedure) Act 1999 (NSW) s7, s5, s8, s9, s10, s21A s66 Health Care Complaints Act 1993
CASES CITED:	R v Wald (1971) 3 NSWDCR 25 Skinner v Beaumont [1974] 2 NSWLR 106 R v Violet May Morgan [1972] NSWCCA, unreported 12 December 1972
PARTIES:	Crown in right of NSW Suman Sood - Offender
FILE NUMBER(S):	SC 2005/2353
COUNSEL:	M Tedeschi QC / T Smith - Crown P Boulten SC/ M Buscombe - Offender
SOLICITORS:	S Kavanagh - Crown P Tsaousidis - Offender

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Tuesday 31 October 2006

2005/2353 Regina v Suman Sood

REMARKS ON SENTENCE

1 HER HONOUR: The offender, Suman Sood, is to be sentenced following her conviction by a jury of two offences against s83 of the Crimes Act 1900 (NSW).

2 S83 of the Crimes Act provides:

“ 83 Administering drugs etc to woman with intent

Whosoever:


unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing, or

unlawfully uses any instrument or other means,

with intent in any such case to procure her miscarriage,
shall be liable to imprisonment for ten years.”

3 The specific offences of which Ms Sood was convicted were one of unlawfully administering to a patient (to whom I will refer as LT) and one of unlawfully causing to be taken by LT, a drug with intent to procure miscarriage. Each was committed on 20 May 2002 in circumstances that I will shortly relate. Each carries a maximum penalty of imprisonment for 10 years. It is common ground that the two offences were committed as part of a single indivisible enterprise and ought be punished accordingly – that is, if custodial sentences are to be imposed, the two ought to be specified to be served concurrently.

4 The indictment on which Ms Sood was charged contained also a count of manslaughter. On this count the jury returned a verdict of acquittal. Any evidence specifically related to that charge must, of course, be disregarded for present sentencing purposes. However, in the recital of the relevant facts for those purposes, it will be necessary to refer to the circumstances that gave rise to that charge.

5 There is another preliminary matter that it is convenient now to mention. Ms Sood’s convictions generated a great deal of media interest, with reports of alleged misconduct on her part going well beyond the facts now relevant to the sentencing decision. Extracts from the media reports found their way into evidence in the sentencing proceedings as illustrative of the public reaction to Ms Sood’s convictions. Except for the extent to which this publicity itself operated as some kind of extra-curial punishment, it is appropriate and necessary to disregard the content of those reports. Ms Sood is to be sentenced solely for the two offences against s83. It is true, of course, that her character and some aspects of her conduct are relevant to the overall evaluation of the correct sentence.

the factual circumstances of the offences

6 In May 2002 Ms Sood was a registered medical practitioner. She conducted a clinic known as the Australian Women’s Health Clinic, a large part of the business of which was to perform medical terminations of pregnancy. In that month LT was diagnosed as pregnant and the pregnancy was shown to be of 22 – 24 weeks’ duration. LT determined to have the pregnancy terminated. Because of the advanced stage to which the pregnancy had progressed, she had difficulty in locating any medical practitioner willing to undertake the termination. Eventually, contact was made with Ms Sood on LT’s behalf by her cousin. Ms Sood agreed to undertake the termination. (The case put on behalf of Ms Sood in the trial included a challenge to the Crown assertion that she did so agree, and intend, to terminate the pregnancy, but the jury, by its verdict, has foreclosed that issue.) Ms Sood quoted a fee of $1,800 for the procedure.

7 On Saturday 18 May 2002 LT, with her cousin, attended the clinic. LT completed some formal documentation and confirmed to Ms Sood that she wished to proceed with the termination. She asked about risks associated with termination at the late stage to which the pregnancy had progressed, but was reassured by Ms Sood that longer and heavier bleeding were the only likely complications.

8 Ms Sood did not carry out a physical examination; nor did she discuss with LT any alternatives to termination, or inquire as to LT’s reasons for her determination to proceed.

9 Ms Sood made an appointment for LT to return on the following Monday, 20 May. (This, too, was, by cross examination of prosecution witnesses, contested in the trial, but, again, the issue is determined against her by the jury verdicts.) On the Monday LT returned to the clinic alone. Ms Sood had obtained some tablets, which, it must be accepted, were prostaglandin tablets, also known as Cytotec. These are a medication used to induce labour, and are commonly used in late-term abortions. Ms Sood told LT that they had cost $500, and required LT to pay that amount of money. LT was in possession only of $400, which she handed to Ms Sood. Ms Sood told her that it would be necessary for her to return the following day, for the actual operation to be performed, and to bring the balance of the money with her. She then administered one tablet by inserting it into LT’s vagina. This act constituted the first offence, of unlawful administration of a drug for the prohibited purpose. Ms Sood then supplied LT with either one or two tablets, with instruction or advice to take them orally. This constituted the second offence, of unlawfully causing a drug to be taken for the same prohibited purpose. (It will be less cumbersome, and do no disservice to legal accuracy, if I refer to that offence henceforth as one of unlawful supply.) Ms Sood told LT to wait for an hour or so at the surgery before going home. She gave LT a card with her mobile telephone number on it. She made an appointment for LT to return the following morning for the surgical procedure to be undertaken.

10 The drug acted rather more quickly that would ordinarily have been expected and did, indeed, induce labour. At 7.00 pm that evening LT began to experience abdominal pains which, it is now known, were labour pains. LT’s cousin telephoned Ms Sood and advised her of the pains. Ms Sood advised that LT take a painkiller, which she did.

11 At 4.00 am the following morning, Tuesday, LT was in an advanced stage of labour. She delivered a baby boy, into a toilet bowl. The child did not survive. A real issue arose at the trial concerning whether he had or had not been born alive, that is, whether he had ever had any life outside the womb. This issue emerged in the context of the manslaughter count, which resulted in acquittal. Having regard to that verdict, it is neither necessary nor possible to make any finding on this question. It does not impact upon sentencing for the unlawful termination offences.

12 LT and the baby were taken to Westmead Hospital by ambulance. There, although a nurse and medical practitioner saw what they considered to be signs of life in the baby, a decision was made that his condition was inconsistent with survival, and no attempt was made to resuscitate him.

13 At about 8.00 am on the Tuesday morning, while LT was a patient in Westmead Hospital, she received a call on her mobile telephone. The source of the call was one of the telephones in Ms Sood’s clinic. It was, in the trial, the Crown’s contention that this call was made by Ms Sood herself, because LT had not attended for her appointment. It was the defence case that the call was not made by Ms Sood, but may have been made by an employee. LT asserted that it was Ms Sood who made the call, and that, even though LT told her that she had delivered the baby, Ms Sood nevertheless asked her for the balance of $100 owing for the tablets. LT’s evidence in this respect was not entirely reliable – she was confident that her mobile telephone showed that the call emanated from Ms Sood’s mobile telephone – that cannot be correct. I mention this because a good deal was made of it on behalf of the Crown as a factor relevant to the sentencing decision. If it is relevant at all, it is, in my opinion, of little if any weight, and I do not propose to attempt to resolve the factual contest. I will, however, return to an analysis of the facts relevant to sentencing.

Crimes Act s83

14 I have earlier set out s83. Relevantly, for the purposes of charges framed as were the present charges, proof of an offence against the section involves proof of:

· the administration (or supply with the intent that it be taken)

· of a drug (in this case, prostaglandin or Cytotec)

· with intent to procure miscarriage

· in circumstances that render the administration or supply unlawful.

15 At the trial, the administration and supply of the prostaglandin drug were disputed. LT was cross examined to suggest that, although Ms Sood did provide her with some tablets, these were not prostaglandin, and were not given to her with the intent that they would procure a miscarriage. Those issues were determined against Ms Sood by the jury verdicts. Sentencing must proceed on the basis that she did, on the one hand vaginally administer, and on the other provide with intent that it be taken, prostaglandin drugs, and that Ms Sood’s intention in doing so was to procure a miscarriage. It must also be taken, by the jury verdicts, that administration and supply of the drugs were unlawful. For the purposes of sentencing it is necessary to make findings of fact, consistent with the jury verdicts, as to the nature of the unlawfulness involved in Ms Sood’s conduct.

16 What is not clear from the jury verdicts is the nature of the unlawfulness found proved. Unlawfulness for the purpose of s83 is established by proof that the person accused acts to procure miscarriage in the absence of:

“an honest belief on reasonable grounds that what [he or she] did was necessary to preserve the life of the [woman] involved from serious danger to [her] life or physical or mental health, which the continuation of the pregnancy would entail, not merely the normal dangers of pregnancy and childbirth”

and that in the circumstances the danger created by the termination is not out of proportion to the danger intended to be averted: R v Wald (1971) 3 NSWDCR 25.

17 Unlawfulness is thus established if the Crown proves, beyond reasonable doubt, one or more of the following:

(i) that the accused person did not honestly and genuinely hold the requisite belief (i.e. that termination of pregnancy was necessary in order to protect the mother from serious danger to her life or health, whether physical or mental); or
(ii) that, if and to the extent that, such a belief were held, it was not based upon reasonable grounds; or
(iii) that a reasonable person in the position of the accused would have considered that the risk of termination was out of proportion to the risk to the mother of the continuation of the pregnancy.

18 It is the Crown position that the evidence establishes (not inconsistently with the jury verdicts) that Ms Sood did not honestly and genuinely hold the requisite belief. This can be seen from the evidence concerning her dealings and consultations with LT on the Saturday and the Monday. At no time, so it was said, did she inquire of LT her reasons for seeking termination of her pregnancy; at no time did she offer counselling as to alternatives available to her. More importantly, nor did she engage in any discussion with LT concerning the impact of the pregnancy or the anticipated birth of the child upon her physical or mental health.

19 I accept that the evidence does establish, beyond reasonable doubt, that Ms Sood did not make those inquiries, and that, accordingly, she could not have held the requisite belief (and that, even if, contrary to the evidence, she did hold such a belief, it could not have been based upon reasonable grounds). I would add, for completeness, that the third possible element of unlawfulness is not made out: the evidence satisfies me that the dangers of proceeding with a pregnancy are greater than the danger created by termination, even a termination as late as this one was.

20 I do not, however, accept in their entirety the submissions made on behalf of the Crown. In order not to do them injustice I will reproduce the relevant part of the transcript of the sentencing hearing:

“… We submit that the sections in the Crimes Act requiring a medical practitioner to come to a view, and a reasonable view at that, prior to performing the termination of a pregnancy, are there to ensure that such a serious step, as the termination of a pregnancy, is not undertaken by a woman without having the benefit of pre-operative counselling about her reasons for wanting the termination. And the reasons for that are quite apparent, that a woman who has such proper counselling is much less likely to regret her actions after such an irrevocable step.

We submit that the policy behind the law is to protect women from taking such an irrevocable step unwisely and without due consideration. And we submit that your Honour's sentence of this medical practitioner should send a clear message to medical practitioners performing terminations in New South Wales that the law requires them to ensure that a woman receives that proper counselling prior to having an abortion. … this case is not about changing the law of abortion; however, it is an appropriate opportunity for this Court to reinforce what the law is and has been for many years in this State, that the law requires the medical practitioner who is performing the termination to form a view that it is necessary, in the interests of the life or the health of the mother, and that that is a reasonable belief.”

21 The requirement of the law is not that medical practitioners contemplating termination of pregnancy undertake counselling in order to ensure that patients do not take an irrevocable step unwisely and without due consideration; nor is it that they seek to deter patients from doing so. The requirement of the law is that medical practitioners assess and balance the relative dangers of termination against the dangers of non-termination – that is, of obliging an unwilling patient to proceed with an unwanted pregnancy with all that that might, physically or mentally, entail.

22 While I do not doubt for a moment that some women undertaking termination of pregnancy might later suffer regret and self recrimination, and while I do not doubt for a moment that it lies within the province of medical practitioners offering services of this kind also to offer counselling services designed to avoid subsequent problems, that is not the focal point of the inquiry required by s83. The focal point of that inquiry is the prediction of harm to the health (physical or mental) of the woman if termination is not performed. This is broad enough to include economic, social or medical factors, including matters that can arise after the birth of the child.

23 I am satisfied that Ms Sood did not make the necessary inquiries on that issue, and thus could not have formed the necessary belief.

24 On the evidence I am, however, also satisfied that, had she turned her mind to those issues, it would have been open to Ms Sood to have formed the necessary belief. LT was a young woman aged 20 who presented, even when giving evidence four and a half years after these events, as somewhat vulnerable. At the time of her encounter with Ms Sood she was in a relationship that was foundering, and that subsequently failed. She was living with her parents, who were, it is true, very supportive, and with the father of the child, but was financially stressed. Her parents were planning to leave Australia and return to live in the Cook Islands from where they had come. LT would then have been left, at a very young age, with a newborn baby, without immediate parental support, with inadequate financial resources, and in a failing (or failed) relationship. It may well have been concluded that LT’s physical and/or mental health would have been put at risk by the continuation of the pregnancy.

25 However, it is neither necessary nor appropriate to make any concluded finding in that respect. I mention it only because of submissions made on behalf of the Crown. I am unable to find that this termination was one which, if the proper inquiries had been made, would not or could not have been lawfully performed. In other words, it was not an unlawful termination because of the circumstances of LT; it was an unlawful termination because Ms Sood failed to make the requisite inquiries in order to satisfy herself of the necessity to terminate the pregnancy. Had she made those inquiries, she may well have, quite properly, formed that belief and proceeded lawfully to terminate the pregnancy.

the objective seriousness of the offences

26 I repeat, the gist of Ms Sood’s offences was to take steps towards the termination of the pregnancy in the absence of a belief that it was necessary to do so. I reiterate and emphasise this because senior counsel for the Crown urged upon me a series of findings of fact, which, presumably were intended to be relevant to sentencing. Indeed, senior counsel for the Crown made this oral submission:

“We submit that your Honour is entitled to take into account her actions, not only at the time of administering the drugs; namely, in failing to warn her patient that she may go into labour, but also what we submit was her callous conduct shortly after 9pm that night, when again, for her own personal interests, we submit, she failed to warn her patient of the need to go to hospital if the pain persisted. These features, we submit, severely exacerbate the seriousness of her criminality and they show that she grossly failed in her duty of care to her patient.

The seriousness of the offences can be gauged by the fact that Dr Sood's actions placed her patient's life at risk by causing her to give birth in an unsupervised environment and that this was done purely for her own personal convenience. We submit that your Honour would be satisfied that Dr Sood was well aware, when she administered the drugs to [LT], of the risk, albeit slight, of her patient going into labour and she was prepared to take that risk in order to have the patient ready the next morning.

Even at 9pm on the Monday night she must have realised at that stage that the risk of a patient being in labour was much higher, but even then she was prepared to take the risk of an unsupervised birth rather than facing the embarrassment of sending her patient to a public hospital casualty unit.”

27 Senior counsel identified a series of 14 facts concerning the circumstances surrounding the offences. I will not set out all of those facts. I will illustrate the point by a sample. Relevant sentencing facts proposed on behalf of the Crown included the following:

“(vii) that the administration of Cytotec caused the miscarriage of the pregnancy;
(viii) that Ms Sood requested $500 and received $400 for tablets which cost approximately 35 cents per tablet;
(ix) that Ms Sood sent LT home without any proper warnings about the risks of going into labour or advice about what she should do in the event that she went into labour;
(xi) that at about 8.00 am on the Tuesday morning Ms Sood telephoned LT to ask why she had not presented at the clinic and, notwithstanding that she was told of the delivery of the baby, requested payment of the outstanding amount of $100.”

28 Generally speaking, it can be accepted that these facts are accurately stated. However, I do not accept that they are necessarily relevant to the sentencing exercise. Indeed, I am of the view, with respect to the Crown, that what was proposed contained a number of fundamental misconceptions. I will shortly explain why this is so.

29 There is good reason, on the evidence, to question the competence with which Ms Sood undertook the termination of LT’s pregnancy, and there is good reason, on the evidence, to question the standard of care she gave to LT in, for example, the manner in which she responded to the 9.00 pm telephone call from LT’s cousin. But Ms Sood is not charged with negligence and negligence is not an element of the offences of which she has been convicted. The submission put on behalf of the Crown, that these circumstances are relevant circumstances to be “taken into account” (a proposition from which senior counsel for Ms Sood did not dissent) on sentencing, calls for some analysis.

30 How are such facts to be taken into account? Logically, facts may only be taken into account in exacerbation of an offence or in mitigation of an offence. Logically, circumstances surrounding the commission of an offence are only relevant to, and may only be taken into account on, sentence if they point either to a harsher or to a more lenient sentence – that is, as exacerbating or aggravating the offence or as mitigating the offence. Determining whether such circumstances do either of these things requires some precision in the characterisation of the offence or offences in respect of which sentence is being considered.

31 It may well be and is, in my view, in this case relevant to state certain facts for the purpose of the narrative in order for the actual circumstances to be understood. This does not mean that all such facts are relevant to the sentencing decision.

32 I have laboured the point concerning the characterisation of the offences in respect of which Ms Sood stands to be sentenced. The offences are, of course, unlawful administration/ unlawful supply of drugs for the prohibited purpose. But, for the purpose of selecting the correct sentences, that can be further refined. The offences of which Ms Sood was convicted were constituted, not by any deficiency in the manner in which the termination of pregnancy was (or was to be) performed, but, rather, in the commencement of that process in the absence of the requisite belief. The offence of unlawful administration was completed when Ms Sood inserted a tablet into LT’s vagina. The offence of unlawful supply was completed when she gave one or two tablets to LT, to be taken orally, or at the latest, when LT took the tablet(s). Those offences are not exacerbated or aggravated by incompetence, or by negligence in the manner in which Ms Sood proposed to, or did, treat LT subsequently, nor by any callousness in her demands for additional payments, nor by any demands for excessive payment. Those are circumstances that do Ms Sood no credit, and reflect adversely upon her integrity and professionalism as a medical practitioner, but do not impact upon the offences for which she is to be sentenced. She is not to be sentenced for, and her offences were not aggravated by, callousness, negligence, lack of professionalism, or excessive charging.

33 (It may be that, were Ms Sood able to establish the contrary of the features relied upon – that is, that she administered to LT thoughtful, compassionate, or care beyond the call of duty treatment – she could rely upon those circumstance in mitigation of the sentences. That is a different issue, however, and could only arise in the context of a consideration of Ms Sood’s subjective circumstances.)

falsification of records

34 In this context, a more complex factual and legal issue arises. Well before Ms Sood was charged with these offences, and very shortly after her dealings with LT, Ms Sood was brought before a Medical Board constituted under the Health Care Complaints Act 1993. This was specifically in relation to the events concerning LT. In those proceedings, which were conducted with a degree of informality, Ms Sood denied that she had agreed to terminate LT’s pregnancy, and denied that she had ever intended to do so. She claimed that she had intended to refer LT to Queensland, where late-term terminations are routinely carried out. She claimed that she had asked a doctor employed by her, Dr A, to make inquiries as to the availability and cost of terminations in that state. Dr A supported Ms Sood in that claim in the Medical Board. He provided to the Board a note on which he had written the telephone number and a sum of money. He said that the telephone number was that of a clinic in Brisbane, and the sum of money was the fee quoted for a 23 week termination when he telephoned, as requested by Ms Sood.

35 All this gave rise to a significant factual issue in the trial. Dr A gave evidence in the trial to the same effect as he had given to the Medical Board. A second note, similar to the first, was produced. It was the Crown case that the notes were falsifications, fabricated by Dr A in order to exonerate Ms Sood. Telephone records were produced by the Crown to support the assertion that no such call had ever been made. Dr A himself fluctuated in what he said on the issue. At one time he told a police officer that he had not made the call, and that he had created the note at the instance of Ms Sood in order to corroborate her account of her dealings with LT and her denial of having administered or supplied the drug. Shortly after, however, he recanted, and maintained that he had made the call, and that the notes recorded the information he had been given.

36 I was therefore invited by the Crown to find, as an aggravating factor relevant to sentence, that, following the events of 21 May 2002, Ms Sood deliberately fabricated evidence in order to conceal her offences. This involves two questions: whether, as a matter of fact, the Crown has established, to the requisite standard (beyond reasonable doubt), that she did so; and, if so, whether subsequent concealment of an offence is available to be taken into account as an aggravating feature relevant to sentence. Senior counsel for Ms Sood urged caution in making any findings of fact adverse to Dr A. It is, of course, true that Dr A is not a party to these proceedings, and has not had any opportunity to be heard on what, if any, findings I should make. Any findings of fact that I make adverse to Ms Sood on this issue will inevitably involve findings of fact concerning his conduct. I cannot allow that to cause me to shrink from making factual findings on important issues. Any such findings could not, and are not intended to, bind Dr A. Findings concerning his conduct are merely a step, but an essential step, on the way to making relevant factual conclusions concerning Ms Sood’s conduct.

37 Having observed Dr A give evidence on more than one occasion, I am satisfied beyond reasonable doubt that he did indeed fabricate the information that he gave to the Medical Board and that he did so at the instance of Ms Sood. I make clear that he did so initially for the purpose of the Medical Board, to preserve Ms Sood’s entitlement to practise medicine; and that, having done so, he found himself obliged to maintain the deception, even to the point of giving false evidence in this Court. There is no reason to believe that, initially, he had any anticipation, or any reason to anticipate, that Ms Sood would be criminally charged, or that he would be forced to continue and escalate his deceptions. As I have said, I am satisfied that Dr A took this course directly at the instance of Ms Sood, for the purpose of protecting her right to practise medicine. I am not satisfied that this was for the purpose of defeating a possible criminal charge.

38 That said, however, I do not believe that conduct of this kind, post-dating the offences, can be taken into account in aggravation of the offences, or as increasing the penalty to be imposed. It is analogous to raising a false alibi. Such conduct may be relevant to questions of contrition or remorse, and therefore deprive the offender of a claim to leniency on that score, but cannot and does not affect the assessment of the penalty appropriate to meet the demands of sentencing.

39 S21A(2) of the Crimes (Sentencing Procedure) Act 1999 “the Sentencing Procedure Act”) sets out aggravating factors which the court is obliged to take into account in sentencing. In addition to those I have already disposed of, senior counsel for the Crown urged that sub-paragraphs (g) and (k) are also relevant. By sub-para (g) the court is required to take into account (where it is the fact) that:

“… the injury, emotional harm, loss or damage caused by the offence was substantial.”

40 There are two reasons why this must be rejected. Firstly, there was little or no evidence of injury, emotional harm, loss or damage to LT caused by the offences. Even if it were the case that she did suffer emotionally as a result of the premature birth and subsequent death of the baby, that was caused, not by the offences of unlawful administration and supply of prostaglandins, but by surrounding circumstances, including, the fact of the birth and death (whether death occurred in utero or after birth).

41 Similarly, the aggravating factor for which sub-para (k) provides is inapt. That sub-para requires the court to take into account (where it is the fact):

“…the offender abused a position of trust or authority in relation to the victim.”

42 Ms Sood, as a medical practitioner, occupied a position of trust or authority in relation to LT. However, LT was not, in any conventional sense, a “victim” of the offences properly characterised.

deterrence

43 It was urged upon me, on behalf of the Crown, that the sentences to be imposed should contain a significant element of deterrence. I have given this submission a good deal of thought, and have concluded that it ought not to be accepted. I should explain why.

44 As I will relate when I come, as I shortly will, to the subjective features, Ms Sood has voluntarily surrendered her right to practise medicine. It is extremely unlikely that she will ever practise again. Specific deterrence therefore is of little, if any, moment. She will not have the opportunity to commit an offence of this kind again.

45 The question of general deterrence is more complex. Plainly, if any real risk exists that other medical practitioners will be tempted to conduct themselves as Ms Sood has done, then the sentences ought to be designed to discourage that conduct. But, in my view, the very fact that Ms Sood has been charged, and the further fact that she has been convicted, as well as the attendant publicity, which has been widespread, together, I hope, with these remarks, are sufficient to bring home to those other medical practitioners the realities of their obligations and to deter them from conducting themselves unlawfully. I do not believe that imposing a heavier punishment on Ms Sood is likely to add to the deterrent effect of the circumstances I have mentioned. This is not a case in which Ms Sood ought to bear the burden of punishment for what others might do in the future.

denunciation

46 I do accept that the sentences must be seen to be such as to convey denunciation of Ms Sood’s conduct. That brings me to an assessment of where these offences lie in the scale of seriousness of offences against s83. Senior counsel for the Crown realistically accepted that they are not in the most serious category (such an offence might be, for example, he proposed, a termination of pregnancy performed by an unqualified, unskilled person in unhygienic premises). But nor, he submitted, are they in the least serious category (such an offence, he proposed, might be a termination of pregnancy performed by a competent, skilled medical practitioner having a genuine belief in its necessity that was not reasonably based). I think that this is a realistic approach, and I propose to adopt it. I specify, however, that I do not regard these offences as in any major way above the lower level of seriousness.

subjective circumstances

47 I now turn to Ms Sood’s subjective circumstances.

48 Ms Sood was born in India on 23 September 1949. She is now 57 years of age. She is the oldest of four children of a medical family – ten generations of whom have practised medicine in India. All of her brothers also studied medicine. She was the first female in the family to do so. Her early life in India was, she acknowledges, privileged. She graduated in 1971.

49 She married in India but the marriage failed, and she was left, at the age of 23, with two sons. She migrated to Australia with her sons in 1990, following a period of harassment and incidences of extortion resulting from the political situation in the area where she lived. She obtained medical registration in Australia and practised in hospitals in Adelaide and Sydney. From 1993 she worked in private practice, including in the clinic where the present offences were committed.

50 A number of witnesses gave evidence on Ms Sood’s behalf. One of these was her son Anuj. Many were former patients. The common thread of the evidence they gave was of Ms Sood’s dedication in the practice of her profession and the care, well beyond what would ordinarily be expected, that she devoted to her patients. For example, it was said that she routinely gave her mobile telephone number to patients (as she did to LT) and invited them to call her at any time. Instances were given of her deviating from her intended journey to make, at short notice, a house call to a distressed patient. Her son said:

“… her mobile was always on and she was always taking calls. I have never seen her reject a call and she put the patients’ concerns first ahead of family commitments.”

He described Ms Sood as a very caring and loving person, a role model to himself and his brother (who is himself a doctor).

51 One witness, a specialist gynaecologist/obstetrician, spoke highly of her encounters with Ms Sood, on two occasions when she had sought Ms Sood’s services. It is unnecessary further to detail the evidence of this nature; it is sufficient to say that it was consistent and established that Ms Sood had a very strong following among those who availed themselves of her medical services. That is consistent with events that occurred after the jury verdict. I received, unsolicited, a large volume of correspondence from individuals who also wrote of the high level of care they had received from Ms Sood, and lamented her conviction. There is no reason to doubt the sincerity of any of these witnesses or correspondents, or, indeed, the accuracy of their perceptions.

52 There is, however, another side to this. The support is anything but universal. Exhibits B and C in the sentencing procedings were an agreed list of complaints against Ms Sood then current before the Medical Tribunal, and an outline of the nature of certain other complaints. Not a great deal of detail is given of the nature of the complaints, but it is plain that there has existed a pattern of conduct that has given rise to concern in the authorities concerned with regulation and discipline of the medical profession. A significant number of patients whose care was in question were named, contradicting any suggestion that an unprofessional (or worse) approach to these women occurred only on isolated occasions. I was told by senior counsel for Ms Sood that the proceedings before the Medical Tribunal were continuing, but that no single complaint had been the subject of final determination. He anticipated that some or all would be found proved, that the Tribunal would find Ms Sood guilty of professional misconduct and/or unsatisfactory professional conduct, and that an order would be made removing her name from the register and a period of disqualification from reapplying would be imposed. I understand that this has in fact come to pass.

53 Again, Ms Sood is not to be additionally punished in respect of these offences by reason of general incompetence; but this evidence is relevant in the evaluation of the subjective case advanced by her, and her claim to dedicated professionalism.

54 Ms Sood is in poor health. Her general practitioner has diagnosed her as suffering six different physical conditions and a psychiatric condition, the latter identified as “adjustment disorder with anxiety and depressed mood”. The physical conditions are:

1. ischaemic heart disease

2. severe primary Raynaud’s phenomena

3. osteoporosis

4. osteoarthritis

5. bi-lateral swollen knees due to injuries

6. gastro-esophageal reflux disease.

(Indeed, during the course of the trial, Ms Sood was admitted to hospital suffering a heart disorder.)

55 A treating psychiatrist, Dr Lim, also provided a report. Ms Sood first consulted him on 28 March 2005. He then found her to be severely distressed and diagnosed severe adjustment disorder with mixed anxiety and depressed moods. He prescribed medication. In August 2006, following her conviction, Dr Lim considered that she presented a high risk of suicide. He arranged an immediate hospital admission (from which she discharged herself the following day). On 7 September Dr Lim found her mental state had deteriorated and her depression was severe. He maintained his view that she was a very high risk of self-harm. He considered that she would be unable to cope with a custodial sentence; and that her depression is very likely further to deteriorate; and that (if a custodial sentence is imposed), the risk of suicide will be extremely high.

56 Lay evidence to similar effect was given by Ms Sood’s son. He described her, on one occasion shortly after conviction, as breaking down and crying uncontrollably. He said that her profession had meant a great deal to her and that its loss has caused significant depression. He, too, thought that she was very brittle, and that a custodial sentence would “basically break her”.

57 I accept that it is open to me to take into account one professional, and one lay, view as to the possible consequences of the imposition of a custodial sentence. I do not for a moment think that Ms Sood’s current plight is attributable solely to her conviction. On the material before me it is evident that real questions exist as to her competence to practise medicine, and that disciplinary proceedings are at least equally the cause of her present dire position. I have to determine whether, notwithstanding the strong evidence that harm (self inflicted or otherwise) might come to her if she is sentenced to a term of imprisonment, nevertheless the circumstances of her offences require that that course be taken. If it does, faith must be reposed in the Corrective Services authorities to protect her from realisation of the fears of her psychiatrist and her son.

58 Her financial position is dire; she is bankrupt.

59 S3A of the Sentencing Procedure Act prescribes the purposes of sentencing as:

“(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.”

60 S5(1) provides:

“(1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.”

61 I am therefore required to consider all possible alternatives to a term of imprisonment. These are limited. They are:

· a Community Service Order pursuant to s8 of the Sentencing Procedure Act

· a good behaviour bond pursuant to s9 of the Sentencing Procedure Act

· conditional discharge pursuant to s10 of the Sentencing Procedure Act.

62 A pre-sentence report, to the contents of which I have already made reference, was in evidence. Ms Sood was assessed as “suitable for a medium – low level of intervention” by the Probation and Parole Service, with focus upon her mental health and treatment, and her rehabilitation to the community without her profession.

63 She was assessed as suitable for a Community Service Order, but, having regard to her many physical health issues, capable of performing only light duties. No suitable placement was available to her in her area at the time the report was written, and the Probation and Parole Service therefore would be unable to administer such an order.

64 She was assessed as eligible but unsuitable for sentence to be served by way of periodic detention pursuant to s66 of the Sentencing Procedure Act, or for an order that a sentence be served in home detention pursuant to s7 that Act. In any event, these latter possibilities must be put to one side; it is appropriate to consider the power to make either order only after a determination has been made that a sentence of imprisonment is to be imposed. It is wrong in principle to consider, before a decision is made under s5(1), whether a sentence should be served by way of periodic detention or in home detention.

65 There is little precedent to assist in this difficult sentencing task. I was referred to such previous decisions as there have been, but they afford little guidance. On 30 March 1981 George Frederick James Smart, a medical practitioner, was convicted on what appears to have been a single charge of an offence against s83. It appears, from the transcript of the judge’s directions to the jury, that the issue in that case was also whether or not the doctor had formed the requisite view about the necessity to undertake the termination. It also appears that he was a competent and respected medical practitioner, but that complications occurred, and that he referred the patient to a large nearby hospital.

66 Dr Smart was given the benefit of the then equivalent of a good behaviour bond, without the specification of any conditions.

67 In 1974 a Dr Rellee George Skinner was convicted of conspiring with an unqualified person to procure the miscarriage of various women. He was sentenced to imprisonment for twelve months to be served by way of periodic detention. As a consequence, the Medical Tribunal directed that his name be removed from the register of medical practitioners in NSW. He appealed against that order, and the Court of Appeal substituted for the disqualification a reprimand (Skinner v Beaumont [1974] 2 NSWLR 106). The facts stated above are drawn from that judgment.

68 On 19 June 1972 Ms Violet May Morgan was convicted on a charge of unlawfully using an instrument to procure a miscarriage. She was sentenced to imprisonment for three years with a non-parole period of twelve months. That sentence was upheld in the Court of Criminal Appeal: R v Violet May Morgan, unreported, 12 December 1972. However, there are significant divergences between that case and the present. It seems clear from the sentencing remarks that Ms Morgan did not hold any medical qualifications. She had previously been convicted of the same offence, for which she was sentenced to imprisonment, but the sentence was suspended. The offence the subject of the judgment was committed during the course of the suspension. Also relevant was the method of procurement of miscarriage, which was said to have been primitive and dangerous, leaving the patient at risk of septicaemia.

69 I have no wish to underplay the seriousness of the offences committed by Ms Sood. However, as I have said, they rate relatively low on the scale of objective gravity of offences against s83; and her subjective circumstances, which are significant, militate against the imposition of custodial sentences. I have not concluded, pursuant to s5 of the Sentencing Procedure Act, that no penalty other than a term of imprisonment is appropriate. Accordingly, I may not sentence Ms Sood to imprisonment. I have concluded that a Community Service Order is not appropriate in her case; and it would be inappropriate to make an order for conditional discharge. The only remaining option is a good behaviour bond pursuant to s9.

70 I do not intend to make the bond of lengthy duration, because I have little doubt that Ms Sood will be of good behaviour. However, the bond is imposed in order to express the community’s disapprobation of her conduct.

71 The offender is convicted. Pursuant to s9 of the Crimes (Sentencing Procedure) Act I order the offender to enter into a good behaviour bond for a period of two years from today. The conditions applying during the term of the bond are as follows:

(i) to appear before the Court if called upon to do so at any time;
(ii) to be of good behaviour;
(iii) to advise the Registrar of the Court of any change of residential address;
(iv) to report to the Officer in Charge, NSW Probation and Parole Service at Parramatta within seven days;
(v) to accept the supervision and obey all reasonable directions of the NSW Probation and Parole Service.

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