R v Healey [2008] VSCA 132

Ms S Ward, Acting Solicitor for Public Prosecutions

2 The appellant, Brendon Healey, pleaded guilty to four counts of negligently causing serious injury (counts 1 to 4) under s 24 of the Crimes Act 1958. He also pleaded guilty to two summary offences: one count of driving a motor vehicle while more than the prescribed concentration of alcohol was present in his blood[1] (the '.05 offence') and one count of exceeding the speed limit.[2] After hearing a plea in mitigation, the learned judge below sentenced him as follows:

• three years and six months' imprisonment on each of counts 1, 2 and 3;

• on the offence of exceeding the speed limit, a fine of $300.

3 His Honour ordered that twelve months of the sentences imposed on counts 2 and 3 and six months of the sentence imposed on count 4 be served cumulatively on each other and on the sentence imposed on count 1, resulting in a total effective sentence of six years' imprisonment, and fixed a non-parole period of four years and six months. In relation to these counts, his Honour made orders cancelling the appellant's licence to drive a motor vehicle and disqualifying him from obtaining a licence in Victoria for a period of four years, under s 89(1)(B) of the Sentencing Act 1991.

4 His Honour also made orders cancelling the appellant's licence and disqualifying him from obtaining a licence for specified periods,[3] consequent on the

summary offence convictions. His Honour ordered that the various licence disqualification periods which he had imposed should run concurrently.

5 The offences occurred in the following circumstances. On the evening of 7 October 2003 Elissa Wilkie, her mother, Jennifer Cowell, her grandmother, Valda Bathman, and her 7 year old daughter, Jordynne Wilkie, flew from Brisbane to Melbourne after attending a family wedding. They collected Ms Wilkie's vehicle in Mickleham Road, Tullamarine, and drove to Donnybrook Road, where they turned right. Ms Wilkie's mother was sitting in the rear right passenger seat and her daughter was sitting next to her. Ms Wilkie's grandmother was sitting in the front passenger seat.

6 The collision occurred at approximately 11.00 pm. The learned sentencing judge referred to the contents of Ms Wilkie's statement as follows.

I had been driving approximately 15 to 20 minutes and had not long turned into Donnybrook Road when I saw a set of headlights coming towards me. I saw the headlights of the oncoming car [were] swerving all over the road from one side of the roadway to the other side of the roadway. When I saw the headlights all over the road I thought to myself "Oh my God, what will I do?" I then said to mum, "There's a car coming at me and it's all over the road. What should I do?" Mum who I think was half asleep said "just get out of his way". Moments after Mum told me to get out of his way I just remember a big bang and we crashed.[4]

7 Senior Constable Lalor, who inspected the scene and the vehicles and took measurements, formed the opinion that:

At a point approximately 750 metres east of the intersection of Mickleham Road, Healey was travelling west in the eastbound lane on the wrong side of the road. He then started to veer to his left and moved back towards the westbound lane. Ms Wilkie reacted to Healey's erratic driving by moving towards the centre of the carriageway. At this point the front driver's side of Healey's vehicle collided with the front driver's side of Wilkie's vehicle.[5]

The photographs that have been tendered in this case demonstrate that it is a miracle that all the passengers and the drivers escaped death. The vehicles are almost totally destroyed.[6]

9 Ms Wilkie, her mother and her grandmother received very serious injuries in the crash. Ms Wilkie, who was then 29, was taken to the Royal Melbourne Hospital, underwent surgery and was treated in the Intensive Care Unit. She received lacerations to her left kidney, liver and knees, a fractured pelvis, ribs and kneecaps, lung contusion, a right haemopneumothorax, bleeding from her spleen and left foot fractures.

10 Valda Bathman, who was aged 73 at the time of the accident, suffered a severe laceration to her right arm, fractured bones in her neck and extensive bruising. Since the collision she has had to use a walking stick.

11 Jennifer Cowell, then aged 49, received a closed head injury, blunt injury to the abdomen, three fractured vertebrae, a fractured pelvis, fractures to the femur of both her left and right arms, a fracture of her right ulna, dislocation of her clavicular joint, and two fractured ribs.

12 Jordynne Wilkie, aged 7, was not as seriously injured as other family members and spent five days in the Royal Children's Hospital. She fractured her left clavicle and received blunt abdominal trauma, cuts and scratches.

13 Each of the victims made victim impact statements. All except Jordynne have serious long term effects from their injuries. At the time of sentencing, Jennifer Cowell said that she would have to have four further operations to remove rods from her right and left femurs, to reconstruct her right and left knee and would be required to undergo extensive rehabilitation after each procedure.

14 The appellant, who was aged 26 when he was sentenced, also suffered significant injuries in the accident, which I describe later in this judgment.

15 His Honour found that between 6.00 pm and 9.30 pm the appellant had been drinking with his housemate, Rodney Smith. Smith, in his police statement, said that he had consumed alcohol with the appellant and that, in his opinion, the appellant was not fit to be driving due to the amount of alcohol he had had to drink.[7]

16 After the collision the appellant was taken by ambulance to the Royal Melbourne Hospital. An analysis of a blood sample taken at the hospital detected a blood alcohol level of 0.105 grams of alcohol per 100 millilitres of blood. It was estimated that the appellant's blood alcohol concentration at the time of the collision was between 0.103 and 0.193 percent. Some cannabis was also detected in the appellant's blood. Dr David Wells of the Victorian Institute of Forensic Medicine reported that

it would be reasonable to assume that the subject has consumed cannabis in the recent past, but this could not be considered to have an influence on driving skills.

17 A police reconstruction of the collision estimated that the appellant's car was travelling at a speed of between 109 and 118 kilometres per hour at the time of the collision, and that the victims' car was travelling at a speed of between 55 and 90 kilometres per hour. The speed limit in the relevant part of Donnybrook Road was 100 kilometres per hour. There is no street lighting in Donnybrook Road, so it was dark, but the weather was fine, the road was dry and traffic was light.

18 The appellant had previously lived in New Zealand, but came to Australia in December 2002. Three days before the accident on 7 October 2003, he was charged with recklessly causing serious injury and escaping, as a result of events occurring in a night club. He was on bail for these offences when the car accident occurred.

19 In November 2003, following the appellant's release from hospital after the car accident, he returned to his parents in New Zealand. In New Zealand he was charged with burglary and attempted injury and bailed. He returned to Australia on 23 June 2006 and was arrested shortly afterwards.

20 In sentencing the appellant the learned sentencing judge referred to his 'long history of alcohol abuse which commenced when he was 15 or 16'.[8] His Honour took account of a psychological report provided by Mr Ian Joblin which indicated that the appellant had a serious history of alcohol abuse, that he had received rehabilitation treatment in New Zealand prior to coming to Australia, but had continued to drink alcohol even after the collision, that the appellant used cannabis regularly and had used ecstasy in the second half of 2003 whilst in Australia and that he had some residual medical problems as a result of the accident. His Honour noted Mr Joblin's opinion that the appellant was remorseful.

21 His Honour said that factors which should be taken into account in the appellant's favour included his plea of guilty, his skill as a concreter and good history of employment, the fact that he had some family support and the fact that he was attending AA whilst in custody.

22 His Honour took account of the appellant's nine convictions from eight court appearances between 1997 and 2003, which included convictions for assault, driving at a dangerous speed, injuring recklessly, failing to stop to ascertain injury and operating a vehicle recklessly.[9] He noted that the appellant's conviction in 2000 for injuring recklessly and failing to stop to ascertain injury arose out of an incident in which the appellant had hit a cyclist and driven on, although he had subsequently given himself up after he had become aware that someone had been injured. The appellant had received a six month sentence for the reckless injury offence, which was wholly suspended for two years. His Honour also referred to the appellant's January 2003 conviction for operating a vehicle carelessly, which arose out of another vehicle collision.

23 His Honour found that, although the appellant had expressed his remorse to Mr Joblin, he was not genuinely remorseful. This was indicated by the fact that he made no enquiries as to the injuries suffered by the victims before he left Australia for New Zealand.

24 His Honour said that the appellant had 'a clear capacity for extreme violence and [was] a menace on the roads when [he was] affected by alcohol'.[10] His Honour said that he was satisfied beyond reasonable doubt that the appellant had made a decision to drive his motor vehicle knowing he had been drinking and of the effect that alcohol had upon him. In these circumstances the appellant's moral culpability was 'of the highest order'.[11]

25 His Honour concluded that the appellant had little prospect of rehabilitation whilst his alcohol abuse remained out of control and that he was 'an alcoholic who [had] a blatant disregard for the rights of innocent road users'.[12] He said that weight must be given to specific deterrence, because of the high risk that the appellant would re-offend in a similar way and the need to protect the community. General deterrence was also 'a primary consideration'.[13] His Honour sentenced the appellant as set out above, having regard to these matters and to the serious impact of the accident on the four victims.

1. The learned sentencing judge erred by convicting the appellant on the charges of:

(a) driving whilst exceeding the prescribed concentration of alcohol; and

and, by so doing, subjected the appellant to double punishment.

(a) not alerting Counsel on the plea to the fact that the judge desired formal proof of the appellant's account; and

(b) by reason of (a), failing adequately or at all to accord the appellant procedural fairness

before rejecting his account of the events that led to his driving negligently on the night of his offending.

1. The learned sentencing judge's discretion ought to be re-exercised by this Court as a consequence of the deterioration of the appellant's ill health subsequent to his having been sentenced. In particular, the sentencing discretion ought to be re-exercised by reason of:

(a) fresh evidence relating to the appellant's ill health;

(b) further and alternatively to (a), evidence of events occurring subsequent to sentence which are relevant to an appreciation of the true significance of facts which were in existence at the time of sentence; and

(c) its being necessary to avoid a miscarriage of justice.

27 Before the appellant was arraigned the learned judge and counsel for the prosecution discussed whether it was appropriate to uplift the two summary charges and to sentence the appellant for these offences. The learned judge asked counsel why these charges were not 'part and parcel of the presentment counts'. Counsel for the Crown said that the defence had agreed that these matters should be resolved at the same time and that:

on one view...[these charges were] subsumed within the counts on the presentment. On another view, there is separate offending, they are summary offences and they give rise to different penalties and orders as to licence which may be peculiar in a driving case such as this.

No authorities on the double punishment issue were cited to his Honour.

28 At the hearing of the appeal counsel for the appellant submitted that the elements of the summary offences of which the appellant was convicted and sentenced provided the basis for his convictions on counts 1 to 4. Because the learned judge recorded convictions on these charges and also fined the appellant on each of them, he was doubly punished. Counsel for the Crown conceded that there was double punishment in the circumstances of this case.

29 Under s 51(1) of the Interpretation of Legislation Act 1984

(1) Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission.

30 In R v Audino[14] this Court held that a woman who had pleaded guilty to a count of culpable driving defined by s 318(2)(c) of the Crimes Act 1958 should not also have been convicted of the offence of driving with more than the prescribed concentration of alcohol in the blood. To convict the appellant of the summary offence amounted to double punishment, because her culpable driving conviction was based on the fact that she was driving a motor vehicle whilst under the influence of alcohol to such an extent that she was incapable of having proper control of the car. Maxwell P, who delivered the main judgment, said that if it had been necessary to decide the question he would not have regarded it as double punishment for the appellant to be convicted of driving while disqualified, since there was 'no common element between that offence and the offence of causing death by culpable driving'.[15]

31 In this case there is an overlap between the criminal conduct which provided the basis for the appellant's conviction on the four counts of negligently causing serious injury and the basis of his conviction of the summary offences. In Pearce v R[16] McHugh, Hayne and Callinan JJ said that it was not always straightforward to determine whether a single act was common to two offences, but the question should be approached as a matter of commonsense and not attended by 'excessive subtleties and refinements'.[17]

32 The Crown opening summarising the facts for the purposes of sentencing the appellant on counts 1 to 4 referred to three factual bases for the appellant's conviction on counts 1 to 4: the appellant veered on to the wrong side of the road, his blood alcohol concentration substantially exceeded the .05 limit and would have impaired his driving skills, and he was exceeding the speed limit when he collided with the victims' car. In my opinion the Crown concession that the appellant was doubly punished for the same acts was appropriately made and should be accepted, despite the fact that the appellant pleaded guilty to the summary offences.

an accused person who has pleaded guilty to an offence in the court below is, in rare circumstances, entitled to appeal against the conviction recorded if he can demonstrate to the appellate court that the offence or offences to which he pleaded guilty were offences for which he could not lawfully be convicted.[19]

34 The sentencing judge received no assistance from counsel on the double punishment issue. As a result, the appellant was convicted of summary offences of which he could not lawfully have been convicted. The convictions on the summary offences should therefore be set aside. Counsel for the Crown conceded that the appellant should be given leave to file a notice of appeal against conviction for the summary offences out of time, in order to permit such an order to be made.[20] The Court then granted such leave.

The effect of setting aside the convictions on the summary offences

35 Counsel for the appellant submitted that the effect of setting aside the convictions on the summary offences was to re-open the sentencing discretion. This was the approach taken by the Court of Appeal in R v Audino.

36 In that case it was unnecessary for the Court to decide whether the fact that the appellant had been convicted of both culpable driving and of the summary offence of driving while exceeding the prescribed blood alcohol limit would have been sufficient, of itself, to reopen the sentencing discretion on the culpable driving count, because the appellant made out other sentencing errors.

37 In this case counsel representing the Crown submitted that the learned judge had undertaken discrete sentencing processes in relation to the indictable and summary offences. In those circumstances he submitted that the sentencing discretion was not re-opened solely because the appellant had succeeded on ground 1.

38 In my view that submission should be accepted. His Honour's sentencing reasons dealt first with the sentences to be imposed on counts 1 to 4 and then dealt with the summary offences. It cannot be said that any issue of totality arises as a result of the imposition of fines for the summary offences. It is therefore necessary to consider whether the other grounds of appeal are made out.

39 I have already referred to the psychological assessment by Mr Ian Joblin. Mr Joblin's report dated 9 February 2007 described matters affecting the appellant before the accident as follows.

I had noted above that Mr Healey was convicted for an assault that occurred a few days prior to the accident for which he is before this Court. It seems that just before that assault he had been speaking with his mother via telephone from New Zealand and she had indicated to him that his father had assaulted her two months before. Mr Healey reported that he was upset not only because of his father's aggression towards his mother but also because she had not told him about it over those two months. Mr Healey reported that he was angry and irritated as a result.

It seems that his father, in recognising the problems he had with alcohol and aggression, decided to suicide and was found hanging in a tree on his property. Mr Healey reported that his mother apparently had to hold him when she found him and called the police.

Mr Healey reported that in 2002 just before his return to Australia, a friend of his, who apparently had been a law student, committed suicide. The incident with his father rekindled the memory of that for Mr Healey.

As indicated in my previous report, on the night of the accident in Melbourne he had had some problems with the people with whom he was living in Wallan. He also had an argument with his girlfriend. Mr Healey reported that he had also had a telephone conversation with his father, telling him about the assault that had occurred four days before. He reported that there was then a significant argument between him and his father over the telephone. That in my opinion was of some significance in terms of his psychological state including his drinking around the time of the accident.

Your counsel informed the court that alcohol played a part in all of the above matters. According to Mr Joblin you were well aware of your alcohol problem and the effect alcohol has on you. You have, in my view, a clear capacity for extreme violence and you are a menace on the roads when you are affected by alcohol. Your counsel put to the court that you were drinking on [the] occasion of the current offending, that you had had an argument with the person that you live with. That you had had an argument with your father over the phone and that you had received a text message from your girlfriend, ending a relationship.

Your counsel has not placed any evidence before this court to establish any of these matters on the balance of probabilities. He is only able to put his instructions and also refer to what you told Mr Joblin during the course of the assessment process.

On the material available to the court I am not satisfied, on the balance of probabilities, that you [decided] to drive a motor vehicle because of the matters raised by counsel as listed above.

I am satisfied, beyond reasonable doubt, (a) that you had been drinking before you drove your motor vehicle, (b) that you made a decision to drive your motor vehicle, knowing you had been drinking and were affected by alcohol, (c) that you were well aware that you were an alcoholic and the effect that alcohol has on you. In my view, your moral culpability is of the highest order and deserves condemnation by this court.[21]

41 Counsel for the appellant submitted that his Honour's reasons showed that, if he had accepted that the appellant drove because he was upset by the arguments in which he was involved on the evening before the accident, he would have regarded this a matter reducing the appellant's moral culpability. Counsel submitted that his Honour should therefore have warned defence counsel that he was not prepared to accept Mr Joblin's report or defence counsel's statement as to the reasons the appellant drove on the evening of the accident. Counsel submitted that his Honour's failure to give such a warning was a breach of procedural fairness, because if counsel had been aware that his Honour did not accept the statement he might have called witnesses to establish the mitigating circumstance relied upon by the appellant.

42 In support of this proposition counsel relied on the recent decision of this Court in R v Alexandridis.[22] In that case, this Court held that the failure of a sentencing judge to give an unrepresented offender the opportunity to adduce evidence or make submissions that he had been provoked when he slashed a victim's face was a denial of procedural fairness. The sentencing judge had said that he would assume, without making a finding on the matter, that the victim had acted in the manner alleged by the offender, but did not treat it as mitigatory.

43 Counsel for the Crown in that case submitted that the process was not unfair to the appellant, because if the appellant had given evidence of the alleged provocation, the Crown would have called evidence contradicting that claim, including evidence from the victim denying the facts relied upon by the offender as the basis for claiming that he had been provoked. Redlich JA, who delivered the main judgment, rejected this submission, commenting that it misconceived the consequences of a denial of procedural fairness. He said:[23]

Once the possibility is accepted that there could have been a different outcome if there had not been a denial of justice, and that at least appears implicit from the respondent's submission, relief will not be refused unless it can be shown that it would be futile to grant a new hearing as the same outcome would be inevitable.[24] If the appellant gave evidence in accordance with what he had told his Honour during the plea, it was not inevitable that no mitigatory circumstances would have been established.

44 In R v Storey[25] this Court accepted the long-standing practice under which sentencing judges normally rely on statements made by counsel from the bar table, while accepting that there will be some cases 'in which there will be significant disputes of fact that can be resolved only by the calling of appropriate evidence'.[26] It will normally be obvious when this is the case, either because the counsel for the Crown has contested a fact on which an offender relies in mitigation, or the offender's counsel has submitted that facts relied upon by the Crown should not be taken into account as circumstances aggravating the gravity of the offending.

45 There may be some cases where the judge's failure to alert defence counsel of his or her intention to draw inferences adverse to the defendant, unless the defendant calls additional evidence, is a breach of procedural fairness. Such a situation arose in R v Mielicki,[27] where the sentencing judge took account of aggravating factors based on facts in depositions which were not included in the agreed statement of facts which provided the basis for the defendant's guilty plea. It was held that the sentencing judge's failure to warn the defendant's counsel of what he intended to do amounted to a breach of procedural fairness, because it had prevented the defendant from disputing those facts, or considering whether his guilty plea should be withdrawn.

46 This is not a case where the judge found that aggravating factors were established beyond reasonable doubt, without giving the offender an opportunity to make submissions on matters falling outside the agreed statement of facts. In a situation such as this, where defence counsel puts forward factors said to go in mitigation and the Crown makes no submissions on that matter, I would be reluctant to take the view that a sentencing judge has an obligation to warn counsel that he or she is considering the possibility of finding that those factors are not established on the balance of probabilities. Defence counsel has a forensic choice as to whether the offender or other witnesses should be called. It seems to me that it would be excessively onerous to require a judge to give a warning of this kind in all plea hearings in which a judge considers that facts relied upon in mitigation are not established on the balance of probabilities.

47 In my opinion R v Alexandridis does not stand for that principle. Rather, it turned on the fact that an unrepresented offender, who was said by his counsel on appeal to have had 'severe mental health issues' at the time the offence was committed, was not invited by the judge to give evidence on a matter which was clearly relevant to the exercise of the sentencing discretion.

48 In this case, by contrast, the offender was represented and was not deprived of the opportunity to give evidence. Defence counsel could have called the offender, or other witnesses if he considered it appropriate to do so.

49 Even if I am wrongly of that view, I do not consider that ground 2 is made out. His Honour's reasons show that he would not have regarded the appellant's culpability as reduced even if he had accepted the matters asserted by counsel and referred to in Mr Joblin's report. Paragraph [41] of his Honour's reasons referred first to the fact that the appellant was 'a menace on the roads' when drunk. His Honour then set out counsel's submissions as to the reasons why the appellant had driven on the evening of the accident and said that he did not accept them. In paragraph [44] of his reasons his Honour then listed the factors which he regarded as relevant to the appellant's culpability. In my view, even if his Honour had accepted defence counsel's submission about the reasons that the appellant had driven at excessive speed, while drunk, he would not have regarded this as reducing the appellant's culpability for knowingly doing so.

50 In Clark v Ryan & Anor[28] Habersberger AJA (with whom Warren CJ and Ashley JA agreed) accepted the appellant's submission that:

The authorities establish that once a breach of procedural fairness is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome and that such a situation will be a rarity.[29]

51 Assuming, contrary to my view, that there was a breach of procedural fairness, I consider that this is one of the rare situations in which the breach 'could not possibly have produced a different result'.[30] For these reasons I would reject ground 2.

52 The third ground of appeal contends that this Court should re-sentence the appellant because new evidence shows that there has been a serious deterioration in the appellant's health since he was sentenced. Counsel for the appellant submitted that the effect of this deterioration was to make imprisonment more burdensome for the appellant because of his state of health.

53 It is trite law that the ill-health of an offender can be taken into account in mitigation of sentence when imprisonment will be a greater burden because of ill-health or because imprisonment will have a gravely adverse effect on the offender's health.[31] However evidence relating to events which have occurred since a sentence was imposed is only admissible in support of an appeal against sentence in 'rare and exceptional circumstances'.[32] The principles governing the admission of new evidence were helpfully summarised by Redlich JA in R v Duy Duc Nguyen as follows:[33]

(i) the new evidence must relate to events which have occurred since the sentence was imposed;[34]

(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;[35]

(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;[36]

(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;[37]

(v) upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error,[38] 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.[39]

54 During the plea hearing the learned sentencing judge had before him a report dated 30 January 2006 from Dr Philip Baker, a neurologist who saw the appellant in New Zealand, after the appellant had been admitted to hospital as the result of being hit on the head during a fight. Dr Baker referred to Mr Healey's injuries in the car accident and said that Mr Healey had minor problems with memory, short-lived but intense pain in the front of the head about once a month and photophobia, but that he did not appear to have any problems relating to his mild hydrocephalus. He said that the appellant's 'co-ordination and gait [were] unremarkable and he [could] walk heel to toe'.

55 His Honour also had before him a report from Dr Ric Milner, Medical Officer at the St Vincent's Hospital Correctional Service, dated 19 February 2007 (two days before the appellant was sentenced). This said that Mr Healey had hydrocephalus causing headaches and difficulty sleeping and was being successfully treated with medication to prevent seizures. Reference was also made to the appellant's right femur fracture which had healed with some deformity, causing him some pain in walking.

56 In discussion with counsel his Honour asked whether the injuries should be taken into account in sentencing the offender. Counsel said that although he had some on-going difficulties it was not put that the offender's injuries were so severe that he 'would do his time harder than the average prisoner'. He also said that Mr Healey had volunteered his services as a concreter while in prison, but the authorities had not taken this up and he was working in the metal industry.

57 In his reasons, his Honour mentioned 'the residual medical problems'[40] to which Mr Milner referred.

58 In addition his Honour said that the appellant '[had] made good recovery from the injuries sustained and [was] unable to carry out hard physical work'.[41] It appears that this remark was inaccurately transcribed. There are two ways in which it could be interpreted. Either the word 'and' should read 'but' or, as counsel for the appellant contended, the word 'unable' should be read as 'able'. The discussion between his Honour and counsel suggests that the latter interpretation, which is more favourable to the appellant, should be accepted.

59 Counsel for the appellant relied on a report prepared by neuropsychologist Susan Lloyd, on outpatient records from St Vincent's Hospital and on prison medical records, as evidence demonstrating the true significance of the brain injury from which the appellant was suffering at the time of sentencing.

60 Most of the outpatient records can be disregarded because almost all of them relate to the period before Mr Healey was sentenced[42] and in any case add little to the reports mentioned above. Records kept by Pacific Shores Health Care, which provides health services to prisoners, refer to the appellant's moderate hydrocephalus and record that he continues to report suffering regular headaches and dizziness. On 14 April this year he reported that he was suffering stress due to his poor memory.

61 A report dated 20 May 2008 from Dr Damien Cleeve of Bendigo Radiology says that he has reviewed previous reports from St Vincent's Hospital, that the appellant suffers from moderate hydrocephalus and that 'there has been no change compared with Cerebral CT study performed today'.

62 Counsel for the appellant relied mainly on Ms Susan Lloyd's report, dated 19 December 2007, as evidence of the appellant's condition. Ms Lloyd summarises his situation as follows:

Mr Healey is 27-year-old gentleman referred for neuropsychological opinion to ascertain the nature of his cognitive deficits, as a consequence of his reported traumatic brain injury and associated moderate hydrocephalus. Additionally, colouring his presentation is a history of polysubstance abuse dating back to his early adolescent years. Against his estimated low average to average premorbid level of general intellectual ability a pattern of mild to marked deficits are evident. He demonstrates variable attentional abilities and reduced concentration, which typically results in the omission of details and increased distractibility . Additionally, his ability to quickly apprehend and respond to incoming information or process multiple streams of information at the one time is reduced. These difficulties subsequently impact on his capacity to acquire new information, particularly if it is presented in a lengthy or overly detailed manner. However, a pattern of deterioration over time in his recall is not evident, which suggests what information he does acquire he does not tend to forget. Additionally, his acquisition and recall of information is further enhanced if he is provided with cues and prompts or forced choice recognition options. Executive abilities are generally with low average to average limits, however there is evidence of concreteness in his verbal thought processes with a reduced ability to readily see alternatives.

The nature of Mr Healey's difficulties could be seen as reflective of his mild to moderate traumatic brain injury, however complicating his presentation is the presence of his moderate hydrocephalus, with mild to marked memory disturbance, psychomotor slowing, difficulty thinking and reduced spontaneity some of the clinical features associated with hydrocephalus. With regards to possible improvement in cognition, the treatment response in cases of hydrocephalus following head injury is governed by the degree and severity of the head injury, as such given he has sustained a mild to moderate brain injury if his hydrocephalus is treated there may well be some amelioration of his current deficits. However, as indicated earlier, adding to this is his history of polysubstance abuse, which dates back to his early teenage years, a time where brain structures [and] central nervous system structures are still developing. Additionally, likely compounding his difficulties are possible medication side effects and his current mood state with him acknowledging a moderate level of depressive symptomatology.

63 Mr Healey has suffered seizures in the past. However his counsel confirmed that these have ceased. Nevertheless counsel submitted that imprisonment has

become more burdensome to the appellant because of a deterioration in his physical condition and cognitive capacity. It was submitted that because of his physical disability the appellant has been unable to continue doing manual work for which he is qualified and is therefore 'forced' to study, despite the stress caused by his cognitive problems. The Court has been provided with certificates relating to various courses and programs completed by Mr Healey, including certificates of completion of courses on occupational health and safety, and drug and alcohol treatment. He is currently enrolled in courses at TAFE.

64 In my opinion there are no exceptional circumstances justifying the admission of new evidence to show the true significance of facts in existence at the time of the sentence. There is little evidence of adverse change in the appellant's cognitive abilities since he was sentenced. Even if it were accepted that the true significance of the appellant's physical condition and cognitive capacity has only become apparent after sentence, there is no evidence that these matters have made imprisonment more burdensome to him, or that his physical or mental state will be gravely affected by his imprisonment. I do not accept counsel's submission that it is more burdensome for the appellant to be involved in study than in physical work, even if his cognitive impairment makes his study more difficult. Ms Lloyd's report suggests ways of assisting Mr Healey to deal with these problems, which his counsel says have been drawn to the attention of his TAFE lecturers. The third ground of appeal is not made out.

65 I would therefore dismiss Mr Healey's appeal against sentence.

[1] Road Safety Act 1986, s 49(1)(b).

[3] A disqualification period of 10 months was imposed in relation to the .05 offence conviction and of 6 months for the conviction for exceeding the speed limit.

[9] These are references to offences committed in New Zealand.

[13] Reasons [48]. His Honour referred to R v Garry [2006] VSCA 149, [35].

[14] [2007] VSCA 318.

[15] Ibid [19]. See also Pearce v R (1998) 194 CLR 610; R v Ahmed [2007] VSCA 270; R v Orgill [2007] VSCA 236, [17] (Redlich JA).

[18] [2002] VSCA 54; (2002) 4 VR 355; see also R v El-Kotob [2002] VSCA 109; (2002) 4 VR 546.

[19] R v GJB [2002] VSCA 54; (2002) 4 VR 355, 362.

[20] Note that this approach was not taken in R v Audino [2007] VSCA 318, where the Court did not quash the appellant's conviction for driving with more than the prescribed concentration of alcohol in the blood, because the appellant did not appeal against that conviction. Instead, the Court treated this as a matter which re-opened the sentencing discretion. In R v El Kotob [2002] VSCA 109; (2002) 4 VR 546, the appellants did apply for an extension of time within which to seek leave to appeal against convictions relating to charges to which they had pleaded guilty. The Court (comprising Callaway JA and O'Bryan AJA; Vincent JA dissenting) refused the applications on the basis that the convictions that were the subject of the applications did not involve double punishment.

[22] [2008] VSCA 126.

[23] Ibid [19] (citation in original).

[24] Stead v Commonwealth Insurance Commission [1986] HCA 54; (1986) 161 CLR 141; Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181 [75], [80], [97].

[25] [1998] 1 VR 359.

[27] (1994) 73 A Crim R 72.

[28] [2005] VSCA 311.

[30] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 147; see also Re Refugee Tribunal and Anor ; ex parte AALA [2000] HCA 57; (2000) 204 CLR 82.

[31] R v Smith (1987) 44 SASR 587, 589 (King CJ); R v Eliasen [1991] 53 A Crim R 391; R v Van Boxtel [2005] VSCA 175; (2005) 11 VR 258, 266-267 (Callaway JA).

[32] R v Duy Duc Nguyen [2006] VSCA 184, [36].

[33] Ibid [36] (citations in original).

[34] R v Eliasen (1991) 52 A Crim R 391 at 394; R v Rostom [1996] VicRp 60; [1996] 2 VR 97 at 101; R v WEF [1998] 2 VR 385 at 388; R v Wooden [2006] VSCA 97 at [7].

[35] R v Smith (1987) 27 A Crim R 315; R v Eliasen at 394; R v Rostom at 99; R v WEF at 389; R v Holland [2002] VSCA 118; (2002) 134 A Crim R 451 at [2], [35]; R v McLachlan [2004] VSCA 87; (2004) 8 VR 403 at [10]; R v SH [2006] VSCA 83 at [9].

[36] R v Babic [1998] 2 VR 79 at 80, 82; R v McLachlan at [10]; R v WEF at 388.

[37] Knights v R (1993) 70 A Crim R 105 at 109-110; R v Maniades [1996] QCA 242; [1997] 1 Qd R 593 at 597; R v Ahmed [2005] VSCA 279 at [11].

[38] R v Ahmed at [18]; R v SH at [25]-[26].

[39] R v Eliasen, at 396; R v Rostom at 103; R v SH [2006] VSCA 83 at [25]. The reference to 'miscarriage of justice' is found in such cases as R v McLachlan at [10] and R v Ahmed at [11].

[42] One St Vincent's record is dated 23 February 2007, shortly after the appellant was sentenced and shows that he has headaches and has been booked for a CT scan. The person seeing him at the orthopaedic clinic records 'well, not sure why here'.