R v Harris [2009] VSCA 287

2 The circumstances of the subject offending committed on 17 December 2007 are conveniently stated by the sentencing judge:

On that morning you were at home with other members of your family, getting ready to attend a family Christmas function. During those preparations your younger son telephoned to advise that his cricket match, due to be played that morning at the Jacana Cricket Ground, had been cancelled due to poor weather.

Despite knowing that you had previously been considered by the medical practitioners who had diagnosed and treated you for your epilepsy to be unfit to drive and a danger to other road users if you did, you volunteered to drive the relatively short distance to the cricket ground to collect your son. You knew at that time that there were others at the house who were licensed and could have performed that task.

At approximately 9.10 am you left your home driving your 1991 Ford Fairmont sedan FNT-153. As you were driving in a southerly direction along Pearcedale Parade, Broadmeadows you were seen to stop the vehicle on the side of the road before then pulling back into the traffic and continuing south.

Some time immediately after this you suffered an epileptic fit which caused your vehicle to travel south and out of control along Pearcedale Parade. Your vehicle travelled through the intersection with Dimboola Road and picked up speed as it travelled down the hill towards the next intersection, being Pearcedale Road and Johnstone Street, and then into the car park entrance of the Broadmeadows Health Service.

Your vehicle then struck a gutter just inside the entrance which caused the vehicle to become airborne. Your vehicle then travelled over a roundabout and collided with the driver's side of a white Holden Statesman being driven by the victim, Kate James. That contact caused her car to spin and then collide with a blue Volvo which then collided with a silver Holden Commodore. Fortunately the latter two vehicles were unoccupied at the time. All four vehicles sustained significant damage as a result of the collision.

As a result of the collision Mrs James received serious injuries which included a shattered finger and wrist and a broken bone and lacerations to her foot, all being on the right side of her body. She also received extensive bruising to her right side and other bruising and lacerations to her body.

Mrs James was 27 weeks pregnant at the time of the collision and had until that time enjoyed a pregnancy without complication. When Mrs James was taken to hospital ultrasound tests were performed and confirmed that foetal heart activity had stopped and the foetus had died in utero. This was as a direct result of a placental abruption caused by the abdominal trauma she sustained in the collision. Mrs James gave birth to her stillborn son two days later.

Mr Harris at the time of the collision you were 39 years of age. You had been diagnosed with epilepsy at age 24 following a hospital admission, and have been medicated for that condition ever since. Your condition took the form of complex partial seizures which comprise uncontrollable abnormal movements and on occasions, a complete loss of consciousness.

In your interview with police you indicated that you had been told by doctors when diagnosed with epilepsy in 1992 that you should not drive as you would be a danger to other road users. Despite that advice you continued to drive, taking the view that you would be able to take remedial action and pull the car over and turn off the ignition before the seizure took hold.

The wisdom of the medical advice you received and foolishly ignored for selfish reasons was brought home to you in a very real and practical sense on 5 August 2006. On that date you suffered an epileptic fit while driving which caused the car you were driving to crash into the rear of another car as it was slowing down on approach to a roundabout at the intersection of Wilfred Street and Jacana Avenue in Broadmeadows.

You told the police who attended that accident scene that you had suffered an epileptic fit which had caused you to run into the back of the other car. You were told by police that they would be contacting VicRoads regarding your medical condition and unfitness to drive and you were also advised that VicRoads would contact you regarding those matters.

Shortly afterwards on 15 August 2006 the Roads Corporation sent a letter to the address on your licence requesting you to supply a medical report as to your fitness to drive. You have never replied to that correspondence. When they received no reply a notice of suspension of licence was sent to you on 25 November 2006. Your licence was suspended from 9 December 2006, a situation that still existed on the date of the driving incident that brings you before this court.

Exhibit C on the plea demonstrates that you applied to change your name from Raymond Ryan to Steven Harris in late October 1999, one month before your driving licence in the name of Ryan was due to expire if not renewed. As you told police in your record of interview, you did that for the sole reason of obtaining a licence to drive, which you thought might otherwise not be the case on account that your licence may not have been renewed in the name of Ryan due to your medical condition.

The victim, Mrs James, has made a victim impact statement which was tendered on the plea, together with medical reports from her treating GP, Dr Nicole Astley, and a psychologist, Dr Ian Bell. We have read that material and take it into account. In her victim impact statement Mrs James refers to the understandable anger and depression she has experienced as a direct result of your senseless act of driving and its consequences. Her GP was sufficiently concerned about her depression, post-traumatic stress and extreme anxiety to refer her to Dr Bell for psychological counselling.

Dr Bell has seen Mrs James regularly since 26 February 2008 and has treated her for anxiety, depression and post-traumatic stress disorder. Mrs James continues to have a profound avoidance of driving and has had difficulty sleeping. In Dr Bell's opinion she has shown improvement in her condition, assisted by the prescription of the antidepressant medication, Zoloft, and the prosecution of you for the offences that you have committed. Dr Bell anticipates that if things continue to improve at the present rate Mrs James's recovery will approach completion in months rather than years, and she will have no further need for longer term ongoing mental health management and/or treatments. It is to be hoped that his favourable prognosis takes place as he predicts.

The appellant is married with three children. As the sentencing judge described, he is a diagnosed epileptic since his 20s. He is now 41. Medical evidence discloses he suffers two to three episodes per week where he does not lose consciousness and one episode per week where he loses consciousness.

3 The victim of the appellant's offending set out in a statement the extent of her loss and suffering from the offending. These matters were referred to in the extract from his Honour's reasons.

4 There is no issue that the appellant has good prospects for rehabilitation. An assertion on the plea that he would suffer additional difficulty in prison due to his epilepsy was responded to by the calling of witnesses for the prosecution from Justice Health and Corrections Victoria. The evidence was not seriously challenged by the appellant and was accepted by the sentencing judge.

5 The appellant pleaded guilty early and was and remains remorseful subject to an equivocal comment from a psychologist addressed below.

6 On the plea, the prosecution emphasised two factors as significant. First, the high moral culpability of the appellant in driving in full knowledge of his condition and his prohibition from driving. Secondly, the very significant impact of the offending upon the victim.

7 Importantly, his Honour considered general deterrence, denunciation and just punishment had to be given emphasis in all the circumstances. As recited, his Honour observed that the appellant's reasons for his actions were selfish and totally inexcusable. This was not challenged on the appeal. His Honour also considered specific deterrence should be given some but not significant weight. Again this was not challenged on the appeal. The judge further considered the case did not fall in the worst case category of the offence but was a very serious example. His Honour specifically addressed the sentence to maximise the appellant's chances of rehabilitation and to provide for a period of supervised parole.

8 On the count of negligently causing serious injury (Count 1) a sentence of three years' imprisonment was imposed and on the count of driving whilst authorisation was suspended (Count 8) a sentence of one months' imprisonment was imposed. Both sentences were to be served concurrently. A non-parole period of two years was fixed. Under Section 6AAA of the Sentencing Act 1991, his Honour indicated a term of four years' imprisonment with a non-parole period of 32 months.

9 The appellant substantiates his manifest excess ground of appeal on the bases of insufficient regard to the plea of guilty, remorse, the burden of his medical condition in prison and his vulnerability, prospects for rehabilitation and the submission that the offending did not fall into the worst category.

10 The maximum penalty for the primary offence at the time was five years' imprisonment. In our view the considered and concise reasons for sentence of his Honour are free from manifest error. The matters of the plea, remorse, suffering and vulnerability in prison, rehabilitation and the gravity of the offending were properly considered and taken into account. It is apparent that his Honour took account of the plea in his indication pursuant to Section 6AAA. There was acknowledgement of the appellant's remorse. His Honour had the benefit of the evidence as to the management of the appellant's health in custody and accepted the essentially unchallenged evidence as to the medical care to be provided. His Honour acknowledged the prospects of rehabilitation.

11 Ultimately, the key issue was the gravity of the offending. Clearly his Honour placed weight on the prosecution's submission as to the moral culpability of the appellant and the impact on and consequences for the victim. All these matters were properly weighted and assessed. The offending was serious.

12 It is appropriate and relevant to restate the principle expressed in DPP v Gany:

Serious driving offences frequently involve offenders who are of generally good character and who have excellent prospects for reformation. No-one likes sending such people to gaol but there has been much publicity about the consequences for those who choose to drive their motor vehicles in a criminally negligent or reckless manner causing serious injury or endangering other members of the public. This Court has said on numerous occasions, frequently when dealing with offences of culpable driving and negligently causing injury, that those who put lives at risk through grossly negligent driving can expect to receive heavy penalties influenced by the sentencing principle of general deterrence. In such circumstances, sound prospects of rehabilitation will not lead to any significant amelioration of the prominence of general deterrence in the sentencing process. Denunciation and general deterrence must be at the forefront of the sentencing synthesis.[1]

13 The manifest excess ground also related to some of the matters addressed in a proposed new ground of appeal which was in these terms:

1. in light of the fresh evidence of -
   1. the significance of the appellant's epilepsy to his mental state at the time of the offending and the time of sentence; and

b. difficulties in his treatment in custody-

the sentencing discretion is reopened and the appellant should be resentenced according to law.

15 On 23 October 2009 the appellant had applied for bail pending the hearing of the appeal. The court ordered that the applicant file and serve any proposed amendment to the grounds of appeal and any further affidavit by 13 November 2009. Unfortunately matters were left to the morning of the hearing of this appeal. No new affidavit was filed. The additional material now sought to be relied upon consisted of three documents:

1. An affidavit of Olinka Ondrik originally relied upon in support of the application for bail. Ms Ondrik deposed in the affidavit that the psychological condition of the appellant was deteriorating whilst in custody. Reliance was placed upon a report of Mr Jeffrey Cummins, a clinical and forensic psychologist. In addition, Ms Ondrik deposed that the appellant had not been provided with anti-depressant medication or Valium whilst in custody from approximately 5 September 2009. She also deposed that his seizures have continued and since he ceased being provided with particular medication, Venaxlin and Valium, he suffered two seizures over night on 7 September 2009.

2. A letter forwarded to the Deputy Registrar of the Court of Appeal by Dr Eugenie Tuck, Medical Officer, St Vincent's Correctional Health Service.

3. A letter concerning the applicant from Professor S Berkovic dated 23 July 2009.

16 In the report of Mr Cummins, who saw the appellant post-sentence on 29 August 2009, he assessed the appellant as suffering from a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood (DSM-IV-TR, Code 309.28) related to his epilepsy. Mr Cummins opined that the condition existed prior to the appellant's involvement in the offending on 15 December 2007. Mr Cummins went on to express the opinion that the Adjustment Disorder was exacerbated as a result of the appellant's involvement in the accident, the fact he caused serious injury to another person and, also, that he was charged with criminal offences. Mr Cummins concluded that the appellant should be receiving ongoing and regular psychological and psychiatric treatment and stated his understanding that the appellant is not receiving appropriate medical treatment.

17 In her letter to the Deputy Registrar Dr Tuck set out, as at 8 September 2009, a detailed chronology of the treatment of the appellant whilst in custody. She outlined the seizure episodes suffered by the appellant and the medication prescribed. Ultimately a series of medical appointments were arranged in September but some he elected not to attend.

18 The third and remaining document was an updated report by Professor Berkovic. The Professor has seen the appellant since 2004. He previously noted that the appellant suffered "quite severe epilepsy" and noted that he would be likely to remain approximately the same and continue to be troubled by seizures. The first report of Professor Berkovic was before the judge on the plea. On the hearing of this appeal an updated letter of 23 July 2009 by Professor Berkovic to the solicitors for the appellant was sought to be relied upon. He noted that the appellant's epilepsy falls into the severe and intractable category. The professor observed that for optimum medical treatment the medication needed to be taken regularly at the same time each day. He also observed that stress plays a major role in most patients with epilepsy and expected it would be so with the appellant. Professor Berkovic observed "his incarceration is stressful but appropriate means should be taken to minimise any extra stress for optimal control of his seizures." Professor Berkovic offered to speak to the medical officers supervising the care of the appellant in custody.

19 In R v Duy Duc Nguyen the principles relating to fresh evidence were conveniently summarised:

It is common ground that this Court may, in limited circumstances - sometimes described as "rare and exceptional" - permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:

(i) the new evidence must relate to events which have occurred since the sentence was imposed;

(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;

(iii) the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;

(iv) the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;

(v) upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and

(vi) the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.[2]

20 It had been submitted on the plea that any term of imprisonment would be much more onerous for the appellant because of his chronic epilepsy. The sentencing judge was told that the frequency and severity of his epileptic fits was likely to increase as a consequence of the stress of incarceration. Counsel acknowledged that the additional evidence of the extent of his fits in prison was no more than the 'playing out' of facts that had been taken into account by the sentencing judge. It is not fresh evidence.

21 As observed already, the additional evidence also disclosed that the appellant was suffering from an adjustment disorder and depression prior to his offending and at the time sentence. Neither of these conditions were mentioned to the sentencing judge on the plea. This is probably because, as counsel for the appellant accepted, they were not then of any particular severity. The new evidence showed that since the sentence his depression and adjustment disorder has increased in severity as a consequence of his imprisonment so demonstrating the true significance of facts in existence at the time of the sentence.

22 Senior counsel for the Director did not object to the tendering of the additional evidence. In our view the evidence now available as to the severity of the appellant's level of depression and the adjustment disorder does constitute 'fresh evidence'. He submitted that it should not be taken into account so as to mitigate the sentence that was imposed.

23 Ordinarily where an offender suffers from a mental illness or disorder at the date of sentence or in re-sentencing on an appeal, the sentencing court may have to make an allowance in the sentence, if it is determined that by virtue of that illness or disorder the offender is not an appropriate vehicle for general deterrence.[3] Specific deterrence may also have to be moderated. That said, a reduction on those grounds[4] may not be required where the supervening condition arises because of the offender's reaction to a custodial sentence.[5] Thus the increased severity of his epilepsy, depression and adjustment order does not require that he be viewed as an inappropriate vehicle for general or specific deterrence.

24 Ordinarily an offender's mental or physical condition has to be taken into account if it will make the serving of a term of imprisonment more onerous for that offender. The offender should receive their full measure as a mitigating factor in the instinctive synthesis, even though the condition arises as a consequence of the offending conduct.[6] That said, the weight to be given to these considerations will vary. In the present case we do not consider that it should be afforded significant weight.

25 In choosing to drive, the appellant disregarded the substantial risk of an epileptic fit. The plea disclosed that he had been doing so for some time in knowing disregard of the risks. The sentencing judge was told that he would pull over to the side of the road, when he felt a fit coming on, as he had done on this occasion. His willingness to undertake the risks associated with driving in that condition significantly increased his moral culpability. The sentencing judge, in careful reasons, rightly concluded that this was an aggravating circumstance that increased the objective gravity of the offending conduct. Ironically the appellant now seeks to mitigate his sentence by placing reliance upon the very condition which he chose to disregard. He submits that the nature and severity of his 'fits' in prison, and its exacerbation of his depressive illness and adjustment disorder, have made his sentence much more burdensome for him. Leaving to one side the moral contradiction in this approach, to mitigate the sentence to any appreciable degree because his imprisonment will be more onerous, will not serve the sentencing ends which must be achieved in the present case. The sentence must reflect the appellant's increased moral culpability and the need to deter people from driving who suffer from medical conditions which grossly impair their capacity to drive in a safe manner. The hardship to the appellant, while remaining a proper matter to take into account in the exercise of the sentencing discretion must not lead to the displacement of other important sentencing considerations[7]. Where an offender whose judgment is not impaired, makes the choice to drive when he suffers from a disability which will expose him and others on the road to high risk of injury or death, and that risk eventuates, it cannot be expected that the sentence will generally make any substantial allowance for the fact that the disability will make the sentence more burdensome.

26 Before finally disposing of this point comment should be made about the observations of the psychologist, Mr Cummins, with respect to the level of remorse of the appellant. Mr Cummins observed that the appellant presented as being very remorseful 'even though he struggles to understand why he was not told by medical specialists that he was categorically not permitted to drive a motor vehicle given the nature of his epilepsy.' The statement is unfortunate as the topic of remorse was acknowledged in the course of the reasons of the sentencing judge. It now appears that at best the remorse of the appellant is qualified.

27 We do not accept the contention that the appellant is not receiving appropriate medical treatment or medication. It is apparent from the letter of Dr Tuck that the appellant is receiving medical treatment. There is no evidence contrary to the matters she describes.

28 In our view the sentence imposed was one that was reasonably open. The ground that it was manifestly excessive has not been made out. As we are not persuaded that a different sentence should have been passed, we would dismiss the appeal.

[1] [2006] VSCA 148; (2006) 163 A Crim R 322, [35].

[2] R v Duy Duc Nguyen [2006] VSCA 184 [36] (citations omitted).

[3] See propositions 3 and 4 in R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[5] R v RLP [2009] VSCA 271, [26].

[6] R v RLP [2009] VSCA 271, [31] (proposition 5 in Verdins).

[7] DPP v Solomon [2002] VSCA 106, [19].