Berzad Spijodic and v The Queen and
[2014] VSCA 251
•8 October 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0180
| BERZAD SPIJODIC |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES: | MAXWELL P and WEINBERG JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 October 2014 |
| DATE OF JUDGMENT: | 8 October 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 251 |
| JUDGMENT APPEALED FROM: | DPP v Spijodic (Unreported, County Court of Victoria, Judge Quin, 13 June 2014) |
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CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing serious injury (2 charges) – Sentenced to 18 months’ imprisonment, 12 months suspended – Applicant diagnosed, after commencement of incarceration, with cyst in close proximity to brain – Passing mention on plea of applicant suffering headaches – Applicant elected to refuse surgical treatment during custodial portion of sentence – Whether fresh evidence – Whether new circumstances such that sentence should be reduced – Individual sentences and total effective sentence lenient – No lesser sentence warranted – Application refused – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D D Gurvich | Stephen Andrianakis & Associates |
| For the Crown | Mr P B Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
WEINBERG JA:
The applicant pleaded guilty, in the County Court at Melbourne, to two charges of dangerous driving causing serious injury. He was sentenced on 13 June 2014 as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Dangerous driving causing serious injury [Crimes Act 1958 s 319(1A)] | 5 years’ imprisonment | 15 months | Base |
| 2 | Dangerous driving causing serious injury [Crimes Act 1958 s 319(1A)] | 5 years’ imprisonment | 3 months | 3 months |
| Total Effective Sentence: | 18 months’ imprisonment (12 months suspended with an operational period of 24 months) | |||
| Non-Parole Period: | Nil | |||
| Pre-sentence Detention Declared: | Nil | |||
| 6AAA Statement: | 18 months’ imprisonment | |||
| Other orders: Licence cancelled and disqualified for 18 months from 13 June 2014 | ||||
The applicant now seeks leave to appeal on the following ground:
Fresh evidence as to the applicant’s medical condition since the sentence was imposed demonstrates the true significance of facts in existence at the time of sentence such that a different sentence should now be imposed to avoid a substantial miscarriage of justice.
Background
On 30 June 2012, the applicant was driving his utility vehicle on a two-lane sealed road in a rural area. He had with him in the front passenger seat his girlfriend’s 12 year old son.
As the applicant approached an intersection, he failed to notice that a large truck and trailer, which was travelling ahead of him in the same direction, was slowing down to make a left-hand turn. He attempted to avoid the truck by braking suddenly and moving towards the left. His vehicle veered partially onto the grass shoulder before he steered it to the right, travelling over the centre line. It collided with the front driver’s side of a van travelling in the opposite direction.
The collision pushed the van off the road, where it rolled and finished on its side. The victim, who was the driver of the van, was left suspended in her seat by her seatbelt with her leg trapped under the steering wheel. She was bleeding profusely from the mouth and not at that stage breathing. Entirely fortuitously, a nurse, who had happened to witness the collision, attended to the victim and cleared her airways. That enabled her to resume breathing and, in all likelihood, saved her life.
The victim sustained a number of serious injuries. She suffered a fractured nose, cuts to the head, and a ruptured ligament to her right knee. Her right collarbone was broken, as were her left wrist, right ankle, and the tibia and fibula on her left leg. She was airlifted to the Alfred Hospital. She remained in hospital for a number of months, undergoing rehabilitation and physiotherapy. That enabled her to regain basic functions, such as walking. She required a number of operations as a result of her injuries, including, most recently, surgery in February 2014.
Not surprisingly, she described in her victim impact statement how the effects of this incident had damaged her, both physically and psychologically. She had been studying to become a personal trainer, but the effect of the injuries upon her may well have put paid to that ambition. She had suffered severe pain over many months. She also sustained significant financial loss, which is ongoing. Her face was scarred, as were her legs. She was, and is, receiving psychological care in order to cope with her various difficulties.
To put the matter in its most simple terms, the applicant’s irresponsible behaviour had the most profound and devastating consequences so far as this victim was concerned.
The applicant’s girlfriend’s son was also injured. He suffered a fractured left clavicle, swelling and tenderness as a result of the accident.
Medical evidence
Counsel who appeared for the applicant on the plea noted that his Royal Melbourne Hospital records confirmed that he had not suffered anything beyond soft tissue damage as a result of the accident.
However, counsel mentioned, almost in passing, that the applicant had visited a doctor about various matters, including his headaches, which were said to have commenced prior to the accident. Counsel further submitted that those headaches had become the subject of more rigorous inquiry because they had become ‘quite regular’, and the cause had yet to be diagnosed.
In an affidavit dated 14 August 2014, his solicitor referred to the applicant’s instructions that he had been suffering from headaches for some months prior to the plea hearing. According to the affidavit, the applicant further instructed that the headaches had intensified in the days prior to the plea, but he believed this was due to his level of depression and anxiety caused by his upcoming court hearing. Following the plea, so the applicant said, the headaches had continued and gradually intensified.
During the course of the hearing before this Court, the Crown provided a helpful chronology of the applicant’s medical treatment. The accuracy of that chronology was not challenged. In broad terms, it reveals the following history.
On 14 June 2014, the day after the applicant commenced serving his sentence, medical staff at the Melbourne Assessment Prison conducted a general medical examination where he informed them of the fact that he had been suffering headaches for some time. According to progress notes subsequently produced, he told medical staff that he had been having recurrent headaches for two years, but these had not been investigated. He was booked in for an urgent CT scan on that same date.
When the applicant was moved to Dhurringile prison a few days later he again complained to medical staff about his headaches, and advised that he was suffering nausea. For reasons that are not altogether apparent, staff at Dhurringile did not arrange for a CT scan and blood sample for a period of almost three weeks. That scan was finally conducted on 3 July 2014. It showed a lesion which, it was surmised, could indicate that the applicant had a pineal cyst on his brain. It led to a recommendation for an MRI scan so that the matter could be further investigated.
A week or so later the applicant had a consultation with a medical practitioner. He was advised that the CT scan had revealed a 10 millimetre circular growth in his head, in close proximity to his brain. He was told that the nature of this growth was unknown and that further tests needed to be conducted.
The applicant was immediately transferred to the hospital ward of Port Phillip Prison, and a referral made for an MRI. This was marked ‘urgent’. Once again, for reasons that are not immediately obvious, that MRI was not conducted until more than two weeks later, on 31 July 2014. Essentially, it too showed features of a lesion in keeping with a pineal cyst.
On 5 August 2014, the applicant was discharged from St Vincent’s Correctional Health Service where he had been, since 11 July, an inpatient. He was transferred to Port Phillip Prison.
On 12 August 2014, the applicant was presented with the MRI results. He expressed the view, at that stage, that he did not want treatment at St Vincent’s Hospital.
On 19 August 2014, the applicant was transferred to Dhurringile Prison. During the course of a screening assessment, a nurse recorded the fact that he was declining treatment for this cyst whilst in custody. He indicated that he would follow up, in relation to that matter, after his release. In the meantime, his desire was to continue with a pain management plan.
On 26 August 2014, the applicant met with a doctor, and they discussed the cyst. He indicated that he was not keen to go back to Port Phillip Prison, and wanted to be treated only after he had served his custodial term.
On 1 October 2014, the applicant reported nausea, and a headache, as well as panic. His treating doctor suggested that he go back to St Vincent’s for surgery. The applicant said he would think about it.
On 3 October 2014, the applicant again reported headaches, tiredness and nausea. He indicated that he was not taking medication for nausea. There was a lengthy discussion regarding his being referred to St Vincent’s, but he was resistant. He agreed, however, to think about the matter.
It is necessary to say something about how information regarding the applicant’s medical condition, whilst in custody, came to be compiled.
On 10 September 2014, the day after an urgent request was made by the applicant’s solicitor to the Court of Appeal Registry, the Court ordered that Justice Health produce to the Judicial Registrar a copy of the applicant’s medical records. Justice Health subsequently produced those records dating from 13 June 2014 to 19 August 2014. They consist of a combination of handwritten progress notes, pathology reports, MRI results, screening assessments, and medication administration records. So far as we can tell, they confirm both the CT scan and MRI findings, and record the applicant’s complaints regarding headaches, and occasional blackouts. That is about as far as they go.
On 3 October 2014, the applicant filed a further affidavit from his solicitor. That affidavit indicated that there had been further developments in the applicant’s medical condition post-dating the records produced by Justice Health.
The applicant requested his further medical records from Justice Health, and these were provided to the Court on 6 October 2014. Some of these documents, though barely legible, confirmed what has already been said about his condition. So far as the medical evidence is concerned, that is as far as the matter had progressed.
Conclusion
The principles governing the reception of fresh evidence as to changed circumstances, after the imposition of sentence, are set out, most helpfully, by Redlich JA in R v Duy Duc Nguyen.[1]
[1][2006] VSCA 184.
There, his Honour said:
It is common ground that this Court may, in limited circumstances — sometimes described as ‘rare and exceptional’ — permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:
(i) the new evidence must relate to events which have occurred since the sentence was imposed;
(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;
(iii) the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;
(iv) the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;
(v) upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and
(vi) the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.[2]
[2]Ibid [36] (citations omitted).
There was no issue before this Court as to whether the requirements for the reception of fresh evidence, in accordance with principles (i) and (ii), were met. The evidence upon which the applicant now relies plainly relates to events which have occurred since the sentence was imposed. It does demonstrate the true significance of facts that were in existence at the time of the sentence.
The real point at issue in this application turns upon principle (vi). The applicant submits that, on all the material now before this Court, a different sentence should be substituted in order to avoid a miscarriage of justice.
The Crown challenges that submission, on two distinct bases.
First, the Crown submits that the individual sentences imposed, the total effective sentence of 18 months’ imprisonment, and the effective sentence of six months to be served, having regard to the order for suspension, were all moderate. It points to the applicant’s driving record, which is poor, given his four prior convictions for having driven whilst his licence was suspended, and other driving offences. It also refers to the fact that, although it cannot be asserted that the applicant was exceeding the speed limit at the precise point at which the incident occurred, there was evidence that he was travelling at an estimated speed of about 120 km per hour shortly before he failed to notice, for whatever reason, that the truck in front of him was turning left.
For our part, we regard the Crown’s description of the sentence imposed below as ‘moderate’ as too generous to the applicant. We would characterise both the head sentence of 18 months’ imprisonment, and more particularly, the six months that the applicant is required to serve in custody, as lenient. That is of real significance when considering whether that period of six months’ imprisonment is, in the light of the facts now known to this Court, of such excessive duration as to amount to a miscarriage of justice.
It would take fresh evidence of particular potency to persuade us that anything less than six months’ imprisonment would be an appropriate disposition in this matter. As we have stated, the applicant’s behaviour has led to utterly devastating consequences so far as the victim is concerned. The effects of his actions upon her future well-being and life prospects must not be ignored. The sentencing judge would, in our opinion, have been perfectly entitled to impose a significantly heavier sentence upon the applicant for this offending. He may well consider himself to be fortunate to have been dealt with as benevolently as he was.
The second point raised by the Crown seems to us also to have considerable force. The fresh evidence does not go so far as to suggest that the applicant’s condition is potentially life threatening, at least as matters presently stand. Certainly, there is nothing to indicate that he is being denied urgent medical attention, or treatment, as a result of his continued incarceration. He could, if he wished to do so, have surgery to deal with the cyst before his term of imprisonment expires. For whatever reason, and it may be one that in his own mind is perfectly defensible, he has chosen not to do so.
Unlike some other cases in which the Eliasen[3] principle has been invoked, the applicant is not suffering from some previously undiagnosed terminal disease. He is not able to point to any inadequacy of available treatment options whilst in custody. It might even be said that his health and well-being are better assured now than they were during the two years or so, prior to sentencing, when he did nothing with regard to the regular headaches that he was suffering at the time.
[3]Eliasen v The Queen (1991) 53 A Crim R 391.
We accept, of course, that the applicant is suffering from anxiety at the uncertainty surrounding his health, having regard to the cyst that has now been diagnosed, and that will soon require surgery. At the same time, the facts surrounding his medical condition, as now more fully understood, fall short of those revealed in cases such as Spence v The Queen,[4] where the evidence was that the applicant’s already serious illness was being significantly exacerbated by his continued incarceration.
[4][2013] VSCA 197.
We should add that in our opinion the medical evidence provided to this Court is in a form that is quite unsatisfactory. It falls significantly short of demonstrating a case warranting appellate intervention. It is not sufficient, in a case such as this, to produce to the Court a set of barely comprehensible progress notes (most of them handwritten, but illegible) with no explanation whatsoever as to what they connote.
What should be provided, in relation to a fresh evidence ground based on changed medical circumstances, is a report of some kind, prepared by a competent medical professional, informing the Court of exactly what the applicant’s current condition is said to be. It should also, as best as can be done, provide an assessment of the applicant’s prognosis.
We do not criticise the applicant for this failing. His solicitor wrote to the Department of Justice, on 31 July 2014, requesting a medical report in relation to his diagnosis, and his prognosis. That was a perfectly reasonable request, and one that could easily have been accommodated. Who better to prepare such a report than those who were providing ongoing treatment to the applicant in the prison system?
Unfortunately, that request was met with the response that Justice Health was ‘not able to undertake a health summary or a medical report’. Instead, the applicant was invited to arrange for his own report, presumably by a consultant who had never seen him, based upon his prison health records. This was, in our view, a singularly unhelpful reply, and not just as far as the applicant was concerned. It also had the effect of making this Court’s already difficult task, in considering this complex medical material, more onerous.
For the reasons set out above, we would refuse leave to appeal.
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