R v Hodgetts

[1999] QCA 116

99.116

COURT OF APPEAL
de JERSEY CJ
PINCUS JA

FRYBERG J

CA No 38 of 1998
THE QUEEN
v.

PAUL HODGETTS Applicant

BRISBANE
..DATE 12/04/99
120499 T16-17/SJ3 M/T COA69/99
THE CHIEF JUSTICE: The applicant was sentenced to terms
of imprisonment producing in effect a four year nine
months sentence with a recommendation for consideration
for parole after he had served 18 months. The offences
to which he pleaded guilty were offences of dishonesty.

He was sentenced in the District Court at Ipswich on 29

January 1999.

The grounds upon which he would seek to appeal against
the sentence are:

"The severity of sentence is extreme due to medical

condition. Documentation will be produced to the
Court to show evidence evidencing the life
threatening nature. This evidence was unavailable

at the time of my original Court appearances."

When the matter came on this afternoon the applicant,
who represents himself, provided the Court with further
material which included, arguably significantly, a
document which might be styled a letter dated 30 July
1997 from a medical practitioner, Dr Fosberry, at the
Fulham Correctional Centre which advises with respect to
the applicant that he is in the advanced stages of
cirrhosis of the liver and as the doctor puts it:
"I have been advised by specialists at St Vincents

Hospital in Melbourne that Mr Hodgetts would be fortunate to reach the age of 35."

An estimate of life expectancy was apparently not put
before the learned sentencing Judge.
120499 T16-17/SJ3 M/T COA69/99

The matter in terms of submissions was covered at page 17 of the record and in terms of Her Honour's analysis at page 23 of her sentencing remarks when she says:

"You have health problems which are detailed in some of

the documents that have been tendered. The most
significant of which is that you have hepatitis C
and cirrhosis of the liver and that you will need a
liver transplant in the near future. Dr Fosberry
in 1997 wrote from the Fulham Correctional Centre
that he was worried about your treatment whilst
incarcerated in Victoria because of your need for a
proper high protein diet and proper medical
treatment including a drug called Interferon which
cannot be administered in gaol. They are all
matters that I have to take into account on
sentencing."

I should point out that the letter to which Her Honour referred, written by Dr Fosberry in 1997, is at page 45 of the record and is a letter dated 24 June 1997 - different, in other words, from the one upon which the applicant would now seek to rely.

As to this new letter the applicant asserts before us
that he provided it to his lawyers prior to the
sentencing but that they failed to put it before the
learned Judge. It does appear, as the matter is
presented to us today, as if the learned Judge was not
given any indication about life expectancy. The
applicant is now 32 years old, almost 33, and it follows
obviously enough that had Her Honour been informed that
his life expectancy at this time is indeed very short
that may very well have affected the term of
imprisonment she was otherwise inclined to impose.
120499 T16-17/SJ3 M/T COA69/99
It would in my view be inappropriate for this Court to
proceed, however, without further inquiry on the basis
of the letter of 30 July 1997 from Dr Fosberry. Apart
from anything else, he is in that report merely
recording something about which he says he has been
advised by unidentified specialists at St Vincents
Hospital.
The preferable course would be for the Crown now to have
the applicant examined by a liver specialist and to
thereby equip itself to put in proper form before this
Court an estimate of the applicant's life expectancy in
context of the diseases from which he is suffering.
There should be no difficulty in that being arranged.
...

THE CHIEF JUSTICE: The order of the Court is that the application is adjourned to a date to be fixed.

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