R v Hodgetts

[1999] QCA 266

99.266

COURT OF APPEAL

de JERSEY CJ
PINCUS JA
FRYBERG J

CA No 38 of 1999

THE QUEEN

v.

PAUL HODGETTS  Applicant

BRISBANE

..DATE 15/07/99

JUDGMENT

THE CHIEF JUSTICE: Then a 32-year-old man, the applicant pleaded guilty on 29 January 1999 to a series of dishonesty offences committed in the first seven months of 1992 and over a period of about a week in January 1997. He was sentenced effectively to four years and eight months' imprisonment to which another month was added for breach of the Bail Act. There was recommendation for consideration for eligibility for parole after the serving of 18 months of that four years and nine months.

The offences involved more than $150,000 worth of property and the last set of them were committed in 1997 while the applicant was on bail in respect of the 1992 offences.  To my mind the sentences were plainly appropriate save arguably in this respect.  The learned sentencing Judge was aware that the applicant has hepatitis C and cirrhosis of the liver and that he may need a liver transplant and she confirmed that she took those matters into account.  Those circumstances obviously did not exclude imprisonment:  see Smith (1987) 44 South Australian State Reports 587 at 589.

When the matter first came before us on 12 April 1999 the applicant relied on a report by a Dr Fosberry in which that doctor referred to advice from hospital specialists that the applicant "would be fortunate to reach the age of 35".  We requested the provision of proper medical reports as to the applicant's condition.  They are now available and confirm that the applicant may be given proper medical treatment while incarcerated and, further, that his life expectancy is about 10 years plus or minus three years.

Our concern to explore the issue of his life expectancy further, arose in circumstances where the material last before us suggested that his death might occur very soon.  That is not now borne out.  I agree with this observation in the New South Wales Court of Criminal Appeal in Sopher (1993) 70 Australian Criminal Reports 570 at 573:

"Health and age are relevant to the length of sentence but usually of themselves would not lead to a gaol sentence not being imposed if it were otherwise warranted.  Much depends on the circumstances.  For example a person may have but a short period to live or need intense treatment which cannot be provided in gaol.  There may be circumstances where to keep a person in gaol will probably lead to his early death and this would not otherwise occur.  The variety and combination of circumstances are legion and appropriate balance has to be maintained between the criminality of the conduct in question and any damage to health or shortening of life."

Under this sentence the applicant has the benefit of a recommendation for consideration for eligibility for parole after 18 months.  He has now been in gaol for approximately eight months.  Albeit that the head term is four years and nine months the recommendation does ameliorate the sentence to a point where, allowing also for the criminality of his conduct, an appropriate balance has in my view been struck.  I would therefore refuse the application.

PINCUS JA:  I agree.

FRYBERG J:  I agree.

THE CHIEF JUSTICE:  The application is refused.  Thank you, gentlemen.

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