The Queen v TP
[2002] ACTSC 125
•12 December 2002
THE QUEEN v TP [2002] ACTSC 125 (12 December 2002)
CATCHWORDS
CRIMINAL LAW – sentencing – offence of supplying traffickable quantity of MDMA to another – drug supplied as favour to a friend – no commercial gain involved – defendant otherwise of outstanding character – offence committed whilst suffering from major depressive illness – plea of guilty – genuine remorse – assistance to authorities.
Crimes Act 1900, ss 344, 345, 357, 402
Parnis v R (1993) 126 ALR 423
No. SCC 41 of 2002
Judge: Crispin ACJ
Supreme Court of the ACT
Date: 12 December 2002
IN THE SUPREME COURT OF THE )
) No. SCC 41 of 2002
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
TP
ORDER
Judge: Crispin ACJ
Date: 12 December 2002
Place: Canberra
THE COURT ORDERS THAT:
The defendant be convicted of the offence charged.
The defendant be released without sentence being passed upon him upon giving security by recognisance, himself in the sum of $1,000 to be of good behaviour for a period of three years.
The defendant has pleaded guilty to one count of supplying a traffickable quantity of a prohibited substance, namely 3, 4 – methylenedioxy-n, alpha-dimethylphenylethylamine (MDMA) to another person on 20 December 2001. In essence, it is alleged that he supplied 39 tablets containing MDMA, more commonly known as “ecstasy”, to a friend for consumption at a party. The case is an unusual one if only because of the character of the defendant.
At the time of the offence he was 39 years old, had no previous convictions and had been a person of exemplary conduct.
He had been an outstanding athlete, having represented Australia as a long distance runner as a schoolboy and both New South Wales and the ACT as an adult. He had hoped to compete in the trials leading to selection to represent Australia in the Marathon at the 2000 Olympic Games and the evidence established that his level of ability was such that he almost certainly would have succeeded in gaining entry to the trials had it not been for injuries to his knees requiring major surgery in 1998 and 1999.
He had also been an outstanding scholar, having obtained an Honours degree in Science followed by a PhD in Quantitative Genetics and, apparently, a higher Doctorate.
Furthermore he had not been born with the proverbial silver spoon in his mouth. His successes seem to have been the product of hard work and determination. He began working as an attendant at his parents’ service station at the age of twelve and worked in the hospitality industry whilst studying at university.
Upon completing his academic qualifications he embarked upon a career in health, initially working in the John Curtin School of Medical Research and then in the Physiology laboratory at the Australian Institute of Sport. For some time he also worked for a company operated by Mr Robert de Castella and continues to provide advice to the “Smartstart to Life” programme conducted by Mr de Castella which is concerned with addressing issues of obesity and other health problems in school children. He became a research fellow with the Institute of Health and Research in January 1996. He presently works for the World Health Organisation in Geneva administering the global introduction of the STEPS programme which targets non-communicable diseases, especially in third world countries.
There was an extremely impressive body of testimonials attesting to the help and encouragement he had provided to others and to his excellent character and reputation.
In short, it is abundantly clear that, but for the offence to which he has pleaded guilty, he has been an outstanding Australian.
How then could he have come to commit such an offence?
I suspect that the answer to this question is not entirely clear even to the defendant himself but there were plainly a number of psychological factors which may have contributed to his ill-considered decision.
It is a sad truism that even the most fundamentally decent people are not wholly immune from human weaknesses. Despite his evident successes and apparent confidence, Dr Fleming, a clinical psychologist, expressed the opinion that the defendant’s self esteem was quite fragile and that he was prone to periods of self- criticism and self-doubt. He was particularly sensitive to slights or oversights by other people. In childhood he had found it difficult to make friends and appears to have spent most of his life alone. He had been estranged from his father who had subsequently committed suicide at the age of fifty. He suffered from depression, suicidal ideation and on one occasion engaged in self-mutilation. He also appeared to have had a history of involvement in intense and volatile relationships and to have been preoccupied with consistent fears of being abandoned or rejected by others.
These fears and his earlier experiences of emotional isolation may have left him particularly vulnerable to the emotional impact of a series of events which led to him suffer a major depressive disorder. First, his long standing relationship with his partner broke up. She had obviously been extremely important to him and, although he had apparently been aware that the relationship had been under strain, her departure clearly caused him acute distress. By late 1999 he had also been obliged to confront the unpalatable truth that, despite the operations on his knees and the years of determined training, he would not be able to regain the health and fitness required to compete at the Olympic trials and that his athletic career was effectively over. The importance of the latter point may not be immediately appreciated by those with little experience of elite or sub-elite athletes but there was evidence before me that the abrupt termination of such a promising career is, of itself, often sufficient to produce depressive reactions of such intensity that psychiatric intervention is required. In the present case, many of the defendant’s friends were also athletes and much of his social interaction had occurred during and after training sessions. He became physically and emotionally withdrawn. His earlier experiences including his isolation as a child and the tragic death of his father may have contributed to his psychological condition but, whatever the causes, there is no reason to doubt the validity of Dr Fleming’s expert opinion that he had suffered a major depressive disorder aggravated by complicated grief reactions.
It was in this context that he first began to use ecstasy, apparently in an attempt to relieve his depression. He sought help from Dr Saboisky, a psychiatrist, in early 2000 and for a time gained some relief from the medication prescribed for him. Unfortunately, this was not sustained. His condition began to regress when it became apparent that his ex partner would not provide the support he felt he needed and became much worse when she began to see another person. He explained that: “I was suicidal then and it impacted upon everything then. I continued to see Dr Saboisky but the suicidal feelings lasted until the summer when I just caned myself with drugs.”
He gradually began to recover and sought to forge a new life, with social activities unrelated to athletics. He reduced his drug usage substantially with his consumption of ecstasy beginning to wane from about mid 2001 though he used it from time to time during the latter part of that year, apparently to help him relax when he went out. Some of his friends also used ecstasy and other so-called recreational drugs including the person to whom he ultimately supplied the 39 ecstasy tablets forming the subject of the offence.
He explained his involvement in this offence in the following terms:
[The friend] and I are old friends from track and field and we had partied together and he knew I could get ecstasy. He asked me if I would get some for him as there was a party in Melbourne for a friend of ours who was leaving to work in the US. I purchased them and put them in the mail and sent them to him. It was just for a group of friends. It wasn’t a money making venture. It was a group of friends partying and someone had to organise it and I was the goose.
[The friend] is a larger than life, gregarious guy that you get captivated by. I’m the kind of person who wants to help people and in some misguided way you think you are helping people. He also used to say, “mate people (the police) aren’t interested in people like us”. I had an idea that the police weren’t really interested in us and I suppose you feel some kind of security that this is okay. I was incredibly naïve to this and had come out of 15 years of a closeted world of track and field and family and hadn’t been out to nightclubs. He is the sort of guy who engages you. He is a larger than life character with a huge ego.
In other circumstances I might have been sceptical of such an explanation but I accept that the background and emotional state of this defendant might have made him amenable to this request for a favour by an old friend who had obviously remained supportive of him during his illness and whom he would obviously have wanted to help. Dr Fleming said that when tested a few months later, the defendant appeared uncertain about major life issues, had little sense of direction or purpose and to be impulsive and was prone to behaviour likely to prove self harmful or self destructive. She also said that he may have been at increased risk of self mutilation or suicide. I accept that his psychological condition may have deteriorated due to his arrest but think it is likely that these attributes were present to some degree when he acceded to his friend’s request. Feelings of uncertainty, fear of further rejection, gratitude, loyalty and a misplaced desire to help may all have contributed to his decision. The confidence of his friend coupled with the fact that he was a police officer apparently able to assure him that the police were not concerned about incidents of this kind may also have assuaged any uncertainty he might otherwise have had about the propriety of what he was being asked to do.
The Crown was critical of the defendant for failing to consider the effect which the ecstasy tablets may have had on their users and submitted, in effect, that his failure to do so demonstrated a significant flaw in his character. Whilst I have considered the submission, I think there are at least two more likely explanations for this apparent failure. First, perceptions as to the impact of particular drugs vary. Many people conscientiously believe that drugs such as ecstasy do not pose substantial health risks if used responsibly. The very use of the description, “recreational” may reflect widespread perceptions that, like alcohol, the use of such drugs assists people to relax and enjoy themselves without encountering any serious problems such as the risk of overdose or dependency. Whilst perhaps acknowledging its illegality, such people may feel that there is simply no reason to anticipate that the supply of ecstasy may have adverse effects on recipients. The defendant was a scientist whose career had been devoted to health issues but his views about the likely impact of the use of ecstasy were not explored in evidence. Secondly, it may not occur to people who are acutely depressed that they should critically appraise the implications of acceding to requests by friends whom they may feel are better equipped emotionally to consider the implications of their own behaviour. In any event, I do not accept that impressive evidence of the defendant’s good character given by people who have known him for years should be discounted because of a single act of thoughtlessness committed during the course of a major depressive illness.
The Crown also submitted that the use of pseudonyms in the course of two telephone calls covertly recorded by the police suggested significant criminality. The defendant and his friend had used a number of terms including “champers”, “champagne”, “Charles” or “Charlie” to refer to cocaine and had similarly used terms “red wine” and “Jack” or “Jill” to refer to ecstasy. Arrangements had also been made for the drugs to be forwarded in a “Postpak” addressed to “Mrs Walker”. I agree that these discussions are sufficient to excite some suspicion. However, despite the multiplicity of expressions used to refer to cocaine, the Crown did not suggest that the defendant had ever supplied cocaine to his friend or to anyone else and his express denial of having done so was not challenged in cross-examination. It was not disputed that both men were drug users and in these circumstances the use of colloquial expressions as a means of referring to prohibited drugs which they presumably obtained illegally from third parties may be quite understandable. I would not be willing to infer from the use of this terminology alone that the defendant and his friend were involved in a criminal enterprise extending beyond that forming the subject of the charge. The fact that the parcel was addressed to a presumably non-existent Mrs Walker would certainly support an inference that they had known that the transaction was illegal but that was candidly admitted by the defendant. Mr Everson also pointed out that s 344 of the Crimes Act 1900 expressly provides that the Court may not increase the severity of a sentence that would be otherwise imposed upon a person due to allegations of uncharged offences which had not been admitted in accordance with s 357. Whatever the effect of this provision, the defendant must clearly be sentenced for the offence he has admitted committing.
In sentencing offenders for any offences involving the supply of prohibited drugs to others, courts must have due regard to the need for general deterrence and be careful to avoid creating a false impression that drug dealing may not be treated as a grave offence or that it might be excused or condoned. However, the relevant offences are defined in broad terms which may encompass a wide range of behaviour. At one extreme an offender may be a professional dealer who makes an enormous income by unconscionably preying upon the weaknesses of people who are drug dependent or otherwise vulnerable. At the other extreme there may be cases in which a person obtains just enough of a prohibited drug for himself and a friend in a manner akin to a customer going to the bar to buy drinks for himself and another person. Whilst each may be technically guilty of the same offence it is important to identify the precise nature of the transaction and assess the gravity of the offence thereby committed.
In the present case, as the learned Crown prosecutor pointed out, the offence involves an additional element that the quantity of drugs supplied must be of a “traffickable quantity” which in the case of drugs of this nature is half of one gram. It is common ground that the quantity of drug contained within the 39 tablets supplied by the defendant exceeded that amount. That fact does not raise any presumption that the defendant had actually been trafficking in drugs by supplying them to others for commercial gain. Indeed, that has not been suggested. What the defendant did was to supply thirty-nine tablets to a friend who contacted him and asked him if he could obtain some ecstasy for use at a party to be held in honour of a mutual friend. The evidence did not reveal whether he had been reimbursed for the expenditure he incurred in doing this favour and there was certainly no evidence to suggest that he had sought to profit from it. He was not, in my opinion, somebody who could properly be described as a drug dealer. In fact, his conduct was not unlike that of a person who is asked to buy a crate of beer for a friend’s party. It nonetheless involved the commission of a serious offence but it does seem to have been at the bottom of the range of severity for offences of this nature.
Mr Everson submitted that I could be satisfied that, having regard to the character, antecedents and mental condition of the defendant and the extenuating circumstances under which the offence was committed, it would be expedient to release the defendant on probation and that I could do so in accordance with the provisions of s 402 of the Crimes Act without proceeding to a conviction.
Mr Everson placed considerable weight on the nature and extent of the defendant’s psychiatric illness citing the decision in Parnis v R (1993) 126 ALR 423 where a Full Court of the Federal Court of Australia said at 424:
In Scognamiglio [(1991) 56 A Crim R 81] the New South Wales Court of Criminal Appeal considered the part that the element of general deterrent should play in the sentencing process when the offender suffers from a mental disorder or abnormality. The court adopted observations that had been made by Young CJ when delivering the judgment of the Victorian Court of Criminal Appeal in R v Mooney (21 June 1978, Young CJ, Lush and Jenkinson JJ, unreported) that (Scognamilio at p 86):
In sentencing generally it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other. But in the case of an offender suffering from a mental disorder or abnormality general deterrence is a factor which should often be given very little weight . . . general deterrence should very often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.
In R v Letteri (CCA(NSW), 18 March 1992, unreported) the authorities were again considered and discussed, Badgery-Parker J with whom Gleeson CJ and Sheller JA agreed, stated the principle in the following terms (at p 14):
The principle is clear enough. It is correctly stated as follows: that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise.
We agree with these statements of principle, although we should perhaps comment that we would not limit them only to cases where the intellectual handicap may be characterised as “severe”.
The Crown submitted that these principles had no application to the present case because the evidence did not establish that the defendant’s decision to supply the tablets to his friend was the product of a deranged mind or was otherwise influenced by his psychiatric condition. However, a person’s decisions may be influenced by underlying psychological conditions and/or emotional turmoil even if their cognitive and reasoning capacities are substantially unimpaired. In the present case, the evidence reveals that the defendant had throughout his life been a person of impeccably good character. He had turned to drugs at a time of personal crisis no doubt because he was unable to otherwise cope with the pain of a severe depressive illness. It is true that by the time he supplied the ecstasy tablets to his friend he had begun to recover and that his personal use of ecstasy had substantially tapered off and may have ceased altogether. Despite some progress, however, I am satisfied that he still suffered from the depressive illness and that it may have substantially reduced his capacity to appreciate the implications of the requested favour and to respond in an appropriately responsible manner.
There are other important matters that must also be taken into account in his favour. He has made full and frank admissions, promptly pleaded guilty and is genuinely remorseful. Whilst he obviously attempted to control his feelings whilst giving evidence, he broke down when asked how he had felt having to tell a step-son what he had done and was obliged to relive the shame of that experience. I am confident that he will not offend again. Furthermore, he has already given the authorities considerable assistance and I accept his assurance that he will provide further assistance if required. Most notably, of course, he has otherwise been a person of impeccable character who has struggled to rise above his own significant emotional difficulties and has done much to help others.
In all the circumstances, I accept that the case is one warranting exceptional leniency. However, that conclusion alone does not wholly resolve the difficult question of what orders should be made. I do not accept the Crown’s submission that a sentence of imprisonment should be imposed even if immediately suspended. Section 345 of the Crimes Act provides that a court shall not pass a sentence of imprisonment on any person for an offence against a law of the Territory unless satisfied that no other penalty is appropriate in all the circumstances of the case. In the exceptional circumstances of this case I am unable to be so satisfied. On the contrary, I accept Mr Everson’s submission that it is appropriate to release the defendant on probation. On the other hand, I am unable to accept his submission that I should not proceed to a conviction. It is true that a conviction may have some impact upon his ability to travel to some countries in the course of his present duties but that is by no means clear and, in any event, whilst the offence may be at the bottom of the range for offences of this kind it was nonetheless too serious to permit the course suggested.
The defendant will be convicted but released upon a recognisance to be of good behaviour for a period of three years.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Chief Justice Crispin.
Associate:
Date: 12 December 2002
Counsel for the Crown: Mr C Todd
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Mr C Everson
Solicitor for the defendant: Maliganis Edwards Johnson
Date of hearing: 10 December 2002
Date of judgment: 12 December 2002
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