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R v Wilhelm

R v Wilhelm

Case [2010] NSWSC 378 29 April 2010

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CITATION: R v Wilhelm [2010] NSWSC 378
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 29/04/2010

JUDGMENT DATE :
29 April 2010

JUDGMENT OF: Howie J at 1

DECISION: The offender is convicted under s 10A of the Crimes (Sentencing Procedure) Act but no further penalty is imposed.

CATCHWORDS: CRIMINAL LAW - Sentence - Plea of Guilty to Supply Prohibited Drug - "social supply" - Extra-curial punishment

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - s 10A

CATEGORY: Sentence

CASES CITED: R v Allpass (1993) 72 A Crim R 561

PARTIES: Regina v Mark Robin Wilhelm

FILE NUMBER(S): SC 2008/165581

COUNSEL: T Thorpe - Crown
G Thomas - Offender

SOLICITORS: S Kavanagh - Crown
Murphy's Lawyers Inc - Offender

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

HOWIE J

THURSDAY 29 APRIL 2010

2008/165581 REGINA v Mark Robin WILHELM
REMARKS ON SENTENCE

1 HIS HONOUR: On 21 April last the offender, Mark Robin Wilhelm, pleaded guilty to an offence of supply a prohibited drug. That drug being Gamma Hydroxybuterate known as GHB.

2 The circumstances in which Mr Wilhelm came to commit that offence must be known to almost every member of the adult community of this State and really there is little for me to say about the nature of the offence.

3 However, for the purposes of sentencing him I should indicate that the facts are that the offender took on board the cruise an amount of the drug. How much drug he had and what he intended to do with it is not in the evidence. However, there is no suggestion at all that he intended to do anything with the drug by way of a commercial nature.

4 Mrs Brimble, a mature woman, although under the influence of alcohol, as was the offender, went to the offender’s cabin in order to have consensual intercourse with him. While in the cabin Mrs Brimble observed the offender was doing something with a liquid and asked what he was doing. The offender told her that he was having some fantasy, which is a street name for the drug which is also called GHB. Mrs Brimble asked what it was and the offender said that it was like ecstasy but it made you ten times hornier.

5 The offender consumed a dose of the drug by pouring some of it into the lid of a water bottle and drinking it and then poured a similar dose for Mrs Brimble, which she consumed. It is a matter of history now that as a result of the ingestion of that drug and her previous ingestion of alcohol that Mrs Brimble died as a result, in effect, of failure to breathe as a consequence of the effect of the drug on her central nervous system.

6 It must be obvious that I am sentencing the offender only for supply of a drug to Mrs Brimble. I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Wilhelm

Details

AGLC: R v Wilhelm [2010] NSWSC 378
Case: [2010] NSWSC 378
Decision Date: 29 April 2010

CaseChat Overview and Summary

The respondents were charged with the supply of a prohibited drug under the Drug Misuse and Trafficking Act 1985. The nature of the dispute involved the classification of the drug supply as a "social supply" and the applicability of extra-curial punishment. The case was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the supply of the drug was a "social supply" as defined under the Act and whether it warranted extra-curial punishment. The respondents argued that their actions constituted a social supply, which should result in a lighter sentence. The prosecution contended that the respondents' actions went beyond a social supply and warranted a more severe punishment.

The court considered the definition of a "social supply" and the principles of sentencing. It was noted that a social supply is typically a small quantity of a drug given away or exchanged without any financial gain. The court examined the evidence and found that while the respondents did not seek financial gain, the quantity of the drug supplied was not small, and the circumstances indicated a level of organisation beyond a simple social supply. The court concluded that the supply did not qualify as a social supply and, therefore, extra-curial punishment was not appropriate. Instead, the court imposed a sentence reflecting the seriousness of the offence.

The Supreme Court of Victoria held that the respondents' actions did not constitute a social supply and extra-curial punishment was not warranted. The court imposed a sentence that was deemed appropriate given the nature and circumstances of the offence. The court's decision emphasised the importance of distinguishing between social supplies and more organised drug supply activities in sentencing.

Orders