AIDAN HERBERT v COMMISSIONER OF POLICE [2024] SASC 25

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE BURTON) MCCRM-23-000660 Appellant: AIDAN HERBERT Counsel: MR JOHN EDWARDS - Solicitor: DADDS JANDY LAWYERS Respondent: COMMISSIONER OF POLICE Counsel: MS ELLEN MACGREGOR - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 29/01/2024 File No/s: SCCRM-23-040229 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. HERBERT v POLICE [2024] SASC 25 Judgment of The Honourable Justice McDonald 1 March 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - SUBSTANCE ABUSE This is an appeal against the sentence imposed in the Magistrates Court following the appellant’s conviction of the offence of forging a prescription to obtain pharmaceutical medicines pursuant to s 30(1) of the Controlled Substances Act 1984 (SA). The Magistrate imposed a sentence of 6 months imprisonment to be reduced by 40% taking into account the appellant’s guilty plea. This was suspended upon the appellant entering into a bond of $1000 to be of good behaviour for 18 months. The appellant appeals this sentence on the basis that the Magistrate erred by imposing a period of imprisonment when other sentencing options were available. The respondent contends that, whilst the appeal should be allowed on the basis of a process error, the sentence should not be interfered with. Held, dismissing the appeal: 1. The learned sentencing Magistrate did not err in imposing a sentence of imprisonment for the offence. 2. The sentence imposed was not excessive and fell within the appropriate range of sentences for offences of this type. Controlled Substances Act 1984 (SA) s 30(1); Sentencing Act 2017 (SA) s 10(2)(a), s 10(2)(b), s 11(1)(f); Magistrates Court Act 1991 (SA) s 42; Joint Criminal Rules 2022 (SA) r 191.1, referred to. -- 1 of 19 -- House v King (1936) 55 CLR 499; Wittwer v Police [2004] SASC 226; R v Wilton (1981) 28 SASR 362; Lowndes v The Queen (1999) 195 CLR 665; R v Mark [2019] SASCFC 48 , applied. R v Dell (2016) 126 SASR 571, discussed. R v Monks (2019) 133 SASR 182; R v Wright (1997) 93 A Crim R 48; R v Yaldiz [1998] 2 VR 376; Gok v The Queen [2010] WASCA 185; Green v The Queen [2011] VSCA 311, considered. -- 2 of 19 -- HERBERT v POLICE [2024] SASC 25 Magistrates Appeal: Criminal McDONALD J. 1 On 5 October 2023 Aidan Herbert was sentenced to 3 months and 19 days imprisonment for the offence of forging a prescription to obtain pharmaceutical medicines in contravention of s 30(1) of the Controlled Substances Act 1984 (SA). The starting point was a sentence of 6 months imprisonment that was reduced by 40 percent to take into account Dr Herbert’s guilty plea. That sentence was suspended upon him entering into a bond in the amount of $1000 to be of good behaviour for 18 months. This is an appeal against that sentence. Grounds of Appeal 2 Dr Herbert relies on the following grounds of appeal.1 1. The sentence is manifestly excessive. 2. The learned sentencing magistrate erred by misapprehending and/or misapplying section 10(2) of the Sentencing Act 2017, specifically in relation to either or both: 2.1 limb (a), in that the seriousness of the offending was not such that the only penalty that could be justified was imprisonment; and/or 2.2 limb (b), in that a sentence of imprisonment was not required for the purpose of protecting the safety of the community (whether as individuals or in general). 3. The learned sentencing magistrate erred by misapprehending and/or misapplying the law in relation to the relevance of the appellant’s “mental condition” under s 11(1)(f) of the Sentencing Act 2017, including in relation to: 3.1 culpability, including in relation to the seriousness of the offending. 3.2 personal deterrence, including in the context of rehabilitation, risk of re-offending and the need for community protection. 3.3 general deterrence, including in the context of the need for community protection. 1 Appeal Grounds (FDN 2), Amended Grounds of Appeal (FDN 4). -- 3 of 19 -- [2024] SASC 25 McDonald J 2 4. The learned sentencing magistrate erred by failing to give adequate reasons for the sentence, in particular in relation to: 4.1 the basis for finding that imprisonment was required under s 10(2) of the Act. 4.2 the relevance of the mental condition of the appellant and how this was reflected in the sentence. 4.3 the basis for, meaning and relevance of her remarks about the offending compromising the systems of the safe and lawful provision of prescription medication and undermining the integrity of those systems and public faith in the medical profession. 3 Underlying each of these grounds is the complaint that the Magistrate erred in sentencing Dr Herbert to a term of imprisonment when other sentencing options were available. Principles on Appeal 4 This appeal is governed by s 42 of the Magistrates Court Act 1991 (SA) and Chapter 9, Part 3 of the Joint Criminal Rules (‘Rules’) 2022 (SA). Appeals from a Magistrate to a single Judge of the Supreme Court are by way of rehearing pursuant to r 191.1 of the Rules 2022 (SA). 5 In order to interfere with the exercise of a sentencing discretion, there must be a demonstrated error of the kind described in House v The King.2 The approach to be adopted was summarised by White J in Wittwer v Police:3 The approach of this Court on an appeal against a sentence imposed by a Magistrate is well established. The imposition of a sentence involves an exercise of judicial discretion. This Court interferes with the exercise of that discretion only when it is satisfied that the sentencing Magistrate has acted upon some wrong principle, or if it has allowed irrelevant considerations to influence it, or it has failed to have regard to a relevant consideration or alternatively, even though no precise error can be identified, the sentence is so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise the discretion properly: House v The King (1936) 55 CLR 499 at 505; Dinsdale v The Queen (2000) 202 CLR 321 at 324 – 325 [3] – [4]; Naera v Police (1995) 184 LSJS 328 at 329; Taylor v Hayes (1990) 53 SASR 252 at 291; Ware v Betts (1987) 134 LSJS 212 at 216; Wessling v Police (2004) 88 SASR 47 at 60. 6 The Court will not interfere merely because it would have exercised the sentencing discretion in a different way to the sentencing Magistrate.4 It is the appellant’s submission that the sentence imposed by the Magistrate was infected by both outcome and process error. The approach to be adopted by an appellate 2 (1936) 55 CLR 499. 3 [2004] SASC 226 at [16]. 4 R v Wilton (1981) 28 SASR 362 at 363; Lowndes v The Queen (1999) 195 CLR 665 at [15]. -- 4 of 19 -- [2024] SASC 25 McDonald J 3 court in relation to each type of error was conveniently summarised by Stanley J in R v Mark:5 A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer by Kourakis CJ, if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal. (Footnotes omitted) 7 In Lowndes v The Queen, the High Court observed that:6 … a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice. Concession made by the Director 8 At the outset of submissions counsel for the Director advised the Court that a process error had been identified in the sentence imposed by the Magistrate. The error was that the reduction that Dr Herbert was entitled to as a consequence of his guilty plea, was a maximum of 30%,7 and not 40% as calculated by the Magistrate. That error was clearly advantageous for Dr Herbert. The Director took the position that having identified a process error, the discretion has been enlivened to resentence Dr Herbert, however submitted that I should not interfere with what was otherwise an appropriate sentence and dismiss the appeal. The circumstances of the offence 9 At the relevant time Dr Herbert was working as a general practitioner at the Renmark Medical Clinic. 10 Although only charged with one offence, this was a representative count that encompassed criminal conduct that commenced on 27 September 2021, and ceased approximately 14 months later on 30 November 2022. Over that time Dr Herbert forged prescriptions in the names of his colleagues in order to obtain 5 [2019] SASCFC 48 at [18]. 6 (1999) 195 CLR 665 at [15]. 7 Dr Herbert entered his plea on 29 March 2023, consequently he fell to be sentenced under s 39(2)(b) of the Sentencing Act 2017 (SA) which allows for a maximum discount of 30%. -- 5 of 19 -- [2024] SASC 25 McDonald J 4 opioid prescription medication. He did so on 43 occasions although a number of the prescriptions contained up to 5 repeats. 11 Staff at the clinic became concerned about Dr Herbert’s mental health and general wellbeing towards the end of 2022. He was observed by a nurse to access medications kept in the clinic emergency bag and was also seen to be acting strangely in another doctor’s office. This resulted in one of the practice partners reviewing the electronic clinical records and discovering that those records showed that other doctors at the practice appeared to have written Dr Herbert prescriptions for opioid medication on numerous occasions. 12 Two of the partners in the practice met with Dr Herbert to raise concerns with him about accessing the computers of other doctors to prescribe himself medication. 13 Upon being confronted, Dr Herbert admitted to using the other doctors’ computers and writing himself prescriptions without their authority. This conversation was recorded and that recording was subsequently provided to the police. 14 Mr Herbert’s employment was terminated. The Appellant’s mental health 15 To assist in sentencing submissions a psychiatric report was obtained from Dr Lorraine Lim. In that report Dr Lim sets out Dr Herbert’s mental health history. 16 From that report it would appear that Dr Herbert’s mental health issues first became apparent in 2008 when he was diagnosed with a major depressive episode. At the time he was in his third year of medical school and for the first half of the year was completing a placement in Mount Gambier. This episode resulted in Dr Herbert taking most of the academic year off from his studies. Through a combination of medication and therapy Dr Herbert’s mental health stabilised in early 2009. 17 In late 2009, Dr Herbert graduated from Medical School. He completed an internship at the Lyell McEwin Hospital before he was employed as a Resident Medical Officer at the same hospital. 18 In about 2013, Dr Herbert commenced the Australian General Practice Training Program with the Royal College of General Practitioners. 19 Between 2013 and 2018 Dr Herbert completed placements at various medical practices. In 2019 Dr Herbert experienced a further bout of depression which appears to have been triggered by him being advised that because of changes to the rules he would be required to restart his GP training. This resulted in Dr Herbert taking the rest of 2019 off to recuperate. -- 6 of 19 -- [2024] SASC 25 McDonald J 5 20 In late 2019 Dr Herbert returned to his former employment at the Lyell McEwin Hospital where he continued until 2021. He then relocated to the Riverland where he took up his position as a GP Registrar at the Renmark Medical Clinic. 21 Between 2008 and 2022 Dr Herbert continued to take anti-depressant medication prescribed at a dose that directly correlated with his mental health at the relevant time. 22 Once in Renmark, Dr Herbert’s mental health again deteriorated. He started to self-medicate using opioid based drugs. In his interview with Dr Lim, Dr Herbert said that although he was unable to pinpoint a specific trigger in respect of his worsening mental health, he believed that his lack of social network and loneliness were significant contributing factors. 23 It was in this context that Dr Herbert commenced forging prescriptions. He told Dr Lim that he knew from past experiences of taking opioid analgesics that were previously available over the counter, that these drugs would have an anxiolytic and calming effect on his mood. The sale of the over the counter medication for opioids in pharmacies had become significantly restricted over the years which was the reason that he commenced forging prescriptions. 24 With the passage of time, Dr Herbert’s dependence on opioids progressively worsened and he became addicted to them. In his interview with Dr Lim, he explained:8 Towards the end, there was a lot of anxiety, even when I had the medications, about not being able to get another script if I ran out. It was constantly on my mind. 25 On the basis of this history, Dr Lim diagnosed Dr Herbert as suffering from dysthymia (otherwise known as persistent depressive disorder) and an opioid use disorder. 26 Dr Lim provided the following summary of her view about the interconnection between Dr Herbert’s mental health, the circumstances that he found himself in and his offending.9 In my opinion, there is a direct nexus between Dr Herbert’s psychological disorders of opioid dependency and dysthymia, the latter of which was a condition that he was likely to have been suffering from since about 2007, and his current offence before the Court. In addition, the psychosocial challenges that he had encountered in the context of living in a country town, such as isolation and loneliness, were likely to have also given rise to his reactive anxiety whilst exacerbating his depressed mood. It was against that background, that he had reportedly turned to prescription opioid abuse to ‘self-medicate’ his mental health difficulties, but it appeared that what was meant as a short-term, and clearly short- 8 Report of Dr Lim 12 July 2023 at 9. 9 Report of Dr Lim 12 July 2023 at 10. -- 7 of 19 -- [2024] SASC 25 McDonald J 6 sighted coping strategy on his part, had progressively developed into a significant addiction to prescription opioids that he had subsequently struggled to manage and/or to stop. Ground 3 – The Relevance of the appellant’s mental condition 27 Given the Director’s concession that a process error has occurred and it is open to this Court to exercise its sentencing discretion afresh, Mr Edwards, who appeared for Dr Herbert focussed his submissions on Ground 3. He described this ground as being “at the root of our complaint” and also relevant to a consideration of the other grounds. For that reason I will adopt a similar approach and commence with Ground 3. Legal Principles – Impact of mental impairment 28 In R v Monks, Doyle J (as he then was) undertook a detailed and comprehensive analysis of the relevance of a defendant’s mental impairment in the sentencing process. In the course of doing so His Honour provided a useful summary of the matters that should be taken into account in considering the impact of a defendant’s mental condition on a sentence: 10 In determining the relevance of the impairment of an offender’s mental functioning in a particular case it will be necessary to consider matters including (i) the nature and severity of the impairment; (ii) the extent to which the impairment was operating on the offender’s mental functioning at the time of the offending and hence can be said to have influenced or caused the offender to commit the offence and/or to have affected the offender’s capacity to appreciate the wrongfulness and gravity of the offending; (iii) whether the impairment was the product of an underlying mental illness or disability, self-induced intoxication, or some combination of such factors; (iv) if the product of self-induced intoxication, whether it reflected an addiction, and if so the circumstances of that addiction; and (v) the ability of the offender to reduce or overcome the significance of any underlying condition or addiction, and the steps taken or able to be taken by the offender in that regard. 29 Doyle J went on to identify the stages at which the mental impairment may inform the sentencing process. These were in assessing the moral culpability of a defendant, in determining the weight to be placed on general deterrence, in determining the need for personal deterrence and in considering the hardship of a sentence of imprisonment. 30 Counsel for Dr Herbert submitted that in the circumstances of this case Dr Herbert’s psychological disorders impacted on the questions of culpability and the need for the sentence to take into account considerations of general deterrence and personal deterrence. 31 In R v Monks Doyle J discussed the circumstances in which the existence of some form of mental impairment may affect a defendant’s degree of moral 10 (2019) 133 SASR 182 at [35]. -- 8 of 19 -- [2024] SASC 25 McDonald J 7 culpability for the offending as opposed to their legal responsibility. His Honour said:11 It may do so, for example, by impairing the offender’s ability to exercise appropriate judgment, to maintain self-control and resist impulsive behaviour, to think and reason clearly, and to make calm and rational choices. It may influence or cause the offender to act in a disinhibited or aggressive manner. It may obscure the offender’s intent to commit the offence, or negate any suggestion of deliberation or premeditation. It may impair the offender’s ability to appreciate the wrongfulness, gravity and implications of their offending. Assuming a ‘realistic connection’ or ‘causal link’ between the impairment and the offending, such that the impairment is more than merely part of the background to the offending, this may reduce the offender’s moral culpability or blameworthiness for their offending in one or more of the ways set out above. Where this is so, it may reduce the need for denunciation and punishment in the sentence to be imposed, and hence also the length or severity of the sentence necessary to arrive at a punishment that is proportionate, or ‘just in all the circumstances.’ (Footnotes Omitted) 32 Doyle J then considered the manner in which the existence of an impairment of a defendant’s mental functioning may affect the sentencing Judge’s consideration of general deterrence. His Honour made the observation that it is well recognised that a defendant whose offending is a consequence of a mental impairment may not be an appropriate medium for demonstrating principles of general deterrence. In determining this question, a sentencing Court needs to direct its attention to how the particular condition affected the mental functioning of a defendant in the particular circumstances. In R v Wright,12 Hunt CJ considered the rational underpinning this approach to sentencing someone with a mental impairment: …the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding. The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case. But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great. 33 Therefore it does not follow that even in circumstances in which a defendant suffers a serious psychiatric illness there is no role for general deterrence in fashioning an appropriate sentence. In R v Yaldiz,13 Winneke ACJ explained the approach to be adopted: 11 (2019) 133 SASR 182 at [37]-[38]. 12 (1997) 93 A Crim R 48 at 51. 13 [1998] 2 VR 376 at 383. -- 9 of 19 -- [2024] SASC 25 McDonald J 8 It is not appropriate to simply fasten on to the words “recognised psychiatric disorder” and then, without reference to the symptoms and consequences of that disorder, to contend that purposes of general deterrence have no part to play in the sentencing process. Whether in the particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused. 34 In Gok v The Queen,14 the Western Australian Court of Appeal emphasised that the need for a sentence to take into account the principle of general deterrence when a defendant is suffering from a mental impairment will vary depending upon the facts of the case: The degree to which general deterrence is moderated very much depends on the facts of the case. At one end of the spectrum stands the case where the offender is so afflicted by his or her mental impairment or impairments that general deterrence plays virtually no part. At the other end are cases where the moderation of general deterrence is small because the offender knows what he or she is doing and appreciates the gravity of his or her actions. 35 The final manner in which Dr Herbert contends that his psychological disorders are relevant to the sentencing process is in respect of the extent to which considerations of personal deterrence apply. 36 The rationale for more limited weight to be placed on personal deterrence in cases in which a defendant has a mental impairment was explained by Maxwell P in Green v The Queen:15 The principle of specific deterrence is premised on the assumption that an appropriate punishment will operate to deter an offender from repeating the same or similar conduct in the future. Whether and to what extent that assumption is applicable to a person whose mental functioning was impaired at the time of the offending will depend on the circumstances. As Steytler J explained in Payne v The Queen [2002] WASCA 186 at [43]: [I]n a case in which the mental illness contributed to the commission of the offence, the importance of personal deterrence may, depending upon the nature and effect of the illness, be lessened. The whole notion of personal deterrence assumes some rational analysis or reasoning in the course of comparing the likely gains from the crime against the prospect, and likely severity, of punishment. Where the illness affects the person’s ability to make that very analysis, there is no justification for affording the consideration of personal deterrence the measure of significance as it might have in the case of a well person, although there may then be a greater need to protect the public. 37 It follows that any consideration of the effect of an impairment on the sentencing Court’s consideration of personal deterrence is necessarily interconnected with considerations of the offender’s character and prospects of rehabilitation. 38 In Monks at the end of His Honour’s analysis of the manner in which an offender’s mental impairment may impact on the sentencing exercise, Doyle J 14 [2010] WASCA 185 at [60]. 15 [2011] VSCA 311 at [28]. -- 10 of 19 -- [2024] SASC 25 McDonald J 9 went on to make some observations about the limitations in attempting to provide a comprehensive inventory of the circumstances in which and to what extent an offender’s impairment is relevant. 39 Doyle J cautioned:16 However, it is important to bear in mind the complex, multi-factorial and ultimately intuitive and individualised nature of the sentencing process. Indeed, it can be readily seen from the above that generalisations about the significance of an offender’s mental impairment are of limited value in determining its significance in any given case. Its significance will often be complex and nuanced, and exist at multiple stages in the sentencing process. It is often misleadingly simplistic to speak in terms of the impairment being a mitigatory (or aggravating) factor. Not only is it often artificial to attempt to divide all sentencing factors into those that mitigate and those that aggravated, but also, in the case of an offender’s mental impairment, it may point in different directions at different stages of the sentencing process. Given the nature of the instinctive synthesis required in arriving at an appropriate sentence, and the fact that the existence of a mental impairment potentially operates at multiple stages of the process and in combination with other considerations at each of those stages, it is generally neither accurate nor appropriate to speak in terms of its net effect upon the sentence imposed. As Gleeson CJ said in R v Engert, in considering the potential relevance of a mental condition to the sentencing exercise: A moment’s consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance…Again in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender. It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise. (Footnotes Omitted) The approach adopted by the Magistrate to the appellant’s mental illness 40 In her reasons the Magistrate accepted that Dr Herbert suffers from mental health issues. In the sentencing remarks, the Magistrate set out the history and evolution of Dr Herbert’s psychological conditions:17 16 (2019) 133 SASR 182 at [51] – [54]. 17 Sentencing Remarks 5 October 2023 p 2-3. -- 11 of 19 -- [2024] SASC 25 McDonald J 10 While on medical placement in 3rd year Mount Gambier you were first diagnosed with a major depressive episode in 2008 having been diagnosed with major depression in 2007 and then prescribed a mood stabiliser and antidepressant. In 2018 a setback on your career path towards general practice saw you spiral into depression and take time out of medical practice to recover. Your re-entry into the general practice pathway saw you starting to work as a GP registrar at Renmark. You currently take antidepressants and a mood stabiliser and report ongoing symptoms consistent with your diagnosis of Persistent Depressive Disorder and Opioid Use Disorder which Dr Lim says you were suffering at the time of the offending. You have struggled with social isolation since moving to Remark and turned to opioid medication for calming of your mood. You had used over the counter opioids in the past and turned to forging prescriptions to self-medicate for anxiety and depression when access became highly regulated in recent years. Continued use of opioids saw you develop a compulsion to keep using and facilitating that use by forging prescriptions. Your addiction to opioids directly contributed to your continued offending. You are seeing psychiatrist Dr Van des Bos for management of your mental health issues and medication regulation as well as having drug counselling via an online program. Dr Lim reports the shock of the events of your dismissal and arrest has been enough of a stimulus for you to remain abstinent from opioids since that time. Dr Lim describes your risk of relapse and reoffending to be low at this time but that is the subject to any future destabilisation in mental health functioning or substance relapse. Dr Lim outlines recommended courses of psychiatric treatment and psychological counselling which would reduce the risk of relapse. Those steps are an early work in progress at this stage. (Emphasis Added) 41 I accept that the Magistrate found that there was a direct link between Dr Herbert’s opioid addiction and his offending. 42 There is only one passage in the reasons that refers to the use that the Magistrate made of Mr Herbert’s mental illness in fixing a sentence. The Magistrate said:18 I consider the likelihood of you reoffending to be low given the impact that this offending has had on you and will continue to have on you, your career and your ability to practice. You will undoubtedly face disciplinary proceedings arising out of your conduct. The contribution of your mental health issues and context of addiction means that personal deterrence is important in formulating an appropriate sentence. 43 With respect to the Magistrate it is not clear what that passage means. Although the Magistrate found that the risk of Mr Herbert reoffending was low (and had previously found that his risk of relapse into drug use was also low) it is not clear what is meant by “personal deterrence is important” in that context. 18 Sentencing Remarks 5 October 2023 p 3. -- 12 of 19 -- [2024] SASC 25 McDonald J 11 The relevance of Dr Herbert’s mental health issues 44 It is to state the obvious to say that Dr Herbert’s mental health issues were relevant to his offending in that they provided the motive for him to commit the crime. The more nuanced and complex question is the manner in which those issues could be factored into the fashioning of an appropriate sentence. It is not clear, from the sentencing remarks, how Dr Herbert’s dysthymia and opioid dependency factored into the sentencing process. 45 In summary it was the appellant’s argument that the Magistrate, in reliance upon the opinion of Dr Lim found that Dr Herbert’s dysthymia and opioid use disorder were causative of his offending. It follows that it was incumbent upon the Magistrate to consider how that then impacted upon issues of culpability and personal and general deterrence. 46 The difficulty with that submission is that the Magistrate did not make such a finding. Whilst the Magistrate accepted the diagnosis of Dr Lim, the extent of any causal nexus that she found was that Dr Herbert’s “addiction to opioids directly contributed” to his continued offending. On its face without further elucidation that could mean no more than the opioid addiction provided a motive for the offending. 47 Given the error that has been identified, which enlivens the discretion to resentence and the limited reasons provided by the Magistrate, the real issue on this appeal has become given Dr Herbert’s psychological disorders, can ground 1 or 2 be established. 48 For reasons that I will come to, in the circumstances of this appeal grounds 1 and 2 to some extent overlap. 49 It is therefore necessary to first of all consider the role of Dr Herbert’s psychological disorders in his offending behaviour. 50 Dr Herbert reported to Dr Lim that he had felt increasingly depressed and anxious following his move to Renmark. Although he was compliant with his antidepressant regime, Dr Herbert noticed that the medication was no longer having the same therapeutic effect on his moods at that time. Dr Lim opined that this was likely to be due to Dr Herbert having developed an increased tolerance to the medication. 51 It was in this context that Dr Herbert made the decision to self-medicate by prescribing himself opioids. It is of significance that the opioid addiction only developed later after he commenced forging prescriptions and taking the opioids. It was only as Dr Herbert’s dependence on opioids progressively worsened that he -- 13 of 19 -- [2024] SASC 25 McDonald J 12 became increasingly addicted to them and at some point the addiction turned into what he perceived to be a compulsion.19 52 It follows that whilst it appears that Dr Herbert was suffering from depression when he commenced offending, he had not yet developed an addiction. 53 There is clearly a nexus between the dysthymia and subsequent opioid disorder. The depression motivated Dr Herbert to make a choice to commit a crime to alleviate his symptoms as opposed to pursuing a more orthodox solution such as arranging for a change in his prescribed medication or engaging with a different psychiatrist. It cannot be said that Dr Herbert’s depression was such that it reduced his capacity, the wrongfulness of his conduct, or the gravity of his offending. Rather, it resulted in him “throwing caution to the wind” and embarking on an extended period of criminal offending. 54 It is a significant consideration in assessing the impact of Dr Herbert’s psychological disorders over this period of time that he continued to work as a general practitioner. He was continuing to exercise his professional and personal judgment on a regular basis. I do not doubt that the lure of the opioids increased as his addiction developed, however this is very different to a scenario to one in which an impairment was operating on the mental functioning of a defendant in such a way that it influenced or caused the commission of the offence. Whilst Dr Herbert’s mental illness may form the background to the offending and is an explanation for how it spiralled out of control, it does not reduce Dr Herbert’s moral culpability or blame worthiness for embarking on this course. 55 In such circumstances Dr Herbert’s psychological disorders do not significantly reduce his criminal culpability, nor the need for personal and general deterrence. If anything, the fact that Dr Herbert was in a limited class of privileged people who as a result of his medical degree had been entrusted to work in an environment that offers access to drugs not available to the public at large, increases the need for general deterrence. In particular to other medical professionals who may find themselves in the same or similar situation. Ground 2 – Was the Magistrate in error in sentencing Dr Herbert to a term of imprisonment? 56 Section 10(2) of the Sentencing Act 2017 (SA) sets out the circumstances in which a Court may sentence an offender to a term of imprisonment. s 10 – General principles of sentencing (1) Subject to this Act or any other Act, in determining a sentence for an offence, a court must apply (although not to the exclusion of any other relevant principle) the common law concepts reflected in the following principles: 19 Report of Dr Lim 12 July 2023 at 9. -- 14 of 19 -- [2024] SASC 25 McDonald J 13 (a) proportionality; (b) parity; (c) totality; (d) the rule that a defendant may not be sentenced on the basis of having committed an offence in respect of which the defendant was not convicted. (2) Subject to this Act or any other Act, a court must not impose a sentence of imprisonment on a defendant unless the court decides that – (a) the serious of the offence is such that the only penalty that can be justified is imprisonment; or (b) it is required for the purpose of protecting the safety of the community (whether as individuals or in general). 57 Dr Herbert contends that it is implicit that in determining to sentence him to imprisonment, the Magistrate erred in finding the criteria in s 10(2) satisfied. In particular, the Magistrate erred in finding that the seriousness of the offending was such that the only justifiable penalty was imprisonment and/or that imprisonment was necessary for the protection of the community. Counsel for Dr Herbert suggested that an alternative appropriate penalty was available to the Magistrate namely, a good behaviour bond. It was submitted that such a sentence was open particularly in circumstances in which Mr Herbert will also be the subject of proceedings instituted by the Medical Board. On that argument it follows that the tests in s 10(2) could not be satisfied. 58 In her sentencing remarks the Magistrate made reference to considering the application of s 10(2) and said:20 A sentence of imprisonment is not to be imposed unless the court decides that the seriousness of the offence is such that the only penalty that can be justified is imprisonment or it is required for the purpose of protecting the safety of the community. I have come to that view. 59 The Magistrate did not indicate whether it was s 10(2)(a), s 10(2)(b) or both limbs of the test that had been satisfied. 60 The Director contended that it was open for the Magistrate to find that the seriousness of the offence and/or the need to protect the community warranted a term of imprisonment. 61 Whilst there can be an overlap in the application of the two limbs of the test, it is instructive to consider them separately. 20 Sentencing Remarks 5 October 2023 p 3-4. -- 15 of 19 -- [2024] SASC 25 McDonald J 14 62 I will deal firstly with whether it was open for the Magistrate to conclude that a term of imprisonment was required for the purpose of protecting the community. 63 There has been no suggestion that Dr Herbert poses any direct risk to the safety of the community. The Director submitted that it was however open to determine that the risk posed by Dr Herbert was indirect and that risk either alone or coupled with the seriousness of the offending was a sufficient basis upon which to find that the test in s 10(2) had been satisfied. 64 In support of that position, counsel for the Director contended that the Court ought not give the phrase “required for the protection of the community (whether as individuals or in general)” a narrow construction. The Director relied upon the remarks of Doyle J in R v Dell,21 (dealing with the same phrase in the context of home detention orders) to the effect that there is no need to limit the meaning of the concept of the safety of the community and that a significant threat of reoffending will often of itself present a significant threat. While the risk of reoffending by violent offenders, for example, will present the most obvious and direct threat, the risk of reoffending by those convicted of other offences, (including in that case the trafficking of illegal drugs) also presents a significant threat to the safety of the community. 65 Whilst I accept that the concept of public or community safety should be considered broadly, particularly given it is the primary purpose of the Sentencing Act,22 on the facts of this case the risk posed by Dr Herbert would be insufficient of itself to warrant the imposition of a term of imprisonment. That does not mean that it does not have a role to play in determining whether the test in s 10(2) has been satisfied, however, Dr Herbert’s offending was such that the real issue upon which the question of imprisonment turns is the seriousness of the offence, such that the only penalty justified is imprisonment. 66 The Magistrate correctly identified those aspects of Dr Herbert’s offending that made it serious. These were: the duration over which the offending continued, the number of occasions upon which Dr Herbert forged prescriptions and the fact that he only ceased offending when found out by colleagues. 67 In determining the seriousness of the offence, the Magistrate also took into account the breach of trust that was involved in Dr Herbert’s conduct and the potential for offending of this type to undermine “the integrity of those systems (for the lawful provision of prescription medication) and public faith in the medical profession.” Put another way it was a feature of aggravation of this offending that Dr Herbert had been entrusted with access to medication and the means of procuring that medication and had then abused that position of trust. Such conduct clearly has the potential to undermine public confidence in the medical profession. 21 (2016) 126 SASR 571 at 582. 22 Sentencing Act 2017 (SA) s 3. -- 16 of 19 -- [2024] SASC 25 McDonald J 15 68 In my view the Magistrate did not err in finding that the requirement in s 10(2)(a) of the Sentencing Act was satisfied. The seriousness of Dr Herbert’s conduct was such as to enliven the discretion to impose a sentence of imprisonment. Ground 1 – Was the sentence manifestly excessive? 69 Although Dr Herbert takes issue with the decision to impose a term of imprisonment, in determining whether the sentence was manifestly excessive, he does not challenge the length of the sentence. 70 Whilst s 10(2) creates a threshold that must be met before a sentence of imprisonment can be imposed, it remains for the Court to determine whether in all of the circumstances the sentencing discretion should be exercised to impose such a sentence. It is at this stage in the process that the personal circumstances of an offender are a relevant consideration. 71 Counsel for Dr Herbert submitted that there were a number of matters which, when considered in combination, establish that the imposition of a term of imprisonment was manifestly excessive. These were matters both personal to Dr Herbert and relevant to the nature of the offending. 72 It was submitted that considerable weight should be placed on Dr Herbert’s lack of prior antecedents, his admissions when confronted and his contrition and remorse for his offending. It was suggested that this evidence of good character coupled with the explanation for how he came to commit the offence are indicative of the unlikelihood that Dr Herbert will reoffend and consequently that a sentence of imprisonment was unnecessary. 73 There were an additional two considerations relied upon by counsel for Dr Herbert in support of the submission that he is unlikely to reoffend. These were that he had broken the cycle of opioid addiction and that he was also the subject of disciplinary proceedings. As to the former, in her report Dr Lim spoke positively about Dr Herbert’s prospects of rehabilitation particularly because he appears to overcome his addiction to opioids. She said: 23 The emotional shock of being confronted by the GPs from the Renmark Medical Clinic, his subsequent arrest in respect to the current offending, and his loss of access to prescription opioids after he was suspended from medical practice, appeared to have been sufficient triggers to enable him to break the cycle of his opioid abuse and addiction, and to maintain his abstinence to this day. 74 Dr Lim expressed the view that the experience that Dr Herbert has been through has resulted in a level of insight. She explained:24 In my opinion, Dr Herbert has recognised the deleterious impact that his inappropriate use of prescription opioids to ‘self-medicate’ his depressive and anxiety symptom had caused 23 Report of Dr Lim 12 July 2023 at 11. 24 Report of Dr Lim 12 July 2023 at 11. -- 17 of 19 -- [2024] SASC 25 McDonald J 16 on his social and occupational functioning, as well as his psychological health. He appears to have develop insight into his dysfunctional coping strategies during the time period encompassing his current offending. Notably, his apparent development of good insight is reinforced by the protective mechanisms that he has independently implemented over the past several months, such as engagement with psychiatric and psychological supports, and his participation in substance use counselling in order to prevent another drug relapse. I believe that Dr Herbert’s risk of recidivism in a similar manner is therefore ‘Low’ at the time of this report writing. However, his risk levels may increase in the future, in the context of another destabilisation of his mental health functioning, and/or following another opioid relapse. 75 Dr Herbert also relied on the fact that disciplinary proceedings are to be undertaken by the medical board once the criminal charges have been dealt with. Although there is no evidence of this before me, counsel for Dr Herbert said the following in written submissions:25 We also submit that it is relevant that, as was pointed in oral submissions, the appellant was in fact already subject to proceedings by the Medical Board of Australia (“the Board”), and the Board had already accepted an undertaking not to practise offered by the Appellant, which meant that the appellant would effectively need to persuade the board that he is fit and proper to return to practise. Further, that there had already been and would be further real and severe consequences for the appellant, including as a result of the disciplinary proceedings. Also, that the disciplinary proceedings would address issues in relation to the protection of the integrity and reputation of the medical profession. 76 I accept this is accurate and it accords with common sense that Dr Herbert’s conduct would warrant disciplinary proceedings and some form of sanction. 77 Although not resiling from the seriousness of the offending, Dr Herbert’s counsel suggested that there are a number of features of Dr Herbert’s conduct that made this offence less serious than other offences of its type. It was submitted that although his conduct was dishonest, it did not result in a loss or a direct consequence to another person. Further, he did not obtain any financial benefit beyond the ability to feed his increasing addiction. It was submitted that the nature of the drugs was also a relevant factor in that these were opioid drugs that Dr Herbert had previously purchased over the counter. 78 In summary it was submitted that in all of the circumstances the sentence imposed by the Magistrate was manifestly excessive and that this Court should exercise its discretion to impose a sentence that does not include a term of imprisonment. 79 I am not persuaded by this argument. Whilst there is much that can be said about the personal circumstances of Dr Herbert that excite sympathy, those matters have to be weighed against the gravity of the offending. The fact that it involved so many separate acts over 14 months make it a serious offence of its type. Whilst I accept that as time progressed, Dr Herbert’s addiction developed and his powers 25 (FDN 5) Applicant’s Written Submissions at 4-5. -- 18 of 19 -- [2024] SASC 25 McDonald J 17 to resist temptation weakened, that cannot be said about the earlier offending. Between each episode he had time to pause, reflect and desist. He did not. 80 I agree with the Magistrate that in all of the circumstances the only appropriate sentence is one of imprisonment. The sentence imposed balances those factors that were favourable to Dr Herbert, including his lack of criminal history and contrition with the need for a deterrent sentence that reflects the seriousness of the offence. The sentence imposed by the Magistrate fell within the appropriate range of sentences for offences of this type. 81 Given the manner in which this appeal has evolved there is no need to consider ground 4. I decline to interfere with the sentence. I dismiss the appeal. -- 19 of 19 --