The Court states
1 The applicant James Peters was an anaesthetist who between March 2006 and 7 December 2009 carried out anaesthetic procedures at Croydon Day Surgery. In 1997 he was diagnosed with hepatitis C. Despite knowing of his infection, between 6 June 2008 and 20 November 2009 the applicant repeatedly stole syringes of the drug fentanyl from the operating theatre, took them to a private place, injected himself and then re-used the same syringe on a patient.
2 As a consequence of this conduct, 55 of the applicant’s patients were infected with hepatitis C. Of those patients, about eight to ten tested positive for hepatitis C antibodies but negative for the virus itself, meaning that by the time of testing they had ‘cleared’ the virus with which they had been infected.
3 After a plea of guilty, the applicant was sentenced by a judge in the Trial Division on 7 March 2013 to a total effective term of 14 years’ imprisonment on 55 charges of negligently causing serious injury contrary to s 24 of the Crimes Act 1958. He was sentenced to five years’ imprisonment on each charge, with two months of each sentence other than the base sentence being cumulated. A non-parole period of ten years was fixed.
4 The applicant made an unsuccessful application for leave to appeal against sentence in 2013.[1] He now seeks an extension of time within which to make an application for leave to appeal against conviction, relying on two proposed grounds. The first proposed ground is that certain of the convictions are ‘unsafe and unsupported by the evidence’, including because infection with hepatitis C virus, without more, did not constitute a ‘serious injury’ for the purposes of s 24. The second is that there is fresh evidence which gives rise to a reasonable possibility that a miscarriage of justice has occurred. The fresh evidence is said to be that new treatment options for hepatitis C have become available with close to a 100 per cent success rate, meaning that people infected with the hepatitis C virus who take the new medications will not develop long term injurious symptoms. It is said that the applicant would not have entered guilty pleas to several of the charges if this evidence had been available at the time.
5 The applicant seeks leave to appeal out of time. He seeks that extension on the basis that the fresh evidence on which he relies was not available at the time of his conviction or within the appeal period. It is said that the fresh evidence only became available as a result of recent advances in medical science and changes in government policy. The applicant also submits that he was not able to engage new legal representatives until 2017 when he was offered pro bono representation. In an affidavit sworn in support of the application for an extension of time, he states that his understanding at the time of the plea was that infection was deemed a serious injury. He became aware of new treatments for hepatitis C in ‘late 2015 or early 2016’ when a brochure was distributed to him in prison and he personally underwent treatment. The applicant states that he made ‘numerous’ attempts to secure legal representation since becoming aware of the new treatment, but was unable to do so because of his impecuniosity. He states that, since a settlement reached with his victims between November 2014 and April 2015, he has not ‘had control over any assets’. The applicant also says that he is in a dispute with Victoria Legal Aid which has prevented him from obtaining further legal aid for the present application. The affidavit states that the applicant’s current legal representative only came into contact with him, offering pro bono assistance, in March 2017.
6 The respondent opposes the extension of time application. It is submitted that the applicant’s affidavit does not adequately explain the five year delay and that the proposed grounds of appeal lack merit. The respondent also points to the public interest that the finality of the proceedings is maintained, especially in the present case because of the potential for unnecessary further suffering for the victims.[2] The respondent notes that approximately ten years have passed since the victims were infected, that they were not required to give evidence in the earlier proceedings and they have been making attempts at recovery.
7 The respondent also contended that the applicant had delayed in bringing the application. He had the services of senior counsel at the committal, on the plea and in the appeal against sentence. He became aware of new treatments in 2015 or early 2016 and obtained the assistance of his current legal representative in March 2017, but the application for an extension of time was not made until 8 June 2018In R v Peters [2013] VSC 93 the Court stated
1 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.
2 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.
3 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.
4 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.
5 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.
6 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.
7 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
8 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.
9 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.
10 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
11 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.
