R v Peters
[2013] VSC 93
•7 March 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0056 of 2012
| THE QUEEN |
| v |
| JAMES LATHAM PETERS |
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JUDGE: | T FORREST J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 11-12 February 2013 | |
DATE OF SENTENCE: | 7 March 2013 | |
CASE MAY BE CITED AS: | R v Peters | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 93 | |
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CRIMINAL LAW – Sentence – 55 charges of negligently causing serious injury – Offender a medical practitioner who infected patients with Hepatitis C – Breach of trust – Offender addicted to narcotics – Age and ill health of offender – General deterrence – Sentenced to 14 years imprisonment with a minimum non-parole period of 10 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Silbert SC | Office of Public Prosecutions |
| For the Accused | Mr J Dickinson SC | Slades & Parsons Solicitors |
HIS HONOUR:
At 63, you are professionally disgraced, de-registered, socially isolated and facing imprisonment for a large proportion of the rest of your life – perhaps all of it. For what? For succumbing to an addiction that has compromised every aspect of your life. For infecting 55 vulnerable young women who placed their absolute trust in your professional skill and integrity. For giving them a virus from which there is no certain recovery. For placing most of them at risk of developing cirrhosis of the liver and liver cancer. For causing every one of them to suffer significant emotional trauma. Your predicament, and theirs, can be traced to one poisonous tap-root. Your uncontrolled addiction to narcotics, and in particular Fentanyl. That addiction, whilst it undoubtedly explains your offending, does not reduce your moral culpability in any way.
Your counsel, Mr Dickinson SC, correctly submitted that I must not allow the suffering you have caused to overwhelm me. Of course I must consider all sentencing factors, and the consequences of your criminality must take their place with all other factors in the sentence that I impose.
Your addiction to narcotics can be documented back some 18 or more years. As a medical practitioner you issued false prescriptions in late 1994 through to July 1995. Although the reason given initially was that these prescriptions were written to feed your then wife’s narcotics addiction, by December 1995 you advised the Medical Board of Victoria that you had developed an intravenous drug problem relating to your use of both Pethidine and Fentanyl. Both narcotics were used in the practice of anaesthesia – your specialisation. You were dealt with by the Magistrates’ Court in August 1996 where you received a six month suspended gaol sentence. The Medical Board suspended your medical registration for 12 months from May 1996. During this period of suspension you worked as a motorcycle courier.
You remained under the supervision of the Medical Board until February 2010 when your were finally de-registered following the detection of a cluster of Hepatitis C cases traced to the Croydon Day Surgery, and ultimately, to you. In 1997, the Health Department was notified that you were suffering from Hepatitis C, probably contracted from sharing needles with your wife. At no stage, it appears, was your Hepatitis C status ever brought to the attention of the Medical Board, either by you or the Health Department. What is certain, however, is that you knew you were suffering from Hepatitis C. Any measure of your subsequent conduct must take into account both that you knew you carried this virus and, as an anaesthetist, you must have known that this pernicious illness could be transmitted by the mixing of your blood into the bloodstream of another.
You returned to anaesthesia in 1997 under supposedly strict conditions imposed by the Medical Board. In a history given to your psychologist, you asserted that you discontinued opiate use in late 1996, but relapsed in 2003 after the death of your (by then) former wife. This is inconsistent with observations made by a nurse at Box Hill Hospital in 2000 who complained about your apparent appropriation and use of Fentanyl. You were registered to practice as an anaesthetist throughout the period from May 1997 until February 2010, although sporadically you withdrew from practice to deal with either your addiction and/or other health problems. I regard it as clear that from at least 2008 onwards, you were not only addicted to narcotics, but were using them on a regular basis.
You commenced working casually at the Croydon Day Surgery (‘CDS’) in 2004 and then on a regular basis in 2006. Kathleen Ambrosio was responsible for maintaining a sterile environment at CDS. In a statement made to police in October 2010, inter alia, she said the following:
All the nursing staff were aware Jim had a drug problem… When Jim started back after the throat cancer (late 2006), I remember he was doing daily urine tests. As far as I knew, they were coming back clean. It was probably sometime last year that I noticed a change in Jim… I’m not good with dates… We all knew that Jim was using again… but nothing could be proved and all his tests came back negative as far as I knew…
It is a matter of singular regret that the very regular urine samples taken from you under Medical Board supervision were never once tested for the presence of Fentanyl or its metabolites, notwithstanding that this was your narcotic of choice and one to which you were exposed on a daily basis.
Between March 2006 and 7 December 2009, you carried out over 3,500 anaesthetic procedures at CDS. 47 patients were ultimately infected with your particular strain of Hepatitis C and a further eight tested positive for Hepatitis C antibodies. All of these patients were infected between June 2008 and November 2009.
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.
Medical Board
Both the prosecutor and your counsel made highly critical observations of the Medical Board of Victoria. By and large, these criticisms were justified. The Board relied on your honesty and their urine screening program failed in the way that I have explained. Whatever the failings of the Board may have been, however, you cannot derive much comfort from them from a sentencing perspective. It was you who infected your patients, not the Board. It was you who failed to notify the Board of your Hepatitis C status, it was you who mislead them as to the true state of your addiction, and it was you who made the decision to continue practicing even when you knew that your addiction was hopeless. I do not regard the shortcomings of your supervision as diminishing your moral culpability in any material respect.
Personal background
You were born in Melbourne, raised initially in Camberwell and then at Bonbeach. You are the youngest of three children. I understand that your parents’ marriage was unhappy as you grew towards adolescence. Your mother developed early onset dementia and your father was distant and increasingly absent from the home. Your mother died in 1983 and your father in 1998. You were obviously a competent student and matriculated from Mentone Grammar in 1966. You graduated from Monash University in 1973 with a Bachelor of Medicine and a Bachelor of Surgery. You were married in 1977, although this first marriage lasted only a few years. You completed your specialist training as an anaesthetist in 1979.
You worked, travelled and tried a business career in the 1980’s, but with the economic downturn late in that decade, you returned to medicine. You married again in 1991 and your two daughters were born in 1993 and 1994. Your wife, a nurse, was a user of narcotics and as I have indicated a little earlier, you commenced abusing narcotics at around this time. Despite your addiction, I accept that you have been a good father to your daughters. You have been a single parent since their mother’s death, which I referred to earlier. You have educated and raised them from a young age. Your treating psychiatrist, Dr Wendiggensen, states ‘Throughout his treatment (31 sessions) he showed more concern for the welfare of his two daughters than himself.’
Your health is reasonable only. In addition to your Hepatitis C status, you suffered from tonsillar cancer in 2004. After treatment, it remains in remission. Your psychiatrist states that you suffer from asthma, chronic bronchitis and emphysema. He notes that you continue to smoke 10 to 20 cigarettes a day. I shall take your age and health into account in endeavouring to arrive at an appropriate sentence.
It appears that you have neither sought nor received psychiatric treatment before November 2010. At that stage, whilst the CDS investigation was proceeding, your general practitioner referred you to Dr Wendiggensen who, as I have observed, saw you on 31 occasions. In short, he made the obvious diagnosis of opiate dependence. He also diagnosed an adjustment disorder with anxious features. This latter diagnosis appears to be related to your current predicament.
You are entitled to a significant sentencing discount for your pleas of guilty. A lengthy and emotionally draining trial has been avoided. Mr Silbert SC accepts that your plea has come at an early stage. After some anxious consideration, in the absence of some other evidence, I am not prepared to accept that your plea evidences any remorse. I quote Dr Wendiggensen:
More likely Mr Peters may have been unwilling or unable to face his irresponsibility and destructiveness. He did not ever express regret or guilt.
On balance, I agree with Dr Wendiggensen that your apparent indifference to your offending is a coping mechanism. Again, I quote him:
Disgraced as a doctor, rejected and socially isolated, Mr Peters seemed to be able to retreat into an inner space and dissociate from appropriate guilt or distress.
I should emphasise that my conclusion on your lack of remorse is not a factor that aggravates your offending. It is simply an absence of a factor that would tend to mitigate it.
I consider that your age and your health mean that it is likely that imprisonment will be more onerous for you than for younger, fitter offenders. I also consider that given the nature of your offending there is a prospect that you may serve some of your sentence in a protection unit. I take these factors into account in your favour.
I consider that general deterrence is an important factor in the sentencing mix. Other health professionals, whether addicted or not, must understand that their patients are entitled to conscientious and professional care, and that criminally culpable negligent conduct will be met with stern punishment. The community expects this, and I am sure every responsible member of the medical profession expects it too.
I do not consider that specific deterrence is relevant in this case. You will never be in a position to offend in this way again. The prospects for your rehabilitation must be reasonably sound. At your age, and given your health status, I consider it is unlikely that you will offend again.
I consider that the sentencing purposes of punishment for your conduct and the Court’s denunciation of it must assume some weight in this sentencing exercise. The physical damage caused by your conduct and the associated emotional harm cannot adequately be described by me in words. The Victim Impact Statements speak for themselves. As I have said at the commencement of these reasons I cannot and do not allow myself to be overwhelmed by them, but neither can I ignore them.
The fact that each offence is constituted by a separate negligent act leads me to conclude that it is appropriate to make orders for cumulation in this sentencing exercise. In making those orders, and more generally, I am required to consider the principle of totality. The aggregate sentence imposed must be a just and appropriate reflection of your total criminality. I have endeavoured to achieve this object.
Stand up please Mr Peters.
a. On each charge I sentence you to 5 years imprisonment.
b. I declare that the sentence on charge 1 be the base sentence.
c. I declare that two months of each remaining charge be served cumulatively upon the sentence imposed on the base charge and upon the sentence imposed on each other charge.
The effect of that is that I impose a head sentence of 14 years. I set a minimum term of 10 years before parole eligibility. I declare that 25 days including today have been served by way of pre-sentence detention.
Pursuant to s 6AAA of the Sentencing Act 1991 I declare that but for your pleas of guilty I would have sentenced you to an effective term of 17 years imprisonment and I would have imposed a minimum term of 13 years imprisonment.
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