The Queen v Vachon[1998] QCA 185

COURT OF APPEAL

de JERSEY CJ

HELMAN J

CHESTERMAN J

CA No 1 of 1998

THE QUEEN

v.

DUANE ALLEN VACHON                     Applicant

BRISBANE

DATE 17/06/98

JUDGMENT

CHESTERMAN J:  On 16 December 1997 the applicant pleaded guilty to a total of sixteen counts arising out of the

pre-meditated, sustained and degrading attacks on two women who were attacked on separate occasions by the applicant and an accomplice.

Two of the offences to which the applicant pleaded guilty carried a maximum sentence of fourteen years imprisonment. The learned sentencing judge in fact imposed the maximum for those offences and lesser terms of imprisonment for the other offences to be served concurrently.

The applicant seeks leave to appeal against the sentences imposed on the ground that they are manifestly excessive.

The application raises only one point.

When the matter first came before this court on 19 March this year, counsel for the applicant conceded that, but for the one point, no challenge could be mounted to the imposition of the head sentence of fourteen years imprisonment.

The point which the applicant submits makes the sentence manifestly excessive is that, by reason of his health, imprisonment will be a harsher punishment for him than for the average prisoner.

The legal principle has been expressed in these terms by King CJ in R v. Smith (1987) 44 SASR 587 at 589:

"Generally speaking, ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."

The same point was expressed by the Court of Criminal Appeal in New South Wales in R v. Vachalec (1981) 1 NSWLR 351 at 353:

"It is obvious that imprisonment will always impose physical and emotional hardships and deprivation upon the person imprisoned. But there can be cases where that hardship and deprivation would be particularly aggravated by matters subjective to the prisoner and this is a proper consideration to be taken into account by a sentencing judge."

It was submitted to the sentencing judge by counsel who then appeared for the applicant that he:-

.Had suffered three strokes, the most recent of which occurred while he was held in custody in October 1996.

.In 1995 was diagnosed as suffering a melanoma of the right optic nerve as a result of which he lost sight in that eye. The cancer was treated by radium and chemotherapy, a side effect of which was that he suffered dermatitis to his head and feet.

.Suffers from diabetes which has led to hypertension. The treatment of his diabetes given in prison was not optimal.

.Was losing the sight in his left eye.

.Had developed malignant tumours in his groin and his chest which were painful and the first of which interfered with his mobility so that he had to walk with the aid of a stick.

In passing sentence the learned judge said:

"I hear and accept that your health is not good. I do not take that really into account because I am confident that you will receive proper treatment in prison at public expense."

The applicant submits that the learned judge erred in his sentencing discretion in not taking into account when deciding upon an appropriate term of imprisonment the applicant's alleged serious ill health and the fact that for him the hardship of incarceration will be particularly aggravated.

For the purposes of this application, a report was obtained from the Health Services Co-ordinator of the Arthur Gorrie Correctional Centre in which the applicant is detained. The report reveals that:

.The applicant has no residual symptoms from his strokes. He is fully mobile but walks with a stick, though he is able to walk unaided.

.The cancers to the optic nerve and right eye have been successfully treated and there is no evidence of recurrence.

.His hypertension is well controlled by suitable therapy administered in gaol.

.The applicant's diabetes is non-insulin dependent and is adequately treated by medication given orally. The applicant does not in fact attend the hospital infirmary as regularly as he should and as regularly as he has been requested to do so that his blood sugar level can be monitored. Nor is he as conscientious in adhering to his diabetic diet as he should be. He has, consequently, put on weight.

.The applicant does not in fact have cancerous tumours in his groin or chest.

.There is no evidence that he is losing the sight of his left eye. If he follows medical advice for the treatment of his diabetes his eyesight will not be in jeopardy.

.The applicant does not suffer from chronic dermatitis but he does suffer occasional recurrences as a reaction to his radiotherapy. He has been free of the complaint for about six months.

.He does have osteo-arthritis in his hips and spine. The condition is consistent with his age and previous trauma. As I have said, it does not affect his mobility, though he affects to walk with a stick. He is given analgesics to reduce pain as required but has, in fact, not had much occasion to seek that medication.

The basis on which it was submitted that imprisonment would be, for the applicant, a greater burden by reason of his state of health was that he was:-

1. largely immobile;
2. losing the sight in his remaining eye;
3. suffering malignant tumours in two sites which could not be properly treated in prison; and
4. suffering from diabetes which could not be adequately treated in prison.

The material shows these complaints to be without substance. There is indeed a suspicion that the application is an attempt to humbug the Court. In my opinion, the sentencing judge was correct in refusing to take the applicant's health into account as a factor tending to reduce the sentence of imprisonment which, on the evidence, would not impose aggravated hardships beyond those ordinarily endured.

In my opinion the application should be refused.

THE CHIEF JUSTICE:  I agree.

HELMAN J:  I agree.

THE CHIEF JUSTICE:  The application is refused.