R v Suresh Nair
[2011] NSWDC 124
•26 August 2011
District Court
New South Wales
Medium Neutral Citation: R v Suresh Nair [2011] NSWDC 124 Hearing dates: 30 June 2011 Decision date: 26 August 2011 Jurisdiction: Criminal Before: Judge Toner SC Decision: Count 1: Sentenced to a term of imprisonment of 2 years and 3 months to commence on 9 January 2010 and expire on 8 April 2012.
Count 2: Sentenced to a non parole period of 2 years commencing 1 May 2013 and expiring on 30 April 2015 and a total sentence of 4 years and 6 months, expiring on 31 October 2017.
Count 3:
Sentenced to a non parole period of 2 years, 9 months and 23 days commencing on 9 October 2010 and expiring on 31 July 2013 with a balance of imprisonment of 11 months and 8 days expiring on 8 July 2014. (Form 1 taken into account)
Catchwords: Manslaughter Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Criminal Case Conferencing Trial Act 2008Cases Cited: R v Allpass (1993) 72 ACrimR 561
R v Way (2004) 60 NSWLR 168
R v Edwards (1996) 90 ACrimR 510
Ta & Nguyen [2011] NSWCCA 32
Ryan v The Queen (2001) 206 CLR 267Category: Sentence Parties: Suresh Nair Representation: Margaret Cunneen SC - Crown
Peter Hamill SC - Offender
Katherine Thompson - Crown
Cathy Crittenden - Offender
File Number(s): 2009/267311 2010/31838 2010/8460 Publication restriction: Paragraphs 76 to 78 suppressed.
SENTENCE
Suresh Nair stands to be sentenced in relation to three offences, the first being the manslaughter of Suellen Domingues-Zaupa on or about 19 November 2009. The second being the supply of a prohibited drug, namely cocaine, on 15 February 2009 and the third being the supply of a prohibited drug on 9 January 2010, again the drug is cocaine.
The first offence is contrary to s.18(1)(b) and s.244 of the Crimes Act and attracts a maximum sentence of 25 years imprisonment. There is no standard non-parole period. The other two offences are contrary to s.25(1) of the Drug Misuse and Trafficking Act and attract a maximum penalty of 15 years and/or a fine of 2000 penalty units. Again, there is no standard non-parole period.
In addition, in sentencing for the last supply matter, namely the supply of a prohibited drug on 9 January 2010, I am asked to take into account two matters on a Form 1, each of which are for the offence of supply a prohibited drug, namely cocaine, contrary to s.25(1) of the Drug Misuse and Trafficking Act .
In sentencing on this matter I shall take those matters into account and in doing so shall apply the principles identified by the Court of Criminal Appeal in the Guideline Judgment as it relates to this process.
I should note that this last offence, namely the supply of a prohibited drug on 9 January 2010, was committed while the offender was on bail. That is an aggravating feature of this offence.
The offender has been in custody since 9 January 2010 and the sentences that I will impose will effectively start from that date. He has no criminal record of significance, save for a fairly poor driving record, which is of little consequence in determining the proper sentences to be imposed in these matters.
The offender is now 43. He was committed for sentence to this Court on 23 December 2010.
He was originally charged with a more serious offence than manslaughter and, in addition, he was charged with an additional count of murder relating to another young woman.
The form of the matters now before me are as a result of a negotiation between the offender and the Crown.
Under the provisions of the Criminal Case Conferencing Trial Act the offender is entitled to a 25% discount for his pleas and I will allow that in determining the proper sentence to be imposed in each case.
The facts are agreed and are as follows and I find them beyond reasonable doubt.
"Introduction and Charges
Prior to the conclusion of committal proceedings in the Local Court, Suresh Nair ("the offender") pleaded guilty to the following offences: -
1. Supply of cocaine to Victoria McIntyre on 15 February 2009.
2. Manslaughter of Suellen Dominguez on 19 November 2009.
3. Supply of 3.91 grams of cocaine on 9 January 2010.
The following offences are to be taken into account on a Form One: -
- Supply prohibited drug on 9 January 2010.
- Supply prohibited drug on 9 January 2010.
The offender is aged 42. At the time of his arrest, he was a neurosurgeon practising in Western Sydney. Since around 2004 his medical licence had been subject to a number of conditions as a result of his having self reported his problems with cocaine to the NSW Medical Board.
Supply of cocaine to Victoria McIntyre
On 14 February 2009, the offender arranged for two escorts to attend his premises. The two escorts were offered cocaine but declined to take any. After a period of time, around an hour, these two escorts left the premises.
A short time later two further escorts ('Emily'; and 'Juliette') attended the offender's premises. Prior to attending the offender's flat, the escorts were aware that they would be 'partying' with the offender which they knew might include providing sexual services and taking cocaine. Over approximately 8 to 10 hours, the offender and these escorts engaged in a variety of consensual sexual acts and voluntarily consumed a large quantity of cocaine. The cocaine was supplied by the offender, who was persistently offering the cocaine to the escorts and himself consuming large quantities. The cocaine was prepared by the offender and passed from one to the other and each consumed it in turn. For a period of time Emily lay down due to the effects of cocaine upon her. She was able to eventually get up and move around.
At around 11am on Sunday, 15 February 2009, another escort (Victoria McIntyre) attended the offender's premises. She was offered a 'line' of cocaine by the offender. She voluntarily took the cocaine. A short time later, Emily and Juliette left the premises to purchase 'sex toys' and to fill a prescription. They returned about 45 minutes later. When they spoke to the offender over the intercom he asked them to return a short time later. By the time of their return police and ambulance were in attendance.
At 11.55am the offender called "000" and told the operator that Victoria McIntyre had suffered from a fit or seizure and needed medical assistance. He administered first aid at the direction of the operator. He was still doing so when the ambulance arrived.
The offender told the ambulance officer "we were on the bed together and she had a seizure which stopped and she appeared to be ok. A little later on she collapsed and went unconscious and stopped breathing about 5 minutes ago. I performed CPR."
Victoria McIntyre passed away while in hospital around 12 hours after her admission. The offender knew this.
Manslaughter of Suellen Domingues-Zaupa (age 22)
On 19 November the offender made arrangements with an escort Carmen Hernandez Cardona (known as 'Catty') to attend his premises along with another escort arranged by Catty. It later transpired that the offender was seeking a 'party booking' which was known by Catty to include more than one escort and the consumption of alcohol and drugs (in particular, cocaine). The second escort was Suellen Domingues-Zaupa ("the victim") who Catty called immediately after her initial telephone call with the offender.
Catty arrived at around 3pm. The offender and Catty took cocaine, which the offender supplied, and which was prepared by the offender and then taken in turn by the offender and Catty.
By arrangement with Catty, the victim arrived at around 4.30pm. Over the next several hours the three participants engaged in consensual sexual acts and consumed a large quantity of cocaine provided by the offender, which after being prepared by the offender was taken in turn by him, Catty and the victim. The use of cocaine was voluntary.
At around 6.45pm, the victim started to speak incoherently. The precise order and timing of events is difficult to reconstruct due to the intoxication of both Catty and the offender. The following is based on Catty's account. The victim was having difficulty breathing. She lay on the bed, her whole body shaking with convulsions. The victim would stop shaking and then start shaking again. The offender told Catty that the victim was just too high and needed sleep. Catty was aware from an earlier conversation with the offender that he was a doctor. The offender placed a Xanax tablet into her mouth, along with some water. There were traces of this drug in her blood on post mortem examination. The victim became increasingly unwell and was making noises like she was choking. The seizures got worse and the victim went into cardiac arrest.
The offender did not call an ambulance. Both the offender and Catty were greatly affected by drugs. While the offender made attempts at administering first aid and the CPR those attempts failed.
Dr Tim Green, Emergency Department Director Royal Prince Alfred Hospital and a senior lecturer at Sydney University, provided an opinion that the treatment administered by the offender was inadequate. In particular, he said that the first thing that should be done is to call an ambulance. Further, he said that the oral administration of Xanax in the circumstances was not appropriate treatment.
The basis of the offender's legal liability for manslaughter is that the offender was grossly negligent. The victim was in attendance as an invitee, who had been contracted by Catty (on his behalf) to provide sexual services to the offender. In the time she was there the victim consumed a large quantity of cocaine, which was provided to her by the offender and which ultimately proved to be fatal. The offender ingested a large quantity of cocaine allowing himself to become very intoxicated and consequently diminishing his capacity to appreciate the condition of the invitees and act responsibly. When she became unwell the offender failed to provide adequate medical assistance, particularly by failing to call an ambulance. By his plea, the offender admits that this conduct substantially contributed to the death of the victim. The evidence of Dr Timothy Green at the committal hearing was that it was possible that the deceased's life could have been saved had an ambulance been called but that he could not say that it was probable.
The precise time of death cannot be determined.
The offender and Catty remained at the flat for some time. During that time Catty located the victim's telephone and deleted her details from it. Catty later left the scene shortly before 10pm. She returned to Melbourne on 21 November 2009. Two days later she was contacted by the police and asserted, falsely, that the deceased was fine when she left the apartment. She flew that day to Sydney however and spoke to police. She provided police with a statement (made under an inducement) in which she admitted to being in the apartment when the victim passed away.
The offender left the scene around 5.45am in company with a number of escorts. He was observed to be quite affected by drugs - one of the escorts said he was "out of it", his eyes were red and he wasn't saying much.
On 21 November 2009, colleagues of the offender became concerned that he had not come to work. Police attended his premises and when they entered they found the body of the deceased in his bedroom. A post mortem was conducted and the cause of death given as cocaine toxicity.
On 22 November 2009, by arrangement with his solicitor, the offender surrendered himself to police. A typed statement was provided to police.
On 25 November 2009, by arrangement with the police, the offender again attended the police station where he was charged with supplying cocaine and granted conditional bail. On 4 February 2010 he was charged with murder. On 22 December 2010, the prosecution accepted his plea to manslaughter.
Supplying Cocaine
The accused was released on bail following his arrest on 25 November 2009. As a condition of his bail he was not to consume illicit drugs or engage the services of an escort or prostitute.
In January 2010 whilst he was on bail for the offence of supplying cocaine in November 2009, the police conducted surveillance of the offender's rented apartment.
On 9 January 2010 police gained entry to the offender's premises. The offender was present with two escorts to whom he had supplied cocaine (the Form One offences). The offender and the escorts voluntarily consumed a quantity of cocaine. Police located 3.91 grams of cocaine in the offender's premise. The traffickable quantity of cocaine is 3 grams. The offender said to the police officers 'OK I know. I'm doing the wrong thing.'"
In addition to those facts, the offender gave evidence. Part of his evidence was that the cocaine that he supplied as charged in the two matters which are before me and the two matters which are on the Form 1, was in fact supplied to him in turn by agencies who facilitated or arranged for the services of the various escorts who in turn were supplied with that cocaine by the offender.
It would seem that the offender paid for a "party package" and paid for it by cash and credit card, which included the cost of the cocaine which was supplied by the agencies.
The offender did make it patently clear, however, in his evidence that neither Victoria McIntyre nor Suellen Domingues-Zaupa brought cocaine with her to his premises.
The offender does admit to supplying each of them with cocaine but said that the source was as he has described.
It was not suggested to him that he was wrong or telling lies in relation to this aspect of his evidence.
I find as fact that the cocaine supplied by the offender in each of the charges as it relates to the supply of that drug and each of the matters on the Form 1 was in fact supplied by the various agencies which from time to time facilitated the attendance of the escorts at his premises and to whom he supplied that drug.
Each of the offences is serious and each demand a significant full time custodial sentence. Nothing was said, nor could have been, to the contrary.
I turn to the circumstances of the manslaughter offence.
It is important to bear in mind the nature and extent of the offender's criminal culpability.
This court is not a court of morals but a court of law. Whatever approbation might flow to the offender from the circumstances of his crimes beyond the proper bases for his criminal liability for it are irrelevant.
My task is to sentence calmly and dispassionately free from bias, prejudice or emotion and according to law.
The circumstances in which manslaughter is committed are both wide and varied.
It is important to bear in mind what Gleeson CJ quoted in R v Edwards (1996) 90 ACrimR 510 at 517: -
Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system
The basis of this offender's liability put by the Crown and accepted by the offender is that he was grossly negligent.
That gross negligence was not to supply cocaine to the deceased. It was not consuming cocaine himself. It was not engaging in sexual activity with the deceased when each was intoxicated by cocaine.
What is relevant to his criminal culpability are the following factors: -
1. In consuming the amount of cocaine that he did he diminished his capacity to render assistance to one whose intoxication by cocaine substantially jeopardised her physical safety so as to endanger her life.
2. In supplying so much cocaine to the deceased for her consumption that it substantially jeopardised her physical safety so as to endanger her life.
3. That in each of the above he was aware of the very real risk of jeopardy to the physical safety of the deceased to the extent of her being in danger for her life because, amongst other things including his medical training, and of the events and outcome where Victoria McIntyre had died on 15 February 2009.
4. His failure to call an ambulance when it was clear that the deceased was seriously unwell displaying clear and obvious symptoms including convulsions and choking noises in the knowledge, amongst other things of his medical training, and of what had occurred on 15 February 2009 to Victoria McIntyre.
The fact that the accused was substantially intoxicated by the large quantity of cocaine he had consumed caused him, as I have found, to have a diminished capacity to appreciate the condition of Suellen and act responsibility.
Other subjective features of the manslaughter
At the same time it is relevant in demonstrating the depths to which the offender had fallen.
Suellen was dead. He left his flat. One of the escorts described him as being "out of it". Her body was not found until 21 November 2011. There does not seem to have been any attempt to disguise what had happened in the apartment. Amounts of cocaine were found, apparently in the open.
He seems to have abandoned any sense of responsibility to others or for that matter himself.
He walked away but by then Suellen was dead.
The tragedy in this matter is her death.
He is still alive. Although I believe he will be scarred by her death and the death of Victoria for the rest of his life that cannot be compared with those losses and the resounding impact they have had on others.
I have read Solange Pacheco Domingues' Victim Impact Statement. It was excused by the Crown as being perhaps extravagant in its language. I did not think it was.
Firstly, it is in translation and, secondly, people express their grief and the impact of the death of a child in such ways.
I found it a moving document. Suellen's family have my sympathy as does the family of Victoria and I shall give the statement the full weight the law allows.
Supply cocaine
There is no dispute that the offender supplied cocaine to the escorts who came to his home including Suellen and Victoria.
There is no suggestion by the Crown that the women did not voluntarily take the cocaine and the tendency of the evidence is that all of them anticipated the probability that cocaine would be taken with the offender.
Further, there is no suggestion that in supplying the cocaine as he did the offender was anticipating making money on it. He supplied free and freely.
I accept his evidence that he purchased the cocaine as part of a package from the escort agencies who engaged the escorts.
Both his use of cocaine and his liberal provision of it to others were hugely indulgent and designed to heighten his own self-gratification. That was his motive in committing these offences.
On the drug matters.
However, in the supply cases (including those on the From 1), I find that the danger to others is an aggravating feature even though ordinarily it may be seen as intrinsic to the nature of the crime.
In particular, the offence of supply on 9 January 2010 was in the knowledge of the sequence of events and the supply of cocaine which led to the death of Victoria McIntyre in February 2009 and that also led to the death of Suellen in November 2009.
I have regard to what was said in Ta & Nguyen [2011] NSWCCA 32 particularly at [26] which states:-
It has been established by a series of cases in this court that a factor should not be taken into account as an aggravating factor to which additional regard can be had in sentencing, if it is either an element of the offence for which the offender is being sentenced or an inherent characteristic of that kind of offence. See for example Elyard v R (2006) NSWCCA 43. A factor which is an inherent characteristic of the kind of offence for which the offender is being sentenced can be taken into account as an aggravating factor to which additional regard can be had, only if its nature or extent in the particular case is unusual"
Here I find that those dangers in the context of my findings are relevant and thus an aggravating feature of the supply offence on 9 January 2010.
Cocaine
The offender displayed a determined persistence in abusing cocaine. His use of cocaine was not constant. He binged. He was introduced to it in 2002.
In 2003 he sought assistance from Dr Jurd in relation to his drug use and self reported to the Medical Board in 2004.
Dr Westmore reported to the Board on 25 May 2004 (Exhibit 1) and noted that the offender reported as to the "binging" nature of his cocaine use then. Quite what was triggering his use of cocaine in that way then is unclear from Dr Westmore's report.
A regime was put in place by the Medical Board and he was allowed to continue in practice.
The offender said, and I accept, that his cocaine use was largely controlled until late 2008, early 2009, when he broke up with a woman, a fellow medical practitioner. They had planned to marry.
He thought his reaction to that was the behaviour in which he then indulged for the next 18 months. Frequent binge use of cocaine purchased from escort agencies to accompany usually more than one escort, all using cocaine. Even the death of Victoria did not stop him nor even the death of Suellen. He was arrested in relation to the last offence (and the two on the Form 1) in circumstances that were not dissimilar to those in which each of these young women had died. He was then on bail. The conditions of that bail were that he was not to consume cocaine and that he not engage the services of an escort. He did both.
His solicitor qualified Dr Rosemary Wilcox, psychiatrist. Her report is dated 27 June 2011 and is part of Exhibit 1.
The history she took included:-
In the latter part of 2003 he developed a pattern of calling escort agencies to arrange for girls to come to his house and the escorts provided cocaine. He said from then on all the cocaine that he obtained was through escort agencies.
This is at odds with his version in evidence and that given to Dr Westmore.
He told Dr Wilcox: -
He ceased his use of cocaine in March 2004 however relapsed in July 2004. at the time due to being on the IPP he was required to have random urine tests yet despite knowing the risk he was taking he still used cocaine. He rationalised his actions. He said he was not looking for cocaine but had been offered it in a social environment.
On a number of occasions when questioned about his continued use of cocaine while being aware of the considerable risks he was taking he mentioned that he had struggled with "two minds" over the past 10 years. One mind was the "rational mind" that knew that cocaine use was harmful and illegal and that he must not engage in the use of cocaine for his own self-preservation and that any use would be at considerable risk. However, on the other side he had an "irrational mind" that wanted to use cocaine because of the pleasurable effect particularly when used in a sexual context and he said on many occasions he made the decision to follow his irrational mind. Mr Nair said cocaine made him feel frisky and increased his capacity to have sex.
She noted that he apparently remained drug free from July 2004 until November 2008.
Dr Wilcox noted:-
Following the termination of his long term relationship he increased his prior behaviour of ringing escort agencies and the escorts were once again associated with the use of cocaine,. He acknowledged that he had a very high sex drive however said he was not preoccupied with sex and when he was at work he was totally focused on his work.
He indicated that his use of escorts towards the end of his relationship had contributed to the break up. He said he could now see that his girlfriend had been a key support person during his four years of abstinence and as a result he probably developed a false sense of security; in that he believed that because he was working and had a stable relationship he was therefore okay. When the relationship ended he said he did not appreciate how important she had been helping him maintain stability and there was a big gap in his life and he missed the companionship. Mr Nair believed that he was by nature shy and self-contained however he also acknowledged that he did not like being on his own and rang the escort agency when he felt lonely, bored or fed up.
When he resumed his use of cocaine around November 2008 the number of escorts that he arranged at any one time increased and he said that at his request the escort agencies sent up to four or five girls in a night and the girls came with cocaine. He had difficulty quantifying the amount of cocaine he estimated that it was about the weight of half a cigarette box. He told me that he never coerced any of the girls into having cocaine, but said that they would have been informed that they were expected to use cocaine while with him.
At page 5 the doctor related:-
In June 2009 he relapsed. He knew that he was taking a considerable risk and he knew that someone had died as the result of taking cocaine in his presence, yet despite this he made the decision to follow his irrational mind. At the time he had no girlfriend and was feeling lonely and isolated.
As a result of his relapse in June he decided he needed help he knew that his actions were "insane" and he wondered what he was doing.
And then:-
The Medical Board immediately suspended him and he was bailed to the Sydney Clinic. Despite all that he had been through when he was discharged from the Clinic he contacted an escort agency to arrange for cocaine and escorts.
On questioning Mr Nair did not believe that he deliberately flaunted authority. He said he did have a moral code in that there were things he would not do, such as he would not steal and would not assault anyone. He said he had been kind and generous to his patients. He recognised that his moral boundary had failed in two areas namely his continued use of cocaine and his use of escorts and that these moral boundaries were poorly defined and had been totally focused on pleasure seeking.
The doctor does not offer a diagnosis beyond: "Cocaine Abuse / Dependence".
To my mind that is inadequate and hardly explains not only why this man did what he did but why he persisted in identical behaviour since released from the Northside Clinic that he did it on bail.
This was not mere addiction to cocaine. Even Dr Wilcox does not suggest an addiction. The closest she gets is:-
... at times he verged on becoming dependent on cocaine.
Nor am I persuaded by the "bored or lonely" thesis.
In the end I am left with no cogent psychiatric explanation for his action. I conclude that he was driven by self-indulgence.
Extra Curial Punishment
The offender was brutally assaulted in his cell at the MRRC Silverwater on 17 February 2010. He had been in custody since 9 January 2010.
He had been charged with murder and manslaughter on 4 February 2010 and his cases had attracted wide and graphic publicity.
He was bashed unconscious. He suffered multiple facial fractures, including a fractured cheekbone and jaw and a couple of broken teeth. Most significantly he now has a permanent partial impairment of his vision in his left eye.
I am persuaded there is a clear correlation between his being charged with offences relating to the facts of the charges which bring him before this Court and this brutal attack which was to "punish him for these offences.
The nexus between the timing of the charges then laid against the offender; the extensive publicity that surrounded that fact; the notoriety of the nature of the charges and the facts surrounding them; the status of the offender and the absence of any other reason for the attack leads me to that conclusion.
The records from the Department of Corrective Services includes a note that he should have been on protection at the time of his assault.
He is entitled to have this assault taken into account as being an extra curial punishment of him. (see R v Allpass (1993) 72 ACrimR 561 at 566-567).
The detrimental consequences to the offender represent a "serious loss and detriment" to him. He now has a permanent impairment of his capacity to read and see and I shall take that matter favourably into account in regard to the sentences to be imposed upon him.
Conditions of Custody
He is not presently being held in protective custody but he maybe in the future (T.30).
I do not consider the evidence sufficient to allow any favourable consideration for the circumstances of his custody to be taken into account. (see R v Way (2004) 60 NSWLR 168 at [176]-[177].)
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Remorse and character
I find the offender is remorseful and accepts responsibility for his crimes. When addressing the death of Suellen he said at T.16:10 ff
I'm really saddened that two very young girls have died and been caught up in behaviour of mine. I, you know I'm very sorry that this has happened, I, the thing that strikes me the most in this case is that their deaths are very tragic, they were young and they've been basically deprived of living a life that most people can expect to do in our community which is to you know have a family and grow old and they wont have that opportunity any more and also the circumstances of their deaths were very sordid and that makes it very difficult for the family, but particularly for Sue-Ellen where her family are overseas, and you know it must be really hard for them, because, I mean, I've yet to sit down and provide them with an explanation or give them a direct apology and that's, you know without that process happening people get very angry and you can't, kind of, it really disturbs the grieving process and I just feel very sad for them, I mean they've lost a daughter and they will, they must be devastated and you know I can't think of any other word but a dreadful way to pass away and also with the amount of media coverage it doesn't help them come to terms with things as well, I'm just very sorry that this has happened.
It is hard to underestimate the fall of the prisoner.
Dr Teo, an eminent neurosurgeon, gave evidence. He said at T.8:39:-
I had nothing but good things to say about him, he's a fine person, fine character, good heart, peaceful sort of soul who, you know, cared very much for his patients and I thought was an excellent neurosurgeon.
Dr Teo admired his care for his patients - he saw that the offender regarded that as paramount, eschewing a detached attitude others display. He found him humble. His patients appreciated his caring nature.
Dr Teo's opinion is supported by the cogent references from patients of the offender.
I find this evidence powerful and at the same time difficult to reconcile with the man who committed these crimes where he essentially abandoned his sense of responsibility.
Such, though, are the contradictions in this profoundly sad case.
As noted prior to these crimes the offender is said to have been a person of good character.
Clearly, there were aspects of his character that met that description as is demonstrated by his referees.
However, it is also clear from the evidence that he has been taking cocaine since perhaps as early as 2000 and supplying it to others, namely escorts he hired through agencies. (See Dr Wilcox's report pages 3 and 4 and offender's evidence T.21-23)
Dr Jurd's report of 18 May 2009 (Part of Exhibit B)
Victoria McIntyre died on 15 or 16 February 2009.
I do not need to repeat the circumstances of her death.
Dr Jurd's letter was to the Health Care Complaints Commission. Dr Jurd was the offender's treating psychiatrist and had been for the previous 7 years.
He made no mention of what happened on 14 February 2009. The history he gave came from the offender.
Mr Nair must have know:-
a. that it was of the first order of relevance; and
b. that in all probability it would have led to the immediate suspension of his right to practice.
He did not report his resumption of cocaine use in November 2008 (as he did to Dr Wilcox).
Dr Jurd, no doubt relying on what he was told by the offender, reported to the Commission:-
The most recent stressor was in about September 2008 when his imminent marriage was cancelled. Around that time, Dr Nair woke from a bad night's sleep feeling well below his best. He made what seems to have been a good clinical decision. He decided to cancel an operating list. The subsequent s.66 inquiry and this HCCC investigation seem to me to be more a function of his workplace's inability to accept that even neurosurgeons may have life problems.
It is my belief that Dr Nair is in stable remission from cocaine and alcohol abuse and that he is fully fit to practise medicine. I further believe that matters came before the Medical Board that would have been more suited to a casual chat between colleagues ("Hey mate, you ought to have a back up to your mobile if you are on call for life threatening stuff") rather than s.66 inquiry.
The offender induced Dr Jurd, who was effectively not only his treating psychiatrist but also his advocate to the HCCC, to lie as to why he had cancelled a list, to lie as to his fitness to continue to practice as a neurosurgeon and to lie in telling them that the offender:-
... is in stable remission from cocaine and alcohol abuse and that he is fully fit to practice medicine.
Nothing could be further from the truth.
I do not accept the offender's explanation. (see T.28:4-39).
What he told Dr Jurd is consistent with my conclusion that at the time of these offences he was driven by selfishness and self-gratification.
The lies to Dr Jurd were to ensure a report by him to the Board which allowed him to continue to practice.
If he had told the truth to Dr Jurd in all probability matters would have come to a head.
In Ryan v The Queen (2001) 206 CLR 267 Mc Hugh J said at paragraphs 23:-
It is necessary to distinguish between the two logically distinct stages concerning the use of character in the sentencing process. First, it is necessary to determine whether the offender is of otherwise good character. When considering this issue, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Because that is so, many sentencing judges refer to the offender's "previous" or "otherwise" good character
And then at paragraph 25
Second, if the offender is of otherwise good character, it is necessary to determine the weight that must be given to that mitigating factor. If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes. The weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances.
Applying Ryan I will favourably take into account his good character but to a limited extent tempered as it is by the evidence to which I have referred.
Acceptance of responsibility for offences and remorse
As I have noted elsewhere in these reasons I accept his evidence in this regard. I find however that even though he is genuine, his remorse and acceptance is relatively recent as is demonstrated by Dr Wilcox's report and Exhibit 2.
It is hard to see how his asserted good character can wholly survive this evidence. I do conclude that in his professional capacity he has done much good.
Special Circumstances
I was invited to find special circumstances in this case. I do not, except for the limited purpose of preserving the sentencing ratio between the effective head sentence and the effective non-parole period.
Although this is his first time in goal there are no facts in these cases that are sufficiently special so as to vary the statutory ratio.
Supply 1 - but for 25% discount and taking into account other discounting factors, which I have identified, the sentence would have been 3 years, therefore the sentence is 2 years and 3 months.
Manslaughter - but for the plea and taking into account the discounting factors, which I have identified, the sentence would have been 6 years, therefore the sentence is 4 years and 6 months.
Supply 2 - but for the 25% discount and taking into account other discounting factors and the matters on the Form 1, the sentence would have been 5 years, therefore the sentence is 3 years and 9 months.
Sentence
Count 1 .
You are convicted. I sentence you to a term of imprisonment of 2 years and 3 months to commence on 9 January 2010 and expire on 8 April 2012
Count 3
You are convicted. I sentence you to a non-parole period of 2 years , 9 months and 23 days to commence on 9 October 2010 and expire on 31 July 2013 with a balance of imprisonment of 11 months and 8 days expiring on 8 July 2014. (I take into account the matters on the Form 1)
Count 2
You are convicted. I sentence you to a non-parole period of 2 years to commence on 1 May 2013 and expire on 30 April 2015 and a total sentence of 4 years and 6 months, expiring on 31 October 2017.
I find special circumstances being to preserve the ratio between the effective non-parole period and the effective total sentence. He will be eligible for release to parole on 30 April 2015.
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Decision last updated: 08 September 2011
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