R v Harris - [2009] VSCA 287

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 622 of 2009

THE QUEEN
	v
STEVEN HARRIS

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JUDGES	WARREN CJ and REDLICH JA
WHERE HELD	MELBOURNE
DATE OF HEARING	7 December 2009
DATE OF JUDGMENT	8 December 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 287 1^st Revision 16 December 2009, [3] and [8]
JUDGMENT APPEALED FROM	The Queen v Steven Harris (Unreported, County Court of Victoria, Judge Gamble, 28 April 2009)

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CRIMINAL LAW – Sentence - Negligently Causing Serious Injury – Appellant suffering from chronic epilepsy - Driving in full knowledge of medical condition – Driving against medical advice and whilst licence suspended – Increased moral culpability - Burden of medical condition in prison – Whether condition requires some moderation of sentence.

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Appearances:

Counsel

Solicitors

For the Appellant

Mr R F Edney

Balot Reilly

For the Crown

Mr G J C Silbert SC with

Mr B L Sonnet

Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ
REDLICH JA:

The appellant appeals his sentence on one count of negligently causing injury initially on the sole ground of manifest excess, leave having been previously granted. At the outset of the appeal an application was made to bring an additional ground based on fresh evidence.

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

On that morning you were at home with other members of your family, getting ready to attend a family Christmas function. During those preparations your younger son telephoned to advise that his cricket match, due to be played that morning at the Jacana Cricket Ground, had been cancelled due to poor weather.
Despite knowing that you had previously been considered by the medical practitioners who had diagnosed and treated you for your epilepsy to be unfit to drive and a danger to other road users if you did, you volunteered to drive the relatively short distance to the cricket ground to collect your son. You knew at that time that there were others at the house who were licensed and could have performed that task.
At approximately 9.10 am you left your home driving your 1991 Ford Fairmont sedan FNT-153. As you were driving in a southerly direction along Pearcedale Parade, Broadmeadows you were seen to stop the vehicle on the side of the road before then pulling back into the traffic and continuing south.
Some time immediately after this you suffered an epileptic fit which caused your vehicle to travel south and out of control along Pearcedale Parade. Your vehicle travelled through the intersection with Dimboola Road and picked up speed as it travelled down the hill towards the next intersection, being Pearcedale Road and Johnstone Street, and then into the car park entrance of the Broadmeadows Health Service.
Your vehicle then struck a gutter just inside the entrance which caused the vehicle to become airborne. Your vehicle then travelled over a roundabout and collided with the driver's side of a white Holden Statesman being driven…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Harris

Details

AGLC: R v Harris [2009] VSCA 287
Case: [2009] VSCA 287
Decision Date: 8 December 2009

CaseChat Overview and Summary

In the case of R v Harris, the appellant was convicted of negligently causing serious injury while driving and was sentenced to imprisonment. The appellant, who suffers from chronic epilepsy, was fully aware of his medical condition at the time of the incident. Despite this knowledge, he chose to drive against medical advice and while his driving licence was suspended. This case presented a complex interplay between the appellant's medical condition, his awareness of it, and the need to balance moral culpability with the practical implications of his condition in prison.

The primary legal issues before the court were whether the appellant's chronic epilepsy should be considered in sentencing and whether his actions demonstrated increased moral culpability. The court had to weigh the appellant's awareness and disregard of his medical condition against the potential impact of his condition in a prison environment. Additionally, the court examined whether the appellant's condition warranted any moderation in the severity of the sentence.

The court found that the appellant's chronic epilepsy was a significant factor to consider in sentencing. While the appellant's awareness and disregard for his medical condition increased his moral culpability, the court also recognised the potential burden that his condition might impose in a prison setting. After carefully weighing these factors, the court concluded that the sentence should reflect the appellant's increased culpability but also take into account the practical implications of his medical condition in prison. Consequently, the court adjusted the sentence to strike a balance between these considerations.

The final orders of the court were to modify the sentence of the appellant, taking into account his medical condition and the need to balance moral culpability with the potential burden of his condition in prison.

Orders