Andrews v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0232

JASON ANDREWS	Applicant
v
THE KING	Respondent

---

JUDGES:	McLEISH, BOYCE and KIDD JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 June 2025
DATE OF JUDGMENT:	26 August 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 197
JUDGMENT APPEALED FROM:	[2024] VCC 746 (Judge Gamble)

---

CRIMINAL LAW – Appeal – Conviction – Dangerous driving causing serious injury – Whether unfair plea and pressure to plead guilty – Whether full opportunity to plead case – No intention to drive dangerously – Grounds not reasonably arguable – Application for appeal bail refused – Application for extension of time to seek leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing serious injury – Sentence 3 years’ imprisonment with non‑parole period 2 years – Guilty plea – Maximum penalty 5 years’ imprisonment – Family hardship – Extended period of extremely risky driving – Severe and life changing injuries – Prior convictions for speeding and dangerous driving – Whether sentence manifestly excessive – Application for extension of time to seek leave to appeal refused.

Carabott v The King [2025] VSCA 118; Grimm v The King [2025] VSCA 11; Madafferi v The Queen [2021] VSCA 332; Mongan v The King [2024] VSCA 126; R v Nguyen [2006] VSCA 184, applied.

---

Counsel
Applicant:		In person
Respondent:		A French
Solicitors
Applicant:		Not applicable
Respondent:	A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

PART A:. INTRODUCTION
(1).... Circumstances of the offending
(2).... Sentencing remarks
(3).... Application for leave to appeal
PART B:. GROUNDS 1, 3 AND 4: CONVICTION
(1).... The principles of setting aside conviction after plea of guilty
(2).... The plea hearing
(3).... The applicant’s claim of involuntariness
(4).... Analysis of the applicant’s claim of involuntariness
(5).... The applicant’s claims of pressure and unfair treatment
(6).... Conclusion on conviction
PART C:. SENTENCE
(1).... The sentence was manifestly excessive
(2).... Ground 5: No medical report of [the applicant’s] health was ever done.
The parties’ arguments
Analysis

(3).... Ground 6: No compassion to [the applicant’s] grandmother who is an 88 year-old cancer patient.
The parties’ arguments
Analysis

PART D:. GROUND 2: BAIL
PART E:. CONCLUSION

MCLEISH JA

BOYCE JA
KIDD JA:

PART A:INTRODUCTION

The applicant pleaded guilty to the offence of dangerous driving causing serious injury. He was sentenced on 23 May 2024 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Dangerous driving causing serious injury (Crimes Act 1958 s 319(1A)	5 years	3 years	N/A
Total Effective Sentence:		3 years
Non-Parole Period:		2 years
Pre-sentence Detention Declared:		50 days
Section 6AAA Statement:		Total Effective Sentence 4 years Non-parole Period 3 years
Other Relevant Orders: 1. Cancellation of all Victorian licences and/or permits 2. Disqualification from obtaining any Victorian licence/permit for 30 months

The applicant, who is self-represented, now seeks leave to appeal against his conviction and sentence.
The application for leave to appeal was filed on 12 December 2024 and is therefore 25 weeks out of time.
As we will explain, none of the grounds of appeal have any substance. As it would be futile to grant an extension of time, the application for an extension of time will be refused.
(1)Circumstances of the offending
On the morning of 12 September 2022, the applicant was driving on a freeway from his residence. It was observed by other drivers that he was driving erratically, including oscillating at speed, slamming on his brakes for no apparent reason, drifting between (and sharply changing) lanes and driving along the emergency lane at speed. The applicant was seen looking ‘spaced’ and grinning. Approximately 15 minutes after he left his house, another driver called 000 to report the applicant’s registration details.
Elias Skandaliaris had pulled over into an emergency lane in his utility vehicle in order to resecure items on his roof racks. As he was doing so, the applicant drove into the emergency lane and collided with Mr Skandaliaris’s vehicle, ultimately pushing it on top of him.
The applicant was found to have been gradually increasing speed from 124 to 136 kilometres per hour between 5 seconds and 0.5 seconds before the impact. Taking into account that the applicant may have applied the brake in that last 0.5 of a second, he was sentenced upon the basis that the speed was between 109 and 141 kilometres per hour at the moment of collision.
Mr Skandaliaris was trapped under his vehicle and sustained life‑threatening injuries. Upon being freed and transported to hospital, he was placed into an induced coma and remained in hospital for around five weeks before being discharged to inpatient rehabilitation. His injuries included a traumatic brain injury, fractures of his spine, ribs, pelvis and lower limbs, and lacerations to his scalp and spleen. The sentencing judge referred to the victim impact statement in his Sentencing Reasons (‘Reasons’) and its description of Mr Skandaliaris’s significant physical and emotional damage, and reduction in quality of life, caused by the collision.[1] The statement demonstrated ‘the profound and long‑term impact that [the] offending has had and will continue to have’ on Mr Skandaliaris, who has an acquired brain injury impacting his memory, processing and speech, ongoing physical pain and is no longer able to work in his trade.[2]
[1]DPP v Andrews [2024] VCC 746 [26]–[29] (Judge Gamble) (‘Reasons’).
[2]Reasons, [29].
Preliminary breath and oral fluid tests undergone by the applicant following the collision produced negative results. However, blood samples taken later that morning identified diazepam (‘valium’) and nordiazepam (at lower than therapeutic levels) in his blood. It was accepted that these results were consistent with the applicant having taken valium prior to driving.[3] He later told police and medical personnel that he had also taken baclofen on the morning of the collision. The sentencing judge found that this was a possibility, despite the drug not being identified in the blood samples.
[3]Reasons, [17].
The applicant had been prescribed valium and baclofen for anxiety and to assist with his alcohol dependence. As we will explain, it was the applicant who relied upon the effects that this medication had upon him.
(2)Sentencing remarks
A significant sentencing discount was applicable given the early plea of guilty, both for its utilitarian benefit and as a demonstration of the applicant’s remorse.[4]
[4]Reasons, [35], [67].
A number of materials authored by medical professionals were filed evidencing the applicant’s history of serious drug abuse and mental health conditions, including anxiety, schizoaffective disorder and depression. The sentencing judge noted the evidence regarding the applicant being prescribed valium and baclofen to assist his withdrawal from alcohol and drug use. His Honour accepted that the applicant wanted to address his substance abuse issues and mental health problems and was satisfied that limb 5 of Verdins was engaged.[5]
[5]Reasons, [72], [74].
Mitigatory weight was also given to the applicant’s family circumstances. The judge found that custody would be more onerous for the applicant given his concern for his grandmother (who had lung cancer and for whom he was primary carer) and for his mother (who suffered from multiple sclerosis).[6]
[6]Reasons, [71].
The sentencing judge noted that the seriousness of this form of offending was ‘to be measured by reference to the degree of dangerousness of the driving and the severity of the serious injury sustained by the victim as a result of that driving’.[7] He considered the offending to be a ‘very serious example’, at the upper end of the spectrum of what was an ‘inherently serious’ crime.[8]
[7]Reasons, [88].
[8]Reasons, [76]–[77].
The sentencing judge found the dangerousness of the driving in question to be ‘very high’ in light of the applicant’s erratic conduct immediately prior to the collision, the ‘frightening speed’ at which he travelled into the emergency lane (‘which [he] had absolutely no right or reason to be in’), and other factors including the fact that the incident took place on a freeway, at a time when there were likely to have been many other people driving into work.[9] The severity of Mr Skandaliaris’s injuries was also assessed as ‘close to if not at the upper level of the range of serious injuries’, meeting the statutory definition.[10]
[9]Reasons, [91].
[10]Reasons, [92].
Moreover, the judge reasoned that the collision was likely to have been a product of the applicant’s experience of fatigue, confusion and impaired perception brought on by the medication he had taken, symptoms of which must have become apparent to him as he began driving.[11] As such, the fact that the applicant continued to drive despite the effects of the medication was a ‘disturbing feature of this case’ that ‘illuminate[d] [his] degree of moral culpability’.[12]
[11]Reasons, [82]–[84].
[12]Reasons, [84].
In these circumstances, general deterrence and denunciation were found to assume ‘considerable significance’ and significant punishment was justified.[13]
[13]Reasons, [95], [97].
The sentencing judge also had regard to the applicant’s ‘limited, somewhat aged, but nonetheless relevant criminal history’ of prior convictions for driving offences, including dangerous driving, speeding, driving while suspended and refusing to undergo assessment for driving impairment.[14] This criminal history, alongside the applicant’s history of serious and ongoing substance addiction, carrying the risk of relapse and repeat conduct of this nature, indicated the importance of specific deterrence and community protection.[15]
[14]Reasons, [36].
[15]Reasons, [96].
The applicant’s prospects of rehabilitation were found to be ‘very guarded’. The judge considered that there was only a slim chance of achieving medium to long term rehabilitation unless and until his addictions and mental health conditions were fully addressed.[16]
[16]Reasons, [98]. The sentencing judge also noted the importance of imposing a sentence that encouraged and facilitated the applicant’s rehabilitation: Reasons, [99].
Ultimately, it was found that only a custodial sentence with a non‑parole period was appropriate to address the seriousness of the offending.[17]
(3)Application for leave to appeal
[17]Reasons, [105]–[106].
The application for leave to appeal contains eight particulars:
(1)unfair plea (I was pressured) to plead guilty by my representation and family;
(2)human right to appeal bail;
(3)human right to a fair hearing/trial (appeal);
(4)the charge is not correct I feel;
(4.1)I was not driving dangerously intentionally (and was not aware of it);
(4.2)I was not aware of my way of driving that day;
(5)no medical report of my health was ever done; and
(6)no compassion on [sic] my grandmother who is an 88 year old cancer patient.
A number of materials were filed by the applicant in support of his case, including an affidavit, a personal essay and a document explaining his version of events.
Helpfully, the respondent’s written case categorises the applicant’s submissions as having raised three broad issues, being:
•complaints about his conviction (in that he disputes the voluntariness of his plea, disputes whether the charge of dangerous driving is made out, and disputes whether he was shown fairness);
•complaints about his sentence (in that he submits he ought to be sentenced to time served and/or a community correction order (‘CCO’), complains about an apparent lack of medical reports, and relies on hardship to his grandmother); and
•application for appeal bail.
We have generally adopted the respondent’s categorisation of the grounds of appeal in our analysis below.
PART B:GROUNDS 1, 3 AND 4: CONVICTION

Ground 1: Unfair plea [the applicant] was pressured to plead guilty by [his] legal representation and family.

Ground 3: Human right to a fair hearing/trial (appeal).

Ground 4: The charge is not correct.

Ground 4.1: [The applicant] was not driving dangerously intentionally (and was not aware of it).

Ground 4.2: [The applicant] was not aware of [his] way of driving that day.

The applicant seeks leave to appeal his conviction, notwithstanding his plea of guilty in the County Court.
It is convenient to deal with these grounds together.
(1)The principles of setting aside conviction after plea of guilty
It is well established that an appeal against conviction following a plea of guilty will only be entertained in exceptional circumstances amounting to a substantial miscarriage of justice.
The principles relevant to a conviction appeal following a plea of guilty were recently affirmed by this Court in Mongan v The King:[18]
(a)A plea of guilty, entered by a person who is of sound mind and understanding exercising a free choice in their own interests, will not be set aside on appeal unless the applicant demonstrates that a miscarriage of justice has occurred.
(b)A person may enter a plea of guilty even though they do not believe that they are guilty of the offence for pragmatic reasons, such as, to avoid worry, inconvenience or expense, avoid publicity, to protect family or friends, or in hope of obtaining a more lenient sentence. But a plea entered on such a basis will not be set aside unless a miscarriage of justice is shown.
(c)A miscarriage of justice may occur where it is demonstrated that the applicant did not understand the nature of the charge, or did not intend to admit guilt, or if, upon the facts admitted by the plea, the applicant could not in law be guilty of the offence, or the plea was induced by intimidation or improper conduct or fraud.
(d)Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct, no matter how strongly the argument or advice is put. Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.
(e)Applications to set aside a conviction on the basis that a plea of guilty should be set aside are approached with ‘caution bordering on circumspection’ because of the high public interest in the finality of legal proceedings and the principle that a plea of guilty by a person in possession of all the facts is normally taken to be an admission of each of the necessary legal elements of offence.
(2)The plea hearing
[18]Mongan v The King [2024] VSCA 126 [35] (Beach, Kennedy and Taylor JJA) referring to Gurappaji v The Queen [2018] VSCA 187 [9] (Priest, Beach and Weinberg JJA) referring to R v BDC [2018] QCA 132 [6] (Philippides JA, Sofronoff P agreeing at [1], Henry J agreeing at [20]).
Before addressing the case advanced by the applicant, it is important to identify how the plea was conducted on his behalf. This frames the assessment of the applicant’s attack upon the conviction.
The plea hearing was conducted over two days, a month apart.
The prosecution put its case primarily upon the basis that the applicant failed to pay proper attention. This failure encompassed erratic driving, speeding, and driving into the emergency lane in the manner that the applicant did. The prosecution did not rely upon any impairment caused by the ingestion of prescription medication.
It was the defence who relied upon the applicant’s ingestion of prescription medication in mitigation. The plea was conducted upon the following basis:
•The applicant had taken prescription medication that morning, namely valium and baclofen.
•The defence relied upon the following passage in the report of Dr Jason Schreiber (forensic physician at the Victorian Institute of Forensic Medicine):
Using baclofen together with diazepam may increase side‑effects such as dizziness, drowsiness, confusion, and difficulty concentrating due to drug interaction.
•As to the evidence of having taken valium, the defence relied upon the report of Dr Schreiber that valium was found in the applicant’s system. The effect of Dr Schreiber’s report was that, despite being below therapeutic levels, the diazepam had the potential to have significantly impaired the applicant’s driving.
•As to the evidence of having taken baclofen, the defence relied upon the finding of five white tablets in the applicant’s pockets at the collision scene, believed to be baclofen. The applicant told the police at the scene that he had taken baclofen that morning before driving. The toxicology report did not confirm the presence of baclofen in the applicant’s system at the time the blood test was taken (later that morning after the collision). Nevertheless, the defence tendered a printout from the National Center for Biotechnology Information as to the shelf life of baclofen. This was relied upon to provide an explanation as to why baclofen may not have been detected in his blood if he had taken some that morning.
At the plea hearing, the defence relied upon the evidence of impairment in the following way:
•‘The submission’s simply made that that’s the situation to provide background or an explanation for what would otherwise be quite inexplicable driving and … what is atrocious driving’;
•defence counsel agreed with the sentencing judge’s understanding that it was being used ‘for context to differentiate it from a situation where a driver just decides to drive like an absolute hoon’; and
•to distinguish the applicant from someone who has had ‘a big night at the pub and then ingests methamphetamine or other illicit substances.’
Importantly, defence counsel made some significant concessions at the plea:
•defence counsel said that he did not submit that there was ‘no awareness or anything of that nature’;
•defence counsel agreed with the sentencing judge’s proposition that the applicant must have become aware of the effects (of the medication) upon him and he knew he should not be driving — defence counsel repeated this concession at the second plea date; and
•defence counsel said that he not was in a position to deal with the issue of impairment ‘in a formal psychiatric way’.
It follows that the defence conducted the plea upon the basis that the applicant drove with a level of awareness. Essentially, it was accepted that the applicant must have become aware of the erratic nature of his driving, and that, despite this awareness, he chose to keep driving.
We have carefully read the transcript of the plea hearing conducted over two days. It is evident from the transcript that:
•the issues around the applicant’s impairment, medication use, and awareness of his erratic driving were addressed by his counsel directly and in detail. The issue was front and centre at the plea;
•the plea was conducted on instructions; on several occasions during the plea hearing counsel referred to the instructions he had received. For example, counsel referenced instructions he had received from the applicant as to the applicant’s prior knowledge of the effects of using valium and baclofen; and
•the applicant was able to follow the plea and was prepared to speak out if he perceived that his counsel had made an error in his submissions. For example, at one point the applicant did speak up, when there was some suggestion he had consumed GHB; the offender interjected with, ‘I didn’t take any juice.’

With those observations in mind, we turn now to address the applicant’s main contention.
(3)The applicant’s claim of involuntariness
It became apparent during the oral hearing of this application that the substance of the applicant’s argument is that he was in a state of ‘unconsciousness’ during the period of erratic driving preceding the collision. He was therefore not in control of the vehicle. He does not remember this period.
He points to the fact that there was evidence that he was seen by drivers waving his ‘arms around inside the vehicle and moving [his] head back and forth towards the steering wheel’, and looking ‘spaced’. One witness thought that maybe the applicant was having a seizure; it looked like he was convulsing.
He also points to the sentencing judge’s finding that an explanation for the offending ‘likely lies in the fact that [the applicant was] fatigued through lack of sleep and also adversely affected by the prescription medication’,[19] and that the applicant was ‘likely driving while experiencing drowsiness and confusion and while having difficulties with [his] perception, vigilance, concentration and judgement’.[20]
[19]Reasons, [82].
[20]Reasons, [83].
By this argument, we take the applicant to be contending that a substantial miscarriage of justice has occurred because he had a full defence available to him, namely that he acted involuntarily.
Allied to this complaint is the complaint about his lawyers. In his written material, the applicant has said he was pressured and ignored by his legal representatives. At the oral hearing of this application, the complaint about the lawyers seems to have shifted. The applicant stepped back from any suggestion that the legal representatives placed pressure upon him. Rather, he now contends that his lawyers did not really ever speak with him, or meaningfully engage with him. The applicant said he never spoke with them about his concerns about pleading guilty. The lawyers simply asked him whether he would plead guilty to dangerous driving causing serious injury. He only said yes because he acknowledges that he drove the car and caused the serious injury to Mr Skandaliaris.
We take the applicant to be contending that not only did he have a defence available to him — involuntariness — but he pleaded guilty in ignorance of this. This allegedly resulted from a failure of his lawyers to engage with him on these issues.
(4)Analysis of the applicant’s claim of involuntariness
A fundamental principle of the criminal law is that a person can only be criminally responsible for an offence if their actions were voluntary. An act is committed voluntarily if it is subject to the control and direction of the accused’s will. That is, the accused’s will must govern the movement of his or her body.
Another way of characterising the applicant’s claim is that he was in a state of ‘automatism’. For present purposes, a claim that the applicant was in a state of ‘automatism’ is the same as saying that he committed the act without volition.[21]
[21]Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (Thomson Reuters, 4^th ed, 2017) [3.105], [4.85]. R v Falconer (1990) 171 CLR 30 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; [1990] HCA 49.
Voluntariness is an element of the offence of dangerous driving causing serious injury. It must be proved by the prosecution beyond reasonable doubt. Where voluntariness is in issue this may also simultaneously put in issue the element of ‘driving’, which requires that the accused must be in a position to control the movement and direction of the vehicle.[22]
[22]Tink v Francis [1983] 2 VR 17 (Young CJ, McInerney and Southwell JJ); [1983] VICRP 74.
The question of voluntariness is, however, to be distinguished from intention. The offence of dangerous driving causing serious injury does not require proof of any particular state of mind on the part of the driver.[23] It is not necessary to prove that the accused intended to drive dangerously, was aware that his conduct was dangerous to the public or that he intended that serious injury would be caused by his dangerous driving.[24] An act is also not to be regarded as involuntary simply because the accused cannot remember it.[25]
[23]R v Coventry (1938) 59 CLR 633, 635 (Latham CJ, Rich, Starke, Dixon and McTiernan JJ); [1938] HCA 31.
[24]R v Coventry (1938) 59 CLR 633, 635 (Latham CJ, Rich, Starke, Dixon and McTiernan JJ); [1938] HCA 31.
[25]Harrison v The Queen (2015) 49 VR 619, 629 [45] (Maxwell P, Redlich and Tate JJA); [2015] VSCA 349.
With this legal background in mind, we now turn to the applicant’s principal claim that a substantial miscarriage of justice has occurred because he had a full defence available to him, namely that he acted involuntarily, and that he pleaded guilty under pressure and/or in ignorance of this defence.
For the following reasons (when taken together), there is no substance to the claim.
First, the entry of the plea of guilty constituted an admission to all the essential elements of the offence. One of the elements — to which the applicant admitted by his plea — was that he acted voluntarily.
Second, there was nothing about the circumstances of the entry of the plea which called into question its integrity. It was not a last minute plea, or entered into under pressing or urgent circumstances. The applicant has still not offered an explanation — still less a plausible one — for why his plea of guilty was essentially maintained for over 12 months. On 4 April 2023, the applicant formally entered a plea of guilty at a committal mention (having indicated on 24 January 2023 that he would plead guilty). On 22 April 2024, the applicant was formally arraigned in the County Court, being the first day of the plea hearing. On that date, an agreed summary was read. On 20 May 2024, a further plea hearing was conducted. The applicant had ample opportunity to clarify that his plea was not freely entered. He did not do so.
Third, the factual claim now made by the applicant — that he had no awareness of his driving or the erratic nature of it — is inconsistent with what was put at the plea hearing on his behalf, a hearing in which he actively participated.
As we have said, the plea hearing itself was conducted upon the basis that the applicant drove with a level of awareness. It was accepted that the applicant must have become aware of the erratic nature of his driving, and that, despite this awareness, he chose to keep driving.
The medication was put forward to provide some — though incomplete — explanation for what would otherwise be completely inexplicable behaviour. It was relied upon to forestall any finding that the applicant deliberately set out to drive in such an erratic way or that he planned to do so.
Beyond this, it was not argued that the erratic driving was inadvertent. It was never suggested that the applicant’s impairment so distorted his capacity to exercise self‑control over his conduct that it had to be regarded as approaching involuntary. Such a submission was effectively eschewed by counsel.
The plea was also conducted upon the basis that it was possible that the applicant may have pressed the brakes within the last 0.5 of a second immediately prior to impact. By assuming that he braked prior to impact, this reduced the minimum speed at impact to 109 kilometres per hour, down from 124 to 136 kilometres per hour. This was advanced to the applicant’s benefit in order to reduce the sentence.
We infer from his presence in court and his silence when these matters were canvassed at the plea hearing that the applicant acquiesced in what his counsel put to the sentencing judge over the course of the two day plea hearing.
Fourth, it is impossible to reconcile the manner in which the plea hearing was conducted over two days with the applicant’s assertions that he had not meaningfully spoken with his lawyers at all or about the specific issue of his medication use and his awareness of what occurred with his driving.
The latter issues dominated the conduct of the plea hearing. They were canvassed explicitly and repeatedly by the applicant’s counsel during the plea over the two days.
Despite having the capacity and willingness to speak up — as he did on the question of illicit drug use — it is telling that the applicant never did so with respect to the submissions made about his awareness of his erratic driving.
It is also apparent from what counsel said to the sentencing judge during the plea hearing, that the applicant’s legal representatives had investigated medical explanations for the applicant’s behaviour. Evidence concerning the applicant’s medical history was tendered. Defence counsel said that he was not ‘in a position to deal with the question of the applicant’s behaviour in a formal psychiatric way’.
Fifth, there was a body of evidence which supported the element that the applicant’s driving was voluntary in the sense that he was in control of his movements and the motor vehicle.
The evidence to the effect that he was ‘spaced’, must be considered within the context of all the evidence.
The applicant operated the motor vehicle for some 20 minutes prior to this collision. He operated the vehicle for some 5 to 10 minutes while driving erratically.
The duration of the driving, and the fine motor skills required to operate a vehicle and to navigate the roads and other road users, inevitably bespeaks of the vehicle being driven under the direction of the applicant’s will.
The applicant himself admits to being conscious and having some recall at various times proximate to the erratic driving and the accident:
•He recalls driving to the beach and going to Narre Warren; he drove off ‘quite fast’ on Bungower Road.
•He woke up on a side road on the corner of Bungower Road and the Nepean Highway to a woman asking whether he was ‘ok’ and whether he needed an ambulance. He said that he did not need an ambulance and drove away.
•He remembers going past the golf course at some stage; at one point he remembers that he possibly put his foot down to 120 kilometres per hour.
•He continued to drive, although he was ‘incoherent’, and later woke up again on the side of the road.
•He believes he made a phone call to his brother at this time.
Sixth, there is otherwise an absence of any medical or expert evidence which suggests that the applicant was so impaired that he acted involuntarily when driving the vehicle.
Even if it be accepted that he had taken valium and baclofen, the evidence as to the degree of impairment was pretty general: it ‘may increase side‑effects such as dizziness, drowsiness, confusion, and difficulty concentrating’. Accepting — as the sentencing judge did — that the applicant was adversely affected by the prescription medication and fatigue does not go anywhere near showing that the applicant was deprived of his will to act.[26]
[26]Reasons, [82]–[84].
It was open to the sentencing judge to find that the applicant’s fatigue and other symptoms could not have escaped his attention as he began to engage in this course of erratic and dangerous driving.[27] The applicant’s counsel accepted as much at the plea hearing. It was a realistic concession to make in the face of the state of the evidence. It was not advanced that his driving conduct was inadvertent. In our view, as the applicant’s counsel acknowledged at the plea hearing, the evidence did not permit such a submission.
[27]Reasons, [84].
Seventh, there is no evidence that the plea was entered into other than out of a ‘genuine consciousness of guilt’.[28]
[28]Mongan v The King [2024] VSCA 126 [34] (Beach, Kennedy and Taylor JJA).
The applicant tendered a lengthy apology letter at the plea hearing which included statements that he was ‘sorry for everything’ and that he ‘made a bad choice to drive’ on the morning of the incident. It was an unqualified apology. While he claimed not to remember the collision, there was no claim of involuntariness in the apology letter.
During the oral hearing before us, the applicant seemed to make two submissions relevant to this apology.
First, the applicant claimed his mother wrote it and that his version of the apology was not advanced on his behalf at the plea hearing. The difficulty with this claim is that the letter of apology was signed by him and relied upon by him at the plea hearing to mitigate his sentence. It was explicitly relied upon as an expression of remorse, and as an acceptance of legal responsibility.
Second, the applicant claimed he was — and remains — sorry that his driving in fact caused the collision and the terrible injuries to Mr Skandaliaris, even though he says he bears no legal responsibility for it. He claims he does not resile from the substance of the apology. We take the applicant to be saying that the apology is consistent with his present claim that he drove involuntarily and bears no legal responsibility.
Even if its use is tempered somewhat in favour of the applicant, in our view the apology tells against the suggestion that his plea was not entered out of a ‘consciousness of guilt’.
After the oral hearing in this matter, the Court received a further written submission from the applicant. He sought to clarify some matters about the arguments which he had made orally at the hearing including:
What I did not make clear that day is this. I accept conviction (low – medium culpability), and I am very sorry for the accident.
The further written submission included an apology for the accident. The applicant went on to stress that his goal is to receive ‘a lighter fairer sentence.’
We have not treated his acceptance of conviction as a formal withdrawal of his appeal against conviction. However, the tenor of this submission — which questions his punishment but not his guilt — suggests that the plea was entered out of a ‘genuine consciousness of guilt’.[29]
[29]Mongan v The King [2024] VSCA 126 [34] (Beach, Kennedy and Taylor JJA).
Eighth, it is also immaterial that the applicant did not intentionally drive dangerously, and that he did not plan to cause injury (or serious injury) to Mr Skandaliaris. It also does not matter that the applicant cannot remember things. As we have said above, none of these factors are defences to this charge.
(5)The applicant’s claims of pressure and unfair treatment
While the applicant has shied away from pressing the assertion that he was pressured by his then legal representatives to plead guilty, we would say the following for the sake of completeness:
•beyond a bare assertion of feeling pressured, the applicant has not provided any details of what the legal representatives are meant to have done or said which created any pressure; and
•no evidence has been produced to substantiate a claim that improper means were employed by the legal representatives or that they did anything more than encourage the applicant to plead guilty through reasoned and appropriate legal advice.
The applicant also complains under cover of this ground that he pleaded guilty due to pressure from his family, as he had nowhere else to live.
Even if the applicant elected to plead guilty for solely pragmatic reasons, such as avoiding inconvenience or worry about where he would live, this by itself does not demonstrate that there has been a substantial miscarriage of justice.
There is nothing about this conduct — when considered with the other evidence — which affects the integrity of the plea as an admission of guilt.
Finally, the applicant complains that he did not receive a fair hearing at the plea. We understand this complaint goes to conviction and sentence. There is no evidence that the proceedings were in any way unfair. There is no substance to the complaint.
(6)Conclusion on conviction
To some extent, the observations made by this Court recently in Grimm v The King apply to this case where the applicant had a subjective but misconceived belief that he had a genuine defence to a charge to which he had pleaded guilty:
In circumstances where the applicant’s subjective belief is founded on a fundamental error of law and does not dispute the essential elements giving rise to the charges, that belief does not undermine the integrity of the plea. Nor does it prevent that plea from being attributable to a genuine consciousness of guilt in respect of the offence as charged.[30]
[30]Grimm v The King [2025] VSCA 11 [109] (Priest, Kennedy and T Forrest JJA).
There was evidence which supported each element of the offence including that his driving conduct was voluntary. There was evidence before the sentencing judge that made plain that the driving in this case was relevantly dangerous and that it caused serious injury.
In our view, the entry of the plea constituted an admission to all the essential elements of the offence, including that his driving conduct was voluntary.
On the state of the evidence presented to us, we are far from persuaded that the applicant’s entry of his plea was made upon any misunderstanding as to what he was admitting to by his plea.
It has not been
demonstrated that the applicant did not understand the nature of the charge, or did not intend to admit guilt, or if, upon the facts admitted by the plea, the applicant could not in law be guilty of the offence, or the plea was induced by intimidation or improper conduct or fraud.[31]
[31]Mongan v The King [2024] VSCA 126 [35] (Beach, Kennedy and Taylor JJA).
For all these reasons, the applicant’s contention that this conviction amounts to a substantial miscarriage of justice is without merit. The ground must fail.
PART C:SENTENCE
(1)The sentence was manifestly excessive
The applicant seeks a reduced sentence, to time served with or without a CCO.
We will treat this as a contention that the sentence imposed was manifestly excessive.
As has been said many times before, this ground is difficult to make out. It can only succeed if the sentence is wholly outside the range of sentences open in the sound exercise of discretion. It is not enough for the appellate court to regard the sentence as stern, or that they would not themselves have passed the same sentence.[32]
[32]Leimonitis v The Queen [2018] VSCA 198 [32] (Priest JA, Weinberg JA agreeing at [38]) (citations omitted).
As the sentencing judge noted, the dangerousness of the driving for this offence is informed by the degree or extent of the risk of harm which the driving created and by the extent of potential harm should the risk materialise.[33] The sentencing judge considered the seriousness of the offending to be very high, at the upper end of the spectrum of seriousness.[34] He was correct to do so:
•the applicant engaged in an extended period of extremely risky driving;
•the risk came to pass; and
•as a consequence, he inflicted severe and life changing injuries upon Mr Skandaliaris. The sentencing judge was correct to find that the injuries were close to — if not at — the upper level of the range of serious injuries.[35]
[33]Stephens v The Queen (2016) 50 VR 740, 745 [20] (Redlich, Santamaria and Beach JJA); [2016] VSCA 121.
[34]Reasons, [90], [93]–[94].
[35]Reasons, [92].
In relation to moral culpability, the sentencing judge said:
The fact that you were feeling fatigued and experiencing the other symptoms to which I have referred could not have escaped your attention as you began to engage in the course of erratic and dangerous driving that you did. It remains a mystery to this court why, in such circumstances, you continued to drive in the manner that you did rather than immediately pull the vehicle over. The fact that you ignored the danger that your condition and its effects on your driving presented to other road users for some minutes leading up to this collision, is a disturbing feature of this case and illuminates your degree of moral culpability for this offence.[36]
[36]Reasons, [84].

As a general proposition, where the driving conduct in question is intentional or deliberate, rather than inadvertent, the offender’s moral culpability will be higher.[37] In this case, the sentencing judge accepted that the applicant did not decide to drive in the highly erratic manner he did, and that it was not planned. But this does not detract from the high level of moral culpability which attached to the applicant’s offending in the circumstances found by the sentencing judge. As the sentencing judge found, the applicant at some point became aware of the impact his medication and fatigue were having upon his dangerous driving and chose to ignore this. With this knowledge, he continued driving in a highly erratic manner for some minutes. In our view, this was not a case of inadvertence. It was open to the sentencing judge to find that the applicant’s moral culpability was at a high level.[38]
[37]Harrison v The Queen (2015) 49 VR 619, 629 [45], 638 [83] (Maxwell P, Redlich and Tate JJA); [2015] VSCA 349. For example, if someone drives through a red light intentionally rather than inadvertently they will be generally considered more morally culpable.
[38]Reasons, [92].
The applicant had relevant prior convictions for speeding and dangerous driving. It is unsurprising that the sentencing judge concluded that the applicant’s prospects of rehabilitation were ‘at best moderate but also very guarded’.[39] The sentencing judge was bound to find — as he did — that specific deterrence and protection of the community were important sentencing considerations in this sentencing task.[40]
[39]Reasons, [98].
[40]Reasons, [96].
As the sentencing judge observed, general deterrence and denunciation were also important sentencing considerations.[41]
[41]Reasons, [95].
The sentencing judge clearly considered and gave weight to all the matters urged upon him in mitigation.[42]
[42]Reasons, [66]–[74].
In our view, a term of 3 years’ imprisonment, with a non‑parole period of 2 years, was within the sound exercise of the sentencing judge’s discretion.
The ground must fail.
(2)Ground 5: No medical report of [the applicant’s] health was ever done.
The parties’ arguments
The applicant complains that he did not get a ‘full medical assessment for the Court Procedure’, that reports showing his medical history were tendered which ‘painted a picture of a different side of my life’ and that a psychologist’s report was not used on his plea.
The respondent argued that a number of documents relevant to the applicant’s medical history were tendered on the plea. We will refer to these in detail below in our analysis.
The respondent submitted that the sentencing judge took into account the applicant’s medical and psychiatric history, and concluded that limb 5 of Verdins was engaged because the applicant’s diagnoses would make prison more onerous for him than for a person of sound mental health.
The respondent contended that, if other materials were obtained for the plea, the applicant has not demonstrated that his counsel’s decision not to tender them was anything other than a sound forensic decision.
Analysis
As the respondent’s submissions demonstrate, a wealth of medical material was tendered on the applicant’s behalf at the plea.
•A letter from Dr Andrew Taylor of Frankston Healthcare together with progress notes from the applicant’s recent attendances at Frankston Healthcare. Dr Taylor stated in his letter that the applicant suffered from ‘severe chronic and relapsing drug abuse’, which had led to health issues including pancreatitis. The applicant had attended that practice for more than 10 years.
•A letter from Dr Daniel Espinosa, the applicant’s regular general practitioner. Dr Espinosa set out a thorough medical history and included his observations of the applicant’s remorse for his offending.
•A psychological report from the applicant’s treating psychologist, Mr Errol Ekyalcin. In the report it was stated that the applicant presented with schizoaffective disorder, substance induced psychotic disorder, polysubstance abuse disorder and disturbed mood and anxiety, against a background of attention deficit hyperactivity disorder.
As the respondent observed, the sentencing judge took into account the applicant’s medical and psychiatric history,[43] and concluded that limb 5 of Verdins was engaged because prison would be more onerous for him than for a person of sound mental health.[44]
[43]Reasons, [52]–[53], [64].
[44]Reasons, [74].
The applicant has not advanced or pointed to any additional medical evidence which was not tendered and relied upon at the plea hearing. We have not been provided with the suggested additional psychological report.
Had the applicant sought to rely upon such evidence, he would have been required to overcome the stringent test for ‘fresh evidence’ within the principles set out by Redlich JA in R v Nguyen, namely:
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.[45]
[45]R v Nguyen [2006] VSCA 184 [36] (Redlich JA, Maxwell P agreeing at [1], Neave JA agreeing at [2]) (citations omitted).
Given that the psychological report was apparently available at the time of the plea and sentence, the applicant would be unlikely to satisfy this test, in particular element (i).
We infer that a forensic decision must have been made at the plea hearing to not lead further evidence as to the matter. We are not persuaded that, on all of the material now before the Court, a new sentence should be substituted to avoid a miscarriage of justice.
(3)Ground 6: No compassion to [the applicant’s] grandmother who is an 88‑year‑old cancer patient.
The parties’ arguments
The applicant relies upon the materials filed at the plea hearing which showed that he had significant concern for the wellbeing of his grandmother, who was then 88 years old, and had been diagnosed with cancer.
The applicant relies upon further materials filed on this application that indicated that his grandmother’s health had declined and that she was now terminally ill in hospital. This information comprised recent email communications with family members about his grandmother’s deterioration and hospitalisation, and photographs of his grandmother in her hospital bed. The applicant filed a further written submission dated 26 June 2025 again imploring the Court to release him so that he might provide support to his grandmother and family in this difficult time.
The respondent points out that the sentencing judge accepted that the applicant had been a primary carer for his grandmother. The sentencing judge took into account his concern about his grandmother and his mother (who was diagnosed with multiple sclerosis), and accepted that this worry would render his period of incarceration more onerous.[46]
[46]Reasons, [71].
The respondent contends that this was an entirely orthodox approach, noting that it was not put on the plea that incarcerating the applicant has led to exceptional family hardship under the principles of Markovic v R.[47]
[47]Markovic v R (2010) 30 VR 589, 591 [5] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA); [2010] VSCA 105.
The respondent contends that the materials provisionally tendered at the oral hearing in support of this ground do not change anything. The respondent submitted that the applicant’s grandmother is now being cared for and lives with a daughter and the daughter’s husband. There are arrangements in place for the grandmother to receive medical treatment. The principles of family hardship are still not made out and, in any event, the new material does not constitute fresh evidence within the meaning of R v Nguyen.[48] The respondent pointed out in oral submissions that the applicant’s wish to see his grandmother before she dies might be raised administratively within the corrections system.
Analysis
[48]R v Nguyen [2006] VSCA 184 [36] (Redlich JA, Maxwell P agreeing at [1], Neave JA agreeing at [2]) (citations omitted).
The respondent’s submissions must be accepted.
Very recently in Carabott v R, this Court observed that family hardship to an offender’s family members may be taken into account in two ways:
(a) only in an exceptional case, where the plea for mercy is seen as irresistible can family hardship be taken into account. The focus of the enquiry is on the impact the sentence will have on the offender’s family members, and the court may tailor its sentence to relieve the plight of those family members; and/or
(b)a sentencing court may take into account, as a separate sentencing consideration, the effect on the offender of hardship caused to family members by his or her absence if imprisoned.[49]
[49]Carabott v R [2025] VSCA 118 [37] (Niall CJ and T Forrest JA) (citations omitted).
As the court in Carabott v R recognised,[50] the first category derives from this court’s decision in R v Markovic.[51]
[50]Carabott v R [2025] VSCA 118 [37] (Niall CJ and T Forrest JA).
[51]R vMarkovic (2010) 30 VR 589, 592–3 (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA); [2010] VSCA 105.
At the plea hearing, the applicant only sought to enliven the second category, by relying upon the applicant’s anguish at being unable to care for family members. No argument was advanced at the plea hearing that he made out the exceptional case for hardship to his family members.
Having made reference to his grandmother’s lung cancer diagnosis (and chemotherapy treatment),[52] the sentencing judge concluded:
You have also taken on the primary care for your ailing grandmother who is now aged 87. I have taken account of the fact that you will be worried about her and your mother’s health while you are serving your sentence and that this concern will add to the onerousness of your sentence.[53]
[52]Reasons, [59].
[53]Reasons, [71].
In our view, the additional information concerning the deterioration in his grandmother’s health is not fresh evidence within the meaning of the principles set out under in R v Nguyen (which we have reproduced above in ground 5.2).[54]
[54]R v Nguyen [2006] VSCA 184 [36] (Redlich JA, Maxwell P agreeing at [1], Neave JA agreeing at [2]) (citations omitted).
We do not doubt the distress which the applicant is experiencing at the deterioration of his grandmother’s health, and because of his incapacity to be by her side. However, the fact that this sad state of affairs would render the applicant’s incarceration more onerous was fully exposed at the plea and taken into account by the sentencing judge. The new information does not throw new light upon pre‑existing facts.
For the sake of completeness, we make it clear that, in any event, we do not think that the additional information supplied by the applicant at the oral hearing on this application would advance the case that the circumstances are so exceptional that hardship on the applicant’s family members — as a consequence of his imprisonment — should be taken into account.
Family hardship was not pursued at the plea. It is a very difficult test to satisfy and the material before us falls well short of making this out. There is no evidence that the applicant’s grandmother is not being cared for. In fact, the email communications with other family members about his grandmother’s deterioration and hospitalisation would suggest otherwise.
PART D:GROUND 2: BAIL
In his written case the applicant also raised the prospect of being released on bail pending his appeal being heard. At the oral hearing of the application, the applicant applied for bail pending the outcome of the appeal once we indicated we would reserve judgment in this matter. Notwithstanding the absence of any formal application, we treated this as an application for bail pursuant to s 310 of the Criminal Procedure Act 2009.

We refused the application for bail at the hearing noting that we would provide the reasons when handing down judgment.
It has long been accepted by this court that an applicant must show exceptional circumstances in order to be granted appeal bail. As this court stated in Madafferi v The Queen:
‘Exceptional circumstances’ means circumstances which are ‘truly exceptional’. The requirement for the applicant to establish exceptional circumstances is a stringent one, having regard to the fact that he has been convicted and sentenced, and the right of appeal is conditioned by the presumption which operates in favour of the validity of the conviction and sentence. This is to be contrasted to trial bail, where an accused enjoys both the presumption of innocence and a presumption in favour of the grant of bail.[55]
[55]Madafferi v The Queen [2021] VSCA 332 [34] (Emerton and Osborn JJA), citing Re Zoudi (2006) 14 VR 580, 589 [28(5)] (Maxwell P, Buchanan, Nettle, Neave and Redlich JJA); [2006] VSCA 298.
We understood that the applicant contended that exceptional circumstances had been made out by reason of a combination of two factors:
•he had good prospects of succeeding in overturning his conviction; alternatively he had good prospects of succeeding in having his sentence reduced to time served, with or without a CCO; and
•the circumstances of the deteriorating health of his grandmother.
In support of his application for bail, the applicant relied upon the material advanced in support of his conviction and sentence appeals.
The respondent opposed the grant of bail, contending the following:
•nothing in the applicant’s written case amounted to exceptional circumstances;
•the authorities make clear that an important consideration on an application for bail pending appeal is whether the applicant will serve the whole or a substantial portion of their non‑parole period before their appeal can be heard. Given that the applicant’s earliest eligibility for parole is 2 April 2026, there is no such risk in this case; and
•further, the applicant appeared to admit in his written materials to driving in breach of his bail conditions when on bail for this matter.[56] In his written case, the applicant states ‘On my bail I only ever drove the car once’. The respondent therefore submitted that the applicant posed an unacceptable risk of endangering the safety and welfare of other persons, namely road users, were he to be released on bail.
[56]The applicant was remanded in custody from the date of his arrest until he was released on bail on 30 September 2022. He remained on bail until he was remanded in custody at the conclusion of the plea hearing on 22 April 2024. See Reasons, [34].
We were not persuaded that the applicant had established that there were exceptional circumstances warranting his release on bail pending the determination of his application for an extension of time. We reached this conclusion without the need to make any findings about the applicant’s apparent breach of bail.
In particular, we did not consider that the applicant had good prospects of succeeding in overturning his conviction. The deteriorating condition of the applicant’s grandmother, and his inability to care for her as he naturally wishes to do, are understandably difficult for the applicant while in custody. But in our view, these are sad circumstances of life that, of themselves, cannot be described as truly exceptional.
PART E:CONCLUSION
The application for an extension of time will be refused.
---

[2025] VSCA 197

26 August 2025