Bradley Nicholson v The Queen
[2018] VSCA 146
•6 June 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0019
| BRADLEY NICHOLSON | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 May 2018 |
| DATE OF JUDGMENT: | 6 June 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 146 |
| JUDGMENT APPEALED FROM: | DPP v Nicholson (Unreported, County Court of Victoria, Judge O’Connell, 18 December 2017) |
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CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing death and serious injury – Whether applicant’s intellectual disability mitigated moral culpability – Whether disability analogous to youth in assessing moral culpability for driving offences – Whether evidence addressed effect of applicant’s disability on offending – Muldrock v The Queen (2011) 244 CLR 120; DPP v Borg (2016) 258 A Crim R 172 distinguished; DPP v Whittaker; DPP v Neethling considered.
CRIMINAL LAW – Appeal – Sentence – Whether reception of new evidence necessary to avoid miscarriage of justice – Whether new evidence showed applicant’s disability affected offending – Betts v The Queen (2016) 258 CLR 420 applied.
CRIMINAL LAW – Appeal – Sentence – Evidence of effect of applicant’s disability on imprisonment – Evidence of deterioration of mental health in prison – Evidence of placement in protection in prison – Whether evidence demonstrated true significance of facts in existence at time of sentence – Whether evidence represents matters taken into account at sentencing – R v Wooden (2006) 45 MVR 227; R v Rollo [2006] VSCA 154; R v Rostom [1996] 2 VR 97 distinguished; R v Nguyen [2006] VSCA 184; R v McLachlan (2004) 8 VR 403 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R F Edney | Doogue + George Defence Lawyers |
| For the Respondent | Mr P J Doyle | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN JA
McLEISH JA:
On 5 September 2017, the applicant pleaded guilty to one charge of dangerous driving causing death,[1] two charges of dangerous driving causing serious injury[2] and two related summary charges. Following a plea hearing over three days, the applicant was sentenced on 18 December 2017 to 2 years and 9 months’ imprisonment on the dangerous driving causing death charge and 1 year and 9 months’ imprisonment on each of the serious injury charges. Six months of the sentence on each of the latter charges were ordered to be served cumulatively with the sentence for the first charge, resulting in a total effective sentence of 3 years and 9 months. A non-parole period of 1 year and 9 months was fixed. It is unnecessary to refer to the sentences imposed in respect of the summary charges.
[1]Crimes Act 1958 s 319(1).
[2]Ibid s 319(1A).
The applicant seeks leave to appeal against the sentence imposed on three grounds. All are related to the manner in which his intellectual disability affected his sentence.
Circumstances of the offending
On 10 April 2015 at about 11:10 pm, the applicant drove his Nissan Patrol four-wheel drive vehicle along Milners Road, Launching Place. At the time the applicant was 22 years old and had a blood alcohol concentration of at least 0.108 per cent. There were five passengers in the car, at least some of whom were not wearing seat belts. The group had been part of a gathering at the Sam Knott Hotel in Wesburn to celebrate the birthday of Joshua Bell, who was one of the passengers in the vehicle.
The applicant had consumed a number of drinks during the evening. He had told some of the witnesses who were at the hotel that he was not going to drink too much, given that he was driving. However, two witnesses gave evidence to the effect that they considered that he had drunk too much to be driving. One of those witnesses, Mitchell Livingstone, said that he had told the applicant that he should not be driving because he had been drinking and that the applicant had replied that he knew what he was doing.
At around 11:00 pm, a number of those present decided to go to a house in Hoddles Creek to continue the celebration. The applicant took five passengers in his car: Charlie Robertson, Joshua Bell, Billy Paisley, Mark McLaren and Monique Kouvaras. The vehicle only had seat belts for a total of five people.
The road was dark with numerous sharp curves and undulations. There was a default 100 kilometre per hour speed limit but numerous speed advisory signs along the road suggested lower speeds for the corners that the driver was required to negotiate. After driving for about seven kilometres, the vehicle approached a right-hand curve. Leading up to the curve was a short straight section of road with a slight downhill gradient. There was a speed advisory sign of 45 kilometres per hour.[3] The applicant was assessed to have approached this corner travelling at a minimum speed of 74 kilometres per hour. The applicant drove into the curve and attempted to negotiate it but was travelling too fast. As the vehicle came out of the curve it drifted to the left and onto the gravel shoulder along the left-hand side of the road. It then drove through some foliage from an overhanging tree before the applicant steered to the right in an effort to get back onto the bitumen road surface. Once back onto the roadway he steered back to the left. These turns caused the car to go into a short yaw before it tripped and rolled a number of times over a distance of about 55 metres. The vehicle came to rest after the rear passenger door and roof collided with a large tree. While it was rolling over, Mr Robertson, Mr Bell and Ms Kouvaras were ejected from the vehicle. The vehicle landed on Mr Robertson and he suffered significant head and upper body injuries and died at the scene.
[3]There was some doubt in the evidence as to whether the sign specified 40 or 45 kilometres per hour. Nothing turns on the difference.
Mr Bell and Ms Kouvaras suffered serious injuries. Mr Bell suffered fractures to his skull, has an acquired brain injury and has lost 70–80 per cent of his vision in his right eye and significant sensitivity in his ability to smell. He suffered fractures to his spine, broken ribs and sternum and a dislocated shoulder. His left ear was severed and required a skin graft. Ms Kouvaras suffered severe traumatic brain injury with haemorrhage requiring acute neurosurgical management. She also suffered fractures to her cervical vertebrae, right clavicle and pelvis and bilateral lung contusions. She underwent a prolonged period of rehabilitation in hospital as a result of severe post-traumatic amnesia, and suffered a number of complications. She may need lifelong interventions in order to lead a normal life.
Plea hearing
Defence counsel submitted at the plea hearing that the applicant has had significant mental deficiencies since childhood. There was evidence that he had a low IQ and difficulties with language and understanding. His ability to cope with change was diminished compared with the average person in the community.
Counsel noted that the applicant accepted responsibility from the night of the accident and had pleaded guilty to all charges, sparing those affected from the need for a committal hearing. He was a youthful offender with no prior convictions and no subsequent matters. He had one ticket for speeding, driving less than 10 kilometres per hour over the speed limit, within the past four years. Counsel submitted that the applicant was truly remorseful and full of regret for his behaviour. He had attended Charlie Robertson’s funeral and had no hesitation in accepting blame and feeling guilt for the accident. Counsel tendered a large number of personal references for the applicant, including one written by a passenger who was in the car. The applicant himself wrote a letter of apology.
Since June 2016, the applicant had attended consultations with psychologist Dr Joel Godfredson on a monthly basis. The sentencing judge was provided with a report of Dr Godfredson, who diagnosed the applicant with post-traumatic stress disorder (‘PTSD’). Dr Godfredson had attempted to alleviate the applicant’s fear of imprisonment by providing practical advice and information regarding prison culture, but noted his emotional dependency upon his partner and family.
The applicant’s parents both gave evidence at the plea hearing. The sentencing judge noted that it was clear that he had grown up in a loving and supportive environment, but that he had suffered from an intellectual disability that was formally recognised during his primary schooling. He struggled academically and to some extent socially. He left school around the beginning of Year 10 and went to work in his father’s building business as a labourer; under his father’s close supervision he had worked in that role since then. He lived at his parents’ home and the judge observed that they had dedicated themselves to providing a high level of support that enabled the applicant to lead as ordinary a life as possible in spite of his disability.
The judge further observed that the applicant had impressed many people with his quiet, well-mannered and caring nature. The references that were provided showed how very out of character his behaviour in drinking and driving had been and how deeply he had felt the consequences of his offending. The judge accepted that he was genuinely remorseful.
Evidence was also given by a clinical psychologist, Dr Rachel MacKenzie, who provided a report and gave oral evidence. She noted that previous assessments had consistently placed the applicant in the range of a mild intellectual disability with severe receptive and expressive language impairment as well as auditory processing deficiencies. She gave evidence that the applicant’s verbal IQ had varied in testing from levels in the 50s up into the 70s. She said that the applicant did not have much capacity for self-assertion and had a tendency towards acquiescence. She also assessed the applicant as suffering from post-traumatic stress disorder and was of the opinion that he was at low risk of recidivism. Dr MacKenzie was of the opinion that it would be extremely difficult for the applicant to navigate the prison environment and that he would be extremely vulnerable to exploitation and manipulation within the prison system.
The sentencing judge adjourned the plea hearing to enable a detailed psychological assessment of the applicant, on the basis that the severity and the specific nature of his intellectual impairment and other disabilities were not clear. In circumstances set out later in these reasons, this ultimately led to a report being obtained from Dr Fiona Fisher, a clinical neuropsychologist, dated 24 October 2017. Dr Fisher assessed the applicant as having an IQ of 63, placing him at the first percentile in the extremely low range of functioning. She found that his reading and writing skills were the equivalent of late primary school level and that this was probably only because of the daily intensive family and academic support that he had received when at school. His ability to retain information, both immediately and after delay, fell within the extremely low range, namely less than the first percentile. She stated that the applicant’s ability to take in and encode moderate amounts of contextual information was severely impaired. She found that he struggled to comprehend questions and instructions that involved the use of more complex language or which were abstract in nature. His spontaneous speech was limited and he would often not initiate clarification of words he had not understood. She found that the applicant required most task instructions to be repeated, and often simplified, in order to ensure that he comprehended what was being asked of him. Dr Fisher found that the applicant’s ability to plan, organise himself and to reason in an abstract way were all severely impaired.
Dr Fisher concluded as follows, in relation to how the applicant might cope in custody:
Given Mr Nicholson’s complete reliance on the structure and support systems he has in place, it is highly likely that he will decompensate from his current level function when faced with a new environment, particularly one that lacks the social supports he is so reliant on. He is unlikely to be able to recall and understand in any in-depth manner the rules, regulations and social [nuances] that comprise a custodial environment.
…
Mr Nicholson’s broad-ranging intellectual, social cognitive and adaptive impairments when considered together with his tendency to seek approval and acquiesce, renders him extremely vulnerable to undue influence or unintentional non-compliance due to a poor understanding of the custodial environment (ie responding positively or agreeing to things despite being unsure exactly what is being asked, and therefore being unable to meet expectations). In my opinion, there are significant risks of adverse effects within a custodial environment due to Mr Nicholson’s intellectual disability.
Sentencing remarks
The sentencing judge accepted that there were many factors in mitigation. The applicant was a young person with no prior convictions who had pleaded guilty and was clearly remorseful. The judge said that, with the continued support of so many of those close to him, the applicant’s prospects for rehabilitation appeared to be excellent.
The judge observed that the applicant had not been deliberately showing off or driving erratically or in a way that caused concern to his passengers. However, driving with passengers on an unfamiliar and difficult road demanded very real caution. The judge stated that ‘overlaying all of these considerations’ was the fact that the applicant was driving with a blood alcohol level which was over twice the legal limit.
The judge stated that, notwithstanding his disabilities, the applicant was expected to comply with the road laws like any other driver. He referred to authorities to the effect that a young person driving a motor car must accept adult responsibility for his or her actions. The judge continued:[4]
In my view much the same principle applies when assessing the relevance of your disability. Accordingly, I accept [the prosecutor’s] submissions that your manner of driving in that you were affected by alcohol and negotiated the bend in the road too quickly with five passengers in the car is not mitigated by your disabilities. The amount of alcohol you consumed is a matter for which you were responsible, as any driver must be.
[4]DPP v Nicholson (Unreported, County Court of Victoria, Judge O’Connell, 18 December 2017) [77] (‘Sentencing Remarks’).
The judge went on to mention three ways in which he held that the applicant’s disabilities were relevant to the sentence to be imposed. First, the judge declined to treat as aggravating circumstances the evidence that the applicant had failed to heed a warning not to drive and failed to ensure that his passengers were wearing seat belts. Secondly, the intellectual disability of the applicant called for ‘some moderation’ to the principle of general deterrence, for which the applicant was not an ‘ideal’ candidate. The judge stated that, even so, general deterrence was ‘still … a very significant sentencing purpose’.[5] Thirdly, the applicant’s disabilities were relevant in the sense described in the fifth and sixth limbs of Verdins.[6] The judge noted that the applicant’s condition would mean that imprisonment would weigh more heavily upon him than it would on a person without his disabilities. There was also a significant risk that imprisonment would have a particularly adverse effect on the applicant’s mental health. The judge stated that those matters both mitigated the position of the applicant ‘significantly’.[7]
[5]Ibid [84].
[6]R v Verdins (2007) 16 VR 269 (‘Verdins’).
[7]Sentencing Remarks [85].
The judge assessed the objective seriousness of the applicant’s offending as sitting ‘in the mid-range’ and his moral culpability at a similar level.[8]
[8]Ibid [86].
Proposed grounds of appeal
The applicant seeks leave to appeal on the following three grounds:
1.The sentencing judge erred in the application of the Verdins principles by finding that the applicant’s manner of driving — ‘affected by alcohol and negotiat[ing] the bend in the road too quickly’ — was ‘not mitigated by [his] disabilities’ (Sentencing Remarks [77]).
2.The sentencing discretion miscarried because the sentencing judge was not provided with the expert report that he had ordered concerning whether the applicant’s intellectual disability was ‘operative and relevant to this offending’ and fresh evidence should now be admitted of that expert opinion to avoid a substantial miscarriage of justice.
3.The sentence imposed upon the applicant has become disproportionate and excessive because of the impact of the conditions of his confinement upon the applicant and fresh evidence should be admitted to show the ‘true state’ of the burden of imprisonment upon the applicant.
First proposed ground — moral culpability
Counsel for the applicant submitted that the sentencing judge had found that the applicant’s disability had no relevance to the assessment of his moral culpability and that this conclusion was not open. The applicant submitted, in particular, that the sentencing judge erred in finding that the applicant’s disability had not borne on his driving while affected by alcohol or on his taking the bend in the road too quickly, and in failing to consider the effect of the applicant’s disability on his decision to drive after he had been drinking.
The judge’s approach was said to be contrary to the High Court’s statement in Muldrock v The Queen to the effect that a ‘lack of capacity to reason, as an ordinary person might, as to the wrongfulness of … conduct will, in most cases, substantially lessen the offender’s moral culpability’.[9] Reference was also made to this Court’s decision in DPP v Borg,[10] in which a driver’s cognitive limitations were found to have been linked to the poor decisions made in that case.[11] The Court exercised its residual discretion to leave in place a community correction order without any period of incarceration, while noting that this conclusion had not been reasonably open to the sentencing judge and some period of actual imprisonment had been demanded.[12]
[9](2011) 244 CLR 120, 139 [54] (‘Muldrock’).
[10](2016) 258 A Crim R 172 (‘Borg’).
[11]Ibid 182 [56], 185–6 [71].
[12]Ibid 193 [111].
The applicant submitted that the judge’s treatment of youth as being equivalent to intellectual disability for these purposes was mistaken. Being young was a developmental stage whereas an intellectual disability was a lifelong condition for which some allowance could be made in terms of moral culpability.
The respondent submitted that the evidence did not compel the conclusion that the applicant’s disability reduced his moral culpability. Dr MacKenzie had given evidence that the applicant understood the difference between right and wrong. There was no evidence that he did not understand the consequences of drink driving or driving dangerously. Dr MacKenzie had said at one point in her evidence that the applicant’s capacity to decide whether or not to drink on the night was not affected by his intellectual condition. She had also said that he could understand speed signs. The only relevant matter raised was the potential for the applicant to be easily distracted by reason of his condition. But there was no suggestion that he had been distracted when he took the corner too quickly. Counsel for the respondent submitted that the High Court’s dictum in Muldrock was inapplicable in this case and pointed to the different factual circumstances of Borg.
The respondent contended that the sentencing judge was correct to recognise that no lesser driving standard applied to the applicant by reason of his intellectual disability. It was said that there was no error in citing authority concerning the relevance of youth in this context.
Finally, the respondent submitted that the judge had not treated the applicant’s intellectual disability as irrelevant to his moral culpability. Counsel noted the judge’s treatment in this regard of the applicant’s failure to ensure his passengers were wearing seat belts and his failure to heed the warning from Mr Livingstone.
For the reasons that follow, this ground is not made out. As the respondent submitted, it was not in doubt that the applicant understood the wrongfulness of both drinking and driving and dangerous driving. In that regard, the passage cited from Muldrock is not on point. But that does not answer the larger question, which is whether the applicant’s intellectual disability mitigated his moral culpability in the circumstances of this case. As the applicant submitted, Borg shows that intellectual disability is relevant to sentencing for driving offences.
This was an issue upon which the judge was troubled by the lack of clear evidence (as further discussed under proposed ground 2, below). In the end, he appears to have rested his conclusion, that the manner of the applicant’s driving was not mitigated by his disability, upon the obligations that apply to all licensed drivers. He relied upon two cases: DPP v Whittaker[13] and DPP v Neethling.[14]
[13](2002) 5 VR 508 (‘Whittaker’).
[14](2009) 11 VR 466 (‘Neethling‘).
As the judge observed, these cases indicate that a youthful driver is subject to the same obligations as a driver as an adult. But neither of those decisions supports a conclusion that youth is not a mitigating factor in respect of driving offences. In Whittaker, as the judge set out, O’Bryan AJA stated that a young person must accept adult responsibility for their actions behind the wheel of a motor vehicle, but he then repeated with approval the following observation of Callaway JA in R v Sherpa regarding youth and culpable driving:[15]
General deterrence must usually be emphasised in the punishment of this offence and there is correspondingly less scope than in the case of some other crimes for leniency on account of an offender’s youth. That does not mean that there is no scope for youth and concomitant prospects of rehabilitation to influence the disposition.
[15]Whittaker (2002) 5 VR 508, 514 [23] (O’Bryan AJA, Winneke P agreeing) quoting R v Sherpa (2001) 34 MVR 345, 348 [11] (Callaway JA, Ormiston JA and O’Bryan AJA agreeing).
In Neethling, the Court stated that driving was an adult responsibility which must be discharged accordingly.[16] The offender, who was in year 12 and had held his licence for 12 days, had abandoned that responsibility and so his culpability was to be viewed as high. However, the Court went on to consider the relevance of the offender’s youth at greater length, concluding as follows:[17]
It is precisely because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance, and youth must be given relatively less weight. In the present case, the victims were themselves young people. The importance of general deterrence is to try and prevent the very kind of damage which occurred here.
[16]Neethling (2009) 11 VR 466, 475 [43] (Maxwell P, Vincent JA and Hargrave AJA).
[17]Ibid 477 [55] (Maxwell P, Vincent JA and Hargrave AJA).
This passage illustrates two things. First, youth remains relevant to an assessment of moral culpability in driving cases but is given relatively less weight. Secondly, the reason why that is so is that there is a well-known tendency for young drivers to drive dangerously, such that general deterrence is of great importance. In other words, the rationale for the different treatment of youth is referable to the need to discourage young people from driving dangerously. Both points indicate that, if the sentencing judge regarded youth as being irrelevant to moral culpability, and applied that reasoning to the applicant’s intellectual disability, he fell into error.
On their face, the sentencing remarks do say that the reason why the applicant’s disability does not mitigate the manner of his driving is because compliance with road laws is expected of all drivers. However, the argument had proceeded on the basis of the expert evidence of Dr Fisher; in particular, the prosecutor had argued that Dr Fisher’s report did not deal at all with the offending or the circumstances of the offending, including what had happened at the hotel, what decisions were made and how the applicant had driven. After explaining that he did not regard the seat belt issue or the warning not to drive as aggravating circumstances, the judge went on to say:[18]
It may be that your disabilities and your tendency to acquiesce were relevant in other ways in influencing your behaviour on this night, but there is simply not enough evidence available to make any further findings in that regard.
[18]Sentencing Remarks [82].
This conclusion indicates that the judge did not rely on a general proposition that mental disability was irrelevant to moral culpability. He decided the question on the evidence and Dr Fisher had not addressed the effect of the applicant’s intellectual disability upon his offending behaviour.
In that respect, the respondent’s submission that the judge’s conclusion was open to him should be accepted. At the least, it was open to the judge to decide that the evidence did not support a conclusion that the applicant’s disability reduced his moral culpability (beyond the matters mentioned being treated as not aggravating).
There was discussion at the hearing before us as to the prospect of the applicant being distracted. The judge could have inferred from the situation of an overcrowded car of intoxicated young people that concentration would have been made difficult for the applicant and that this could have been made worse by his disability. But he was not obliged to take that view of the facts. There was no evidence of any specific distraction. The applicant had simply taken the corner too quickly.
Apart from that prospect, there was little or nothing upon which the judge could decide that the way in which the applicant drove, or the circumstances in which he came to have drunk too much to drive safely, were affected by his disability. The conclusion set out above was well open.
Leave to appeal should be granted on this ground, but the ground fails for these reasons.
Second proposed ground — new evidence as to moral culpability
The applicant relied on fresh evidence in support of the second and third proposed grounds of appeal. That evidence consists of an addendum prepared by Dr Fisher (bearing on the second ground), and two affidavits of the applicant’s mother Leanne Nicholson and an updated psychological assessment prepared by Dr Godfredson (in relation to the third ground).
The second proposed ground is that the sentencing discretion miscarried because the judge was not provided with an expert opinion which he had ordered as to whether the applicant’s intellectual disability was ‘operative and relevant’ to his offending.
The judge had ordered a pre-sentence report under s 8A(1) of the Sentencing Act 1991 as to whether the applicant suffered from an intellectual disability and whether that disability was operative and relevant to the offending. As it transpires, however, events took a different course. The judge’s associate subsequently advised the parties that Forensicare would not provide such a report because the applicant did not have an acquired brain injury. Instead, the associate invited the defence to have the applicant examined by a neuropsychologist in order to determine the extent of his disability and whether it was connected with his offending.
The applicant’s solicitors then asked Dr Fisher to provide a report as to the applicant’s intellectual disability. By oversight, they omitted to ask Dr Fisher for her opinion as to whether the applicant’s disability was operative and relevant to the offending.
This proposed ground of appeal has two aspects. The first is that the sentencing discretion miscarried because the judge proceeded to sentence without the report which he had ordered. This argument cannot succeed, because the judge sentenced on the material which the applicant had placed before him. The judge had given the defence an opportunity to place whatever evidence it wished before the court in respect of the connection between the applicant’s disability and the offending. There was no suggestion, when the plea hearing resumed after receipt of Dr Fisher’s report, that it was inadequate to the task.
The more substantive aspect of this proposed ground is that the further report of Dr Fisher should be admitted by way of fresh evidence to avoid a miscarriage of justice. The oversight in failing to ask Dr Fisher the second question raised by the judge should, it was submitted, be permitted to be cured on appeal.
The further report is not ‘fresh’ evidence in the strict sense because it is not evidence that could not have been obtained at the time of the plea by reasonable diligence.[19] So much was not contested before us. Notwithstanding this limitation, the Court retains the ability to receive ‘new’ evidence where necessary in order to avoid a miscarriage of justice.[20] However, that power is not exercised lightly. The High Court said in Betts:[21]
Forensic choices are made in the conduct of the offender’s case at the sentence hearing. These include the material that is to be relied upon in mitigation of penalty and whether any of the facts are to be contested. … Justice does not miscarry by reason of the refusal to allow an appellant to run a new and different case on the question of re-sentence. Exceptional cases apart, the question of whether some other sentence is warranted in law is answered by consideration of the material that was before the sentencing court and any relevant evidence of post-sentence conduct.
[19]Betts v The Queen (2016) 258 CLR 420, 426 [10] (‘Betts’).
[20]Ibid.
[21]Ibid 427 [14].
The applicant submitted that the further report of Dr Fisher shows that his disability was ‘operative and relevant’ to the offending so as to demonstrate reduced moral culpability. In other words, it was said to cure the shortfall in the evidence referred to in respect of ground 1, above. Were that to be established, there would be a good argument for now permitting reliance on the evidence, in circumstances where it was not provided to the sentencing judge only as a result of the oversight of the applicant’s solicitors. But for the reasons set out below, the further material does not alter the overall state of the evidence on this subject.
Dr Fisher was asked for the purposes of the appeal to provide an opinion as to whether the applicant’s intellectual disability was ‘operative and relevant to the offending’. She expressed the opinion that the applicant’s intellectual disability was a developmental disorder which significantly impacted on all aspects of his life. Given the nature of his disorder, his disability would be considered to have been ‘operative’ at the time of the offending.
As to whether the applicant’s intellectual disability was ‘relevant’ at the time of the offending, Dr Fisher referred to a number of decisions or judgments which the applicant made on the night of the offending, including whether to consume alcohol when he would be driving a motor vehicle, consistent monitoring of his alcohol intake, understanding as to how his alcohol intake might impact his driving ability, deciding whether to drive a motor vehicle following alcohol use, deciding whether to accept passengers in his car and allowing his passengers not to wear seat belts. Dr Fisher expressed the opinion that the applicant’s cognitive disability impacted upon his decision-making abilities and resultant behaviour in a number of ways, namely:
(a) slowed processing speed (within the ‘extremely low’ range) meant that the applicant was slow to take in, process and respond to information;
(b) limited attentional capacity (again within the ‘extremely low’ range) led to the applicant becoming overloaded and unable to focus on or take in information, especially in busy environments with lots of distractions;
(c) poor memory (also within the ‘extremely low’ range) meant that the information available to inform the applicant’s decision-making might not be detailed or accurate;
(d) broad-ranging executive function difficulties (evidenced by ‘extremely low’ range performances on tasks requiring planning and organisation, verbal abstract reasoning and cognitive flexibility) impaired the applicant’s ability to integrate, conceptualise, generate and reason through information in any complex and detailed way;
(e) impaired ability (again in the ‘extremely low’ range) to accurately interpret interpersonal social exchanges meant that the applicant was at risk of inaccurate and inappropriate interpretation of key social interactions, and that his own perceptions about what is socially acceptable were vulnerable to suggestibility from others.
Dr Fisher concluded that, because of his intellectual disability, the applicant would not have had access to the cognitive resources to guide his behaviour that those without cognitive impairments rely on when faced with complex or high risk situations. She said that his intoxication at the time of the offending would have further diminished his cognitive capabilities. Given the permanent and pervasive nature of his cognitive disability, it was reasonable to suggest that his intellectual disability was both operative and relevant at the time of the offending.
Ultimately, this material does not advance the evidence as to how the applicant’s intellectual disability affected the actions which gave rise to the charges. Although Dr Fisher referred to the various judgments and decisions made by the applicant, the ways in which the applicant’s decision-making abilities and behaviour were said to be affected were not linked to those judgments and decisions. Nothing went, for example, to his ability to understand and react to road signs or conditions or to appreciate how much he had had to drink. Instead, the report described more general matters such as difficulty with conversation, problems with overloaded information, poor memory, planning and organisational abilities and difficulty in respect of interpersonal exchanges. Dr Fisher’s existing report had already canvassed such matters.[22] In short, the further report did not take the matter further than the existing evidence, which was to the effect that the applicant’s disability affected every aspect of his life but was not shown specifically to have affected the critical decisions he made on the night.
[22]See [14] above.
For these reasons, leave to adduce the further report of Dr Fisher should be refused. While leave to appeal on proposed ground 2 should be granted, the ground cannot succeed.
Third proposed ground — fresh evidence as to prison experience
As mentioned, the applicant also sought to place fresh evidence before the Court as to his experience of imprisonment and its effect upon his mental state. The respondent in turn advanced material going to the treatment of the applicant as a prisoner in protection.
The applicant’s mother provided two affidavits describing the applicant’s experience in prison. The applicant’s parents were unable to see him at the Melbourne Assessment Prison until two days after he was sentenced. When they met with him he was inconsolable. Mrs Nicholson said that he was frightened that something was going to happen to him and that someone had already stolen a T-shirt from him. Two days later, the applicant’s partner visited him in prison and informed Mrs Nicholson that the applicant had been referred to a psychiatric nurse after he had told prison officers that he was not coping. He had been placed in observation but nobody had been told about his intellectual disability.
On 2 January 2018, some two weeks after being sentenced, the applicant was transferred to Ravenhall Correctional Centre. He had been unable to fill out forms required to enable him to receive visits. Later in January 2018, the applicant’s mother contacted the Ombudsman to try and get help for him while he was in prison and to tell the authorities about his intellectual disability.
On 25 January 2018, the applicant’s mother was contacted by his partner about a phone call that she had just received from the applicant. The applicant told her that two prisoners had threatened him and demanded a chocolate that he had in his cell. In the two weeks preceding Mrs Nicholson’s affidavit the applicant had become more distressed and called his parents crying all the time. He had cried throughout a two-hour visit on Saturday 10 February. On 13 February 2018, the applicant’s partner told his mother that a prison clinician had advised the applicant that he was classified as a serious violent offender. The applicant could not understand why he had been classified in that way. Later that day, the applicant’s partner contacted his mother and said that she had been told by someone in the prison that the applicant was not in fact a serious violent offender.
On 14 February 2018, Mrs Nicholson received an email from Corrections Victoria advising that contact had been made directly with Ravenhall to raise concerns about the applicant’s welfare and describing efforts that had been made to provide him with an opportunity to discuss his difficulties. Mrs Nicholson was told that the applicant had indeed been incorrectly classified as a serious violent offender. This had now been corrected. As at 20 February 2018, the applicant had not been seen by a psychologist. Mrs Nicholson described the applicant as ‘just deteriorating before our eyes’.
In her second affidavit, sworn on 11 May 2018, Mrs Nicholson described how she and her husband continued to visit the applicant regularly and that he was always upset and often crying. The applicant called his parents sometimes several times a day and was often crying. He had begun to spend the days in his cell alone. On 24 February 2018, the applicant was told by a clinician at Ravenhall that in her opinion he did not need to see a psychologist. His partner complained after this and soon afterwards the applicant was assigned a psychologist to see him weekly. The first session took place two to three weeks later, by which time the applicant had been in prison for nearly four months without any psychological help.
On 17 April 2018, Mrs Nicholson visited Ravenhall with the applicant’s partner and met with the psychologist, clinician and manager of the applicant’s yard. They expressed concerns about the applicant’s mental health and agreed that he seemed ‘not able to cope’. The officers promised that they would keep a closer eye on the applicant.
On 22 April 2018, the applicant cried for the first 20 minutes of his parents’ visit. They were concerned that there had not been any improvement in his mood and wellbeing since commencing sessions with the psychologist and suggested that he speak to the psychologist about prescription medications. Mrs Nicholson does not know whether that has happened.
On 8 May 2018, the applicant’s partner contacted Mrs Nicholson and told her that a staff member had contacted her about a fight that had broken out at Ravenhall earlier that day. The applicant had been approached by guards and asked where the fight was and he had pointed to the general area. Other inmates found out what the applicant had done and banged on his cell door threatening to kill him. The applicant’s partner was advised that he was likely to be moved for security reasons. Mrs Nicholson expressed fear that the applicant’s life was in danger because he was not equipped to be in a mainstream prison environment with his disabilities, because he does not think about the consequences of his actions while meaning no harm. Pending his anticipated movement to another prison, the applicant would be kept in protection for his personal safety. The next day, the only person allowed to see the applicant was his partner, who was able to see him for half an hour. She said that he had been very distressed, shaking and crying with a bad facial tic. She said that she had been told that the clinician and psychologist were recommending that the applicant be kept at Ravenhall in a different area, such as protection, as they had concerns that he might not cope if moved to a new prison. They had expressed concerns about the applicant’s mental health. Mrs Nicholson expressed her fears that the applicant’s personal safety was increasingly at risk and that his mental health was becoming worse.
In his updated psychological assessment dated 12 May 2018, Dr Godfredson gave his opinion as to the applicant’s current mental health state. He had undertaken a 90-minute interview with the applicant at Ravenhall on the previous day. Dr Godfredson described the applicant’s scores on each of the depression, anxiety and stress scales which he tested as ‘extremely severe’.
Dr Godfredson described a telephone interview with the applicant’s mother in which she shed further light on the way in which he functioned in the community. Mrs Nicholson reported that when living in the community, the applicant telephoned his parents on a daily basis for guidance on many issues, including tasks regarding which they had already provided instructions, or following advice from another person which involved more than one or two steps. She said that the applicant would not go shopping for clothes or groceries and that she took responsibility for all his banking and paperwork.
Dr Godfredson concluded as follows:
From a clinical perspective, Mr Nicholson’s current symptoms of [PTSD] appear to be far more intense than was exhibited at any point throughout his prior treatment episode. In particular, he appears to be experiencing a greater frequency of flashbacks regarding the accident, and a greater intensity of associated stress. …
The exacerbation of Mr Nicholson’s PTSD symptoms may have arisen due to several factors. Prior to his incarceration, Mr Nicholson’s symptoms were evidently contained due to the care and support provided by his partner and friends. While residing in the community, he was fearful of spending time alone which was evidently an attempt to avoid experiencing such symptoms. When he did experience distressing symptoms, he quickly made contact with his partner or parents. Furthermore, Mr Nicholson was engaged in full-time employment with his father, and often spent time with friends. Against this background, Mr Nicholson’s current means of distraction is limited to the use of colouring books while locked in a cell. Another factor contributing to Mr Nicholson’s symptoms is his perception that his incarceration serves as a constant reminder of the accident which resulted in the death of his best friend and serious injuries to others. Moreover, Mr Nicholson described feelings of guilt and shame, and the associated belief that he is being punished because he is a bad person.
Secondary to Mr Nicholson’s diagnosis of PTSD, he meets the criteria for an adjustment disorder with mixed anxiety and depressed mood. This diagnosis describes the presence of anxiety and depressive symptoms in response to an identifiable stressor, which in this case is Mr Nicholson’s incarceration, including adverse events in prison for which he has few coping resources. … Particular symptoms exhibited by Mr Nicholson include sadness, social withdrawal, fear and apprehension regarding real and imagined threats, and hopelessness regarding his future.
In my view, the task of predicting the relative burden and impact of imprisonment in the context of mental health concerns is oversimplified. Unlike the processes involved in psychological risk assessment, there exists no formula for weighing up the relevant factors, including the severity of an illness, the availability of prior supports in the community, the timeliness and availability of prison-based supports, the unpredictable nature of adverse events in prison, and personality characteristics which mediate the relationship between mental health symptoms and each of the aforementioned variables.
Given the ubiquity of mental health diagnoses among the prison population, including adjustment disorder and intellectual disability, Mr Nicholson might not be considered significantly different to the average prisoner. Furthermore, one would hope that prison-based services are well equipped to assist the many prisoners with such problems. In my view, what differentiates Mr Nicholson from the majority of offenders in prison is the high level of attention, care and support he has received from his family such that he had thrived in the community as indicated by his ability to maintain full-time employment and engage in a range of prosocial endeavours. …
The likely role of Mr Nicholson’s cognitive limitations in his adaptation to prison were succinctly outlined by Dr Fisher in her initial report. There is no need to reiterate these statements insofar as to highlight that the assessment of Mr Nicholson as ‘extremely vulnerable’ was an apt prediction as evidenced by his current presentation.
Dr Godfredson described the recent incident which had led to threats being made to the applicant and expressed the view that the applicant had forgotten instructions provided to him to minimise his risk of harm when moved to a protection unit. He said that these examples provided further evidence of the interaction between the applicant’s permanent cognitive limitations, approval-seeking personality and tendency to acquiesce in the context of competing demands even when those demands placed him at risk of harm. Dr Godfredson said that the applicant was ‘likely to be overwhelmed by the complexities of managing relationships with prison officers and inmates’ and that there was a ‘significant risk that he might unwittingly face further consequences of siding with one group over the other’.
Dr Godfredson continued:
To his detriment, Mr Nicholson’s agreeable nature and tendency to acquiesce means that he effectively masks the true extent of his cognitive limitations and concomitant dependency on others. Although I have not had access to prison documents, there appears to have been a recent flurry of activity in addressing Mr Nicholson’s needs. However, the timing of these interventions has meant that Mr Nicholson might now have a much longer journey back to his baseline mental health functioning. Moreover, I suspect that Mr Nicholson might also require a great deal of family and mental health support to cope with the unrelenting distress he has experienced during his time in prison.
Dr Godfredson made a number of recommendations that ‘may go some way to helping Mr Nicholson cope with the remainder of his time in prison’. They included a further psychiatric assessment, ongoing counselling or psychological therapy, greater opportunities for distraction from his PTSD symptoms and educational programs specifically tailored towards individuals with intellectual disabilities, which may be of most benefit if delivered on an individual basis.
The applicant sought to rely on the above evidence to show that events since he was sentenced had led him to be placed in protection and had revealed him to be unable to negotiate the prison environment by virtue of his intellectual disabilities. It was further submitted that the evidence recorded the deterioration of the applicant’s mental health while in prison. Counsel referred to R v Wooden[23] and R v Rollo[24] as cases where similar evidence of difficulties experienced in prison, beyond those anticipated at sentencing, had been admitted and the offender resentenced.
[23](2006) 45 MVR 227, 228–9 [4], 230 [7] (Callaway JA, Chernov and Vincent JJA agreeing) (‘Wooden’).
[24][2006] VSCA 154 [12], [16]–[17] (Warren CJ, Buchanan and Vincent JJA agreeing) (‘Rollo’).
The respondent submitted that, apart from the fact that the applicant had been placed in protection, the further evidence did not go beyond a working out of matters that had, in general terms, been recognised and taken into account in sentencing.[25] It was accepted that evidence concerning a prisoner’s placement in protection is a relevant factor in considering whether to reopen the sentencing discretion in the interests of justice.[26] However, the respondent sought to rely on an affidavit of Jennifer Hosking, Acting Assistant Commissioner of the Sentence Management Division of Corrections Victoria, to the effect that the applicant is residing in a protection unit in which he would continue to receive support, could work in the bakery and be out of his cell for 11.5 hours per day (the same time as for mainstream prisoners). Ms Hosking confirmed that the applicant was not eligible for prison programs because he was assessed as being at a low risk of reoffending. The respondent submitted that Ms Hosking’s affidavit also showed that being placed in protection was no longer presumed to be especially onerous, as it had been in earlier times. As such, it could not be said as readily to re-open the sentencing discretion.
[25]R v McLachlan (2004) 8 VR 403, 407 [11] (Chernov JA, Winneke P and Vincent JA agreeing).
[26]R v Rostom [1996] 2 VR 97, 102 (Charles JA, Callaway JA and Vincent AJA agreeing).
The principles governing receipt of evidence on appeal concerning events since an offender was sentenced are set out in R v Nguyen.[27] Relevantly for present purposes, the new evidence must demonstrate the true significance of facts in existence at the time of the sentence.[28] The present case is not of that kind. Instead, it represents the working out of matters of which the sentencing judge took full account, namely the effect of the applicant’s disabilities on his experience of prison, and the effect of prison on his mental health. He noted Dr MacKenzie’s opinion that the applicant would find it extremely difficult to navigate the prison environment and was likely to be extremely vulnerable to exploitation and manipulation within the prison system.[29] He also took account of Dr Fisher’s opinion to similar effect.[30] The judge concluded:[31]
The psychologists agree, and the Crown accepts, that your condition will mean that imprisonment will weigh more heavily on you than it would on a person without your disabilities. There is also a significant risk imprisonment will have a particularly adverse effect on your mental health. Those matters both mitigate your position, in my view significantly.
[27][2006] VSCA 184 [36]–[37] (Redlich JA, Maxwell P and Neave JA agreeing).
[28]Ibid [36](ii); R v Rostom [1996] 2 VR 97, 99 (Charles JA, Callaway JA and Vincent AJA agreeing); R v McLachlan (2004) 8 VR 403, 406–7 [10] (Chernov JA, Winneke P and Vincent JA agreeing).
[29]Sentencing Remarks [45].
[30]Ibid [53]. See [15] above.
[31]Sentencing Remarks [85].
It is apparent from the sentence imposed, including the non-parole period, that the judge did moderate the sentence significantly. The evidence as to the applicant’s status as a protected prisoner does not alter the underlying factual basis upon which the judge imposed sentence. That evidence reveals that status as a protected prisoner is not necessarily more burdensome than could have been anticipated without knowing that an offender would go into protection. In the applicant’s case, it has not, of itself, imposed undue hardship upon him but has assisted in alleviating risks arising from the applicant’s disability which were within contemplation when he was sentenced.
The evidence as to the deterioration in the applicant’s mental health sadly bears out the concerns expressed by the judge. It appears that the applicant now has access to specialist assistance and that initial difficulties in that respect, while very unfortunate, have been overcome. Plainly, the applicant is suffering from the diminished ability of his family to support him in prison. Again, however, this was understood and taken fully into account by the sentencing judge by way of mitigation. The case is not like Wooden, in which the prisoner had a severe major depressive episode after sentencing leading to her hospitalisation, or Rollo, where the absence of psychiatric treatment had not been anticipated. The deterioration of the mental health of the applicant in this case has resulted from prison conditions themselves, whose likely effect the sentencing judge fully understood and acknowledged.
Since the new evidence shows only that the judge’s concerns were, unfortunately, well-founded, the Court should not receive it. But it is clear that the evidence could not have made any difference to the sentence imposed in any event. As the sentencing judge observed, general deterrence remained a very significant sentencing purpose in this case and both general deterrence and the need for denunciation meant that a term of imprisonment was required.[32] The sentencing judge appropriately tempered these considerations by reference to the applicant’s exceptional mitigating circumstances, including not only his disabilities but also his evident good character and excellent prospects for rehabilitation. Fully recognizing those matters, this Court could not impose any lesser sentence without failing properly to recognise the terrible results of the applicant’s actions and the need to ensure that the sentence imposed for these offences might serve to warn other drivers of the potentially catastrophic consequences of drinking and driving.
[32]Ibid [84], [87].
Leave to appeal should be granted but the appeal must be dismissed.
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