Peters v The Queen

[2013] VSCA 222

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0047

JAMES PETERS
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, OSBORN JA and HARGRAVE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 August 2013
DATE OF JUDGMENT:	16 August 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 222
JUDGMENT APPEALED FROM:	R v Peters [2013] VSC 93 (T Forrest J)

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CRIMINAL LAW — Appeal — Sentence — Negligently causing serious injury — 55 counts — 55 victims — 14 years’ imprisonment — Non-parole period 10 years— Offender was medical practitioner who infected patients with Hepatitis C — Breach of trust — Offender addicted to narcotics — Appropriateness of orders for cumulation where multiple victims — Totality — Whether sentence disproportionate to total criminality — Stage at which offender became aware of injury irrelevant — No breach of principle of totality — Not manifestly excessive — Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Dickinson SC	Slades & Parsons
For the Respondent	Mr G Silbert QC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

1. The applicant, James Peters, pleaded guilty to 55 charges of negligently causing serious injury.  He was sentenced to five years’ imprisonment on each of those charges.  The sentencing judge, T Forrest J, ordered that there be cumulated, on the base sentence of five years on Count 1, two months’ imprisonment for each of the subsequent 54 charges.  That produced a total effective sentence of 14 years.  A non‑parole period of ten years was fixed.

1. Dr Peters now seeks leave to appeal against that sentence.  For reasons which follow, I consider that none of the grounds advanced is reasonably arguable and I would therefore refuse leave to appeal.

1. The circumstances of the offending are clearly described in his Honour’s careful reasons.  Those reasons are publicly available and it is unnecessary for the purposes of this application to repeat what his Honour said about the circumstances.  It is necessary, however, to set out the following passage from his Honour’s reasons, which deals with the particular characteristics of the offending and the degree of culpable negligence involved:

The offending

On 55 occasions you injected yourself with Fentanyl using the same syringe that was subsequently used to supply Fentanyl to your patients.  The prosecution summary, amended on this aspect by your counsel, reads as follows:

As a medical practitioner and specialist anaesthetist he well knew the risks of transmission by injecting himself with Fentanyl and proceeding to use the syringe for his patients.

I accept that you would remove a Fentanyl syringe from the theatre, take it to a private place, attach a needle and inject yourself.  On the 55 occasions that are the subject of these proceedings, you must have used the same syringe on your patients.  There is simply no other explanation for their infection. 

Your counsel maintained, no doubt upon instructions, that you would intend to substitute the used syringe with a clean syringe either with another drug or an inert substance.  Mr Dickinson submitted that you did not know that the same syringe was used on any of the 55 relevant occasions.  I expressed some incredulity at this proposition which I retain.  It is, however, unnecessary for me to resolve that.

By your plea of guilty, you admit that on 55 occasions you were culpably negligent.  Your conduct fell so greatly short of the standard of care expected of the reasonable anaesthetist and involved such a high risk of serious injury that punishment under the criminal law is merited.  Put simply, the reasonable anaesthetist does not inject himself with a powerful narcotic substance just prior to surgery and he does not, whilst in a narcotically altered mental state, use the same syringe to anaesthetise his patients.  If the reasonable anaesthetist suffers from a transmittable illness such as Hepatitis C, he at least advises the Medical Board, his supervisors and his co-workers.  I consider your conduct to be truly reprehensible and I view your moral culpability in relation to each offence as very high.  This was not a single transitory madness with 55 dreadful consequences.  You had been addicted for many years, you knew you had Hepatitis C, and you knew how it could be transmitted to others.  You adopted a practice of stealing that drug from your employer, and in the process exposed your patients to great risk, that risk becoming a reality on 55 occasions.  You breached the great trust that every patient places in his or her treating doctor. As I have said a few moments ago, your addiction provides an explanation for the criminal negligence you exhibited over 17 months and on 55 occasions.  It does nothing to excuse it.[1]

[1]R v Peters [2013] VSC 93, [8]–[10] (‘Reasons’).

1. The first point argued by senior counsel for the applicant effectively embraced three of the four grounds of appeal.  These three grounds were in the following terms:

Ground 1:  The individual sentences, the total effective sentence and the non-parole period are manifestly excessive.

Ground 2:  The Learned Sentencing Judge erred in ordering too much of the sentence of each of [the] 54 charges to be made cumulative upon the base sentence and upon each other.

Ground 3:  The Learned Sentencing Judge erred in that he gave the principle of totality insufficient operation.

1. In substance, as the submission was developed, the contention was that the total sentence — that is, 14 years’ imprisonment with a minimum of ten years — was manifestly excessive.  That amounts to a submission that it was not reasonably open to this judge, sentencing this offender for these offences, to impose that sentence.  That is, as this Court has been constrained to say repeatedly, a high hurdle to overcome.  In Clarkson v The Queen,[2] a five member bench of the Court of Appeal said:

As this court has repeatedly emphasised, the ground of manifest excess will only succeed if it can be shown that the sentence was “wholly outside the range of sentencing options available” to the sentencing judge. That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender. This is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown.[3]

[2]Clarkson v The Queen (2011) 32 VR 361.

[3]Ibid 384 [89] (citation omitted). See also DPP v Karazisis (2010) 31 VR 634, 662–3 [127]; Mokbel v The Queen [2013] VSCA 118, [106].

1. Senior counsel for the applicant conceded that the individual sentences of five years on the counts of negligently causing serious injury, though stern, were not outside the range for the individual offences.  Senior counsel also conceded that the sentencing judge was entitled to order a degree of cumulation in respect of each of the separate offences, in recognition of the separate criminality involved in each offence and the harm separately inflicted on each individual victim.  Those concessions were properly made, in my opinion, and they reflect the care and moderation with which the submissions were made on behalf of the applicant.  Everything that could properly have been said in support of the application was said.

1. Those concessions having been made, the only question for consideration is whether there was a breach of the principle of totality — that is to say, are the total effective sentence and the non‑parole period disproportionate to the total criminality involved in the 55 offences?  There is clear law that, having decided the individual sentences in a multiple offence case and having formed a view about the appropriate measure of cumulation, a sentencing judge should examine the total sentence which those orders would produce and ask whether there is any disproportion between the total sentence and the total criminality involved in all of the offences.[4]

   [4]Mill v The Queen (1988) 166 CLR 59, 62–3; Postiglione v The Queen (1997) 189 CLR 295, 307–8.

1. The submission for the applicant was that, upon making that final review of the sentence, the judge should have concluded — and this Court should now conclude — that the total sentence was indeed disproportionate.  Senior counsel for the applicant submitted, by way of illustration, that cumulation of one month on each of the 54 counts would have been appropriate.  That would have produced a total effective sentence of nine-and-a-half years.  I will return to that submission in a moment.

1. In my opinion, it is not reasonably arguable that the sentence imposed was disproportionate to the total criminality.  On the contrary, in my respectful opinion, the sentence which his Honour imposed, the individual sentences and the orders for cumulation, are unimpeachable.

1. This was very serious offending.  I respectfully agree with the sentencing judge when he said:    

I consider your conduct to be truly reprehensible and I view your moral culpability in relation to each offence as very high.  This was not a single transitory madness with 55 dreadful consequences.  You had been addicted for many years, you knew you had Hepatitis C, and you knew how it could be transmitted to others.  You adopted a practice of stealing that drug from your employer, and in the process exposed your patients to great risk, that risk becoming a reality on 55 occasions.  You breached the great trust that every patient places in his or her treating doctor.  As I have said a few moments ago, your addiction provides an explanation for the criminal negligence you exhibited over 17 months and on 55 occasions.  It does nothing to excuse it.[5]

[5]Reasons, [10].

1. On each of the 55 occasions, there was a gross breach of Dr Peters’ duty of care to his patient.  He exposed each patient to great risk.  He did so in a gross breach of the trust reposed in him by that patient, and by his conduct he inflicted very serious injury on that patient, with long‑term consequences. 

1. In those circumstances, there is obvious difficulty in conceptualising, or characterising, the aggregate criminality.  Views will doubtless differ as to how seriously the conduct should be viewed in aggregate.  It is sufficient for present purposes to say that there is nothing whatsoever disproportionate about this sentence, having regard to the very substantial criminality involved in this appallingly long sequence of acts of gross negligence.  I reject the submission that nine-and-a-half years as a total sentence would have been proportionate.  In my opinion, such a sentence would have been manifestly inadequate, that is, wholly disproportionate to the seriousness of the offending.

1. The remaining ground is ground 4, which was as follows:

Ground 4:  The Learned Sentencing Judge erred in rejecting the submission that the offending was mitigated by the applicant only becoming aware of his causing serious injury after the cluster was identified and brought to his attention.

I would uphold the Crown’s submission, in concluding that this ground is not reasonably arguable.  As the Crown submitted, the plea of guilty involved an acknowledgement by Dr Peters that his actions involved such a great falling short of the standard of care which a reasonable anaesthetist would have exercised, and involved such a high risk of serious injury, as to merit criminal punishment.  Quite properly, senior counsel for the applicant took no issue with that statement.

1. It follows, in my view, as the Crown submitted, that the stage at which Dr Peters became aware of the injury resulting, or likely to result, from his conduct was entirely irrelevant to the sentence imposed, and was incapable of mitigating the sentence.  Leave to appeal should therefore be refused.

OSBORN JA:

1. I agree subject only to the following. 

1. The proposed grounds of appeal raise allegations of manifest excess, excessive cumulation, failure to have sufficient regard to the principle of totality and failure to have regard to a significant matter of mitigation. 

1. In the course of submissions, senior counsel for the applicant conceded that it was difficult to argue that the individual sentences of five years’ imprisonment were excessive.  He also conceded that some cumulation was appropriate in respect of each conviction.

1. For the reasons which the President has explained, these concessions were properly made.

1. In turn it cannot, in my view, be said that the principle of totality was

arguably breached in this case when regard is had to the matters carefully elucidated by the sentencing judge.  More particularly, the total criminality of the applicant's conduct was materially aggravated by the fact that the offending, on each individual occasion and for an extended period of repeated conduct, involved negligence in the following circumstances. 

1. The negligence in issue was gross negligence by a specialist medical practitioner in a position of trust who acted negligently towards a totally vulnerable class of persons who he knew were reliant upon his professional skill in managing the syringes he used for anaesthetic procedures.  He also knew that he had hepatitis C and that the use of a syringe to inject Fentanyl into his own bloodstream involved the danger of blow back and therefore a risk of subsequent infection if the syringe were reused.  He further knew of the serious long‑term potential consequences of cross-infection with hepatitis C, and ultimately his conduct resulted in very serious long-term physical and psychological injury to his victims. 

1. The further submission that the cumulation imposed was excessive is also not reasonably arguable.  Any lesser cumulation would, in my view, have reduced the individual victims to mere ciphers, and some substantial cumulation was necessary to reflect the moral culpability inherent in the repeated practice of grossly negligent acts. 

1. Lastly, for the reasons which the President has given, the ground relating to mitigating circumstances is misconceived. 

1. In my view, no arguable error has been demonstrated in the reasons of T Forrest J which are a model of clarity and balance. 

1. I would refuse the application for leave to appeal.  

HARGRAVE AJA:

1. I agree with the reasons given by both the President and Osborn JA.  The

application for leave to appeal should be refused.

MAXWELL P:

1. The order of the Court is:  application for leave to appeal be refused.

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