R v Wilhelm [2010] NSWSC 378

New South Wales Supreme Court

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 cannot sentence him for any other offence that he may have committed in relation to either Mrs Brimble or in relation to the drug. In particular, I am not sentencing the offender for the consequences of his supply of the drug to Mrs Brimble. That material must be put to one side and concentration must be on the nature of the supply of the drug for which he has pleaded guilty and for which he must be sentenced. 7 The offence of supply, when charged on indictment, as this charge is, would normally carry a maximum penalty of 15 years imprisonment. However, a supply of this nature would never be dealt with on indictment except in the very exceptional circumstances of this particular case. That is because a supply of this nature would never be so serious as to warrant prosecution in the District Court or Supreme Court and would never warrant any consideration of the maximum penalty for the offence when prosecuted on indictment. In fact, it is almost unknown for a charge of supply of drugs to be prosecuted in this Court. 8 The reason why the offender is before this Court and not before a Magistrate is because he was charged after a coronial inquiry with an ex officio indictment alleging both that he unlawfully killed Mrs Brimble and that he supplied her with the drug GHB. The history of the matter is that the offender has always pleaded not guilty to both the supply of the drug and bringing about the death of Mrs Brimble. 9 It is also history that he recently attempted to plead guilty to an offence in relation to the effect of the drug on Mrs Brimble. That plea was allowed to be withdrawn because in my view he had not committed the offence to which he had pleaded guilty. As I have made perfectly clear, Mrs Brimble was voluntarily consuming the drug, even though she did so under the influence of alcohol and therefore in no way was the offender responsible for the effect of the drug upon Mrs Brimble. No more needs to be said about it. 10 If this matter were dealt with, as it normally would, before the Magistrate, the maximum penalty is one of two years imprisonment. Depending upon whether the quantity of the drug is a small quantity or where it is over a small quantity, that affects the fine that might be imposed upon the offender. 11 This is an unusual supply offence to have been prosecuted. The reason for that is because almost invariably an offence of supply that results in a charge before a court is a supply for profit. The police would have observed the offence take place or the supply was to an under-cover police officer or something of that nature. 12 It is in my experience rare to have what I might call a social supply offence before the Court. The reason for that is because both the person supplying the drug and the person receiving and administering the drug are committing offences. It was an offence for Mrs Brimble to consume the drug just as it was an offence for the offender to supply it to her. In those circumstances it seems unlikely that persons involved in that activity are going to bring the matter before the authorities. 13 Therefore, on the scale of offences of supply it must be on the very lowest rung. I cannot think of a supply offence which would be less serious than that committed by the offender in relation to Mrs Brimble. 14 The statistics for offences dealt with in the Local Court, in relation to ecstasy, which is not the same drug but something akin to it, show that very few offenders received a prison sentence for a single offence of supply. Of 37 people who fell into that category only two received gaol sentences and one can only imagine whether that was because of their criminal records or the nature of the supply. The largest percentage of persons in that category received a s 9 bond, that is, they were placed on a good behaviour bond and provided that they did not re-offend no action would be taken in respect of the offence. 15 The offender has a very limited criminal record. He was fined for an offence in 2001 that can be disregarded as being irrelevant; it had nothing to do with the use of drugs. Of more concern is that in 2005 he was charged with what was in effect cultivation of cannabis but that offence has to be seen in the somewhat unusual legislation that I understand exists in South Australia in relation to the use of cannabis. That State takes a different approach to that drug than other States do. The only matter of concern is that the offender was involved in another drug offence whilst under the cloud, if I may say so, of this matter. However, that penalty, because he was not convicted, does not seem to me to be of any great significance in determining what I should do with him in respect of this supply. 16 A large amount of material has been placed before me really to indicate that substantially the offender is a person of good behaviour and of good reputation, apart from the reputation that has been destroyed by the allegations made against him and the reporting of those allegations in the media. This is not meant to criticise the media, it is not for me to sit in judgment of the media or their behaviour in respect of this matter. But as I have already indicated in this Court, there was a degree of hysteria which surrounded the allegations in respect of the death of Mrs Brimble which was brought about by rumours and mistakes or misunderstandings in relation to the events of the particular night and they do not need to be revisited for the purposes of sentencing the offender. The relevance, however, is the effect this has had upon the offender. 17 I myself am aware of much of the publicity and it would be impossible for any adult in this State not to be aware of it. There have been some suggestions at times of callousness in respect of this offender and others in respect of the death of Mrs Brimble. In respect of one person it would be justified and again I do not sit in judgment of that person. But in respect of this offender such an allegation is not justified. As soon as he discovered that Mrs Brimble was unconscious he tried to assist her. This is part of the reason why the Crown case for manslaughter failed. More than that, there was evidence before the Court during the trial and now before me of the reaction of the offender once he had sobered up and once he was aware of the real situation and what had happened to Mrs Brimble. 18 There was admitted into evidence at the time of the trial and admitted into evidence before me in the present proceedings a statement by a counsellor who was on board at the time of the death of Mrs Brimble. She makes it quite clear, in very impressive terms, the extraordinary effect that the death of Mrs Brimble had upon the offender, who was distraught and unable to comprehend the effect of what had occurred by what, to him, was a fairly minor incident in supplying the drug to Mrs Brimble and having intercourse with her. But that remorse and reaction has continued over the years. 19 There are before me a number of psychiatric reports which indicate that the offender has, over a long period of time, suffered from severe mental illness as a result of the allegations against him, the publicity of them and the ramifications of what he has done. Again because I am sentencing him for the offence of supply, it is unnecessary to go into those matters in any detail. However, nobody should have any doubt that Mr Wilhelm has suffered grievously as a result of what occurred on that particular night. 20 He has, through a period of years, been subject to acute mental illness as a result of depression and anxiety, not simply for himself and the predicament he found himself in but because of the reaction it has had on him, his family and the Brimble family, as a result, as I have said, what would have been seen by him as an insignificant incident that occurred on this cruise boat. 21 I mention these matters only because it is a significant punishment that he has already suffered. The Court takes into account, as it is able to do, what is called extra-curial punishment, that is, punishment that is inflicted upon an offender otherwise than by a court of law. There are many instances of this sort of factor being taken into account in sentencing. 22 In this case the offender has been subject to an enormous amount of public derision that has stigmatised him and others as persons of bad character that has led to death threats being sent to him by members of the community so whipped up have they been by the reporting of the incident. 23 This, unfortunately, is not unusual. The Court of Criminal Appeal in the case of Allpass took into account the effect that publicity of the offence and the sentence imposed upon the offender had upon members of the community who had acted as vigilantes in threatening Mr Allpass, a man of some senility, and his wife and damage to their home. 24 So here I am entitled to take into account not only issues of public humiliation of the offender but also the consequences of that upon him and his mental health. I do not think it is an exaggeration to say that his life has been destroyed. His marriage has broken up, he has lost his home, he has had to move interstate to find work. 25 He has had to come to this State to face a criminal trial. The first trial was funded by himself privately such that he now is eligible for Legal Aid, so lacking in finances is he in order to defend himself. 26 Any reasonable person in the community would see that this punishment exceeds in any way, shape or form the criminality of the supply to Mrs Brimble in the social context of the drug that he himself was taking. 27 In particular, the public humiliation that has gone on for so many years for Mr Wilhelm can now be seen against the actual charge for which he is being sentenced, that is supply of a drug to a consenting adult who asked him to give it to her. Such a matter would hardly rate mention in any newspaper. Such a matter would hardly be the subject of any public concern, interest or derision. 28 It is, unfortunately, no doubt an incident that occurs frequently within the community to youngish people who are having a good time in social situations. May this be a lesson to any such persons that they know the consequences of what seems to be harmless and innocent but is criminal activity of supplying a person with a drug of such nature. 29 Mr Wilhelm will, I am quite sure, be dissuaded from ever involving himself in such conduct again, such were the consequences of this particular night and the way it has affected his whole life since then. 30 Deterrence is an important part of sentencing, particularly when the sentence of the offender will probably receive a degree of media interest. Therefore, he is a suitable case for general deterrence because so very frequently the Court imposes deterrent sentences upon people where that deterrence is of a theoretical nature rather than of a real effect. 31 But surely the consequences for Mr Wilhelm and what he has been through over the years must indicate to people of a like mind in the community that they may bear the overall consequences for their actions in relation to the use and supply of what are some times referred to as party drugs. 32 GHB is a dangerous drug, as are others such as ecstasy and those drugs that have been proscribed under the Act. Why are they proscribed is because they are dangerous as Mr Wilhelm will now understand until his dying day. 33 There is in my view no need to impose any further punishment on Mr Wilhelm. No punishment that I could give would be anything like the punishment that he has suffered over the years as a result of the activity of this night. 34 The Crown does not suggest that I should do anything more than place him on a good behaviour bond. That is, of course, clearly common sense. Again, if one strips away all of the consequences of this activity it seems to be an indicator of the very lowest criminality of the offence of supply that could be imagined. 35 I have been asked by defence counsel to dismiss that charge under s 10. I do not intend to do that, mainly because I think that might send a different message to members of the community. 36 It seems to me that taking into account everything now that has happened to Mr Wilhelm, the proper way to deal with the matter is to deal with it under s 10A of the Crimes (Sentencing Procedure) Act. That seems to me to be a section that has recently been added to the armoury of the sentencing court in such a case where the Court indicates that the charge was deserving of a conviction but one where it is deserving of no other punishment in the circumstances of the particular case. 37 I just want to make it clear, as I hope I have done, the limited criminality for which Mr Wilhelm is being sentenced and the severity of the extra-curial punishment that he has suffered as a result of what occurred on this particular night and the remorse that he has shown constantly from the very day after the death of Mrs Brimble, for the consequences of his conduct which he could in no way have foreseen even if he had been sober. 38 In those circumstances the offender is convicted under s 10A of the Crimes (Sentencing Procedure) Act. I impose no further penalty. 39 Mr Wilhelm, finally it has come to an end and you can get on, hopefully, with the rest of your life as best as you are able. **********