Spence v The Queen
[2013] VSCA 197
•30 July 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0071 | |
| DYLAN JAMES SPENCE | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NETTLE and COGHLAN JJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 30 July 2013 | |
| DATE OF JUDGMENT | 30 July 2013 | |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 197 | |
| JUDGMENT APPEALED FROM | DPP v Spence (Unreported, County Court of Victoria, Judge Pullen, 8 April 2011) | |
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CRIMINAL LAW – Sentencing – Intentionally causing serious injury and related charges – Applicant sentenced to a total effective sentence of five years and nine months’ imprisonment with a non-parole period of two years and 10 months – Fresh evidence – Medical evidence of worsening condition of a degree not foreseen at time of sentencing – Appeal allowed – Non-parole period reduced to two years and four months – R v Nguyen [2006] VSCA 184 applied.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr C B Boyce | Grigor Lawyers |
| For the Crown | Mr G J C Silbert SC | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
This is an application for leave to appeal against a total effective sentence of five years and nine months’ imprisonment, with a non-parole period of two years and 10 months, imposed on the applicant on 8 April 2011 on pleading guilty to one charge of intentionally causing serious injury, one charge of common assault, one charge of recklessly causing serious injury and one charge of affray.
There is only one proposed ground of appeal: that fresh evidence establishes that the applicant’s medical condition is considerably worse than was anticipated at the time of sentencing; consequently, that prison is and will continue to be even more burdensome for the applicant than the sentencing judge contemplated it might be; and that there is now a significant risk that prison will have an adverse effect on the applicant’s health. On that basis, it is contended that the sentence imposed has resulted in substantial miscarriage of justice.
The Crown opposes the application. It contends that evidence of medical condition which the applicant seeks to adduce in support of the application does not meet the test of fresh evidence essayed by Redlich J A in R v Nguyen[1] and ought not be received.
[1][2006] VSCA 184, [36].
The facts of the offending
The facts of the offending, as found by the sentencing judge, were as follows:
1) Charge 1 related to a violent attack on Steve Gioskos at the Lounge Bar in Melbourne. The applicant, a co-accused and three other friends began drinking alcohol at approximately 2.00 pm on 16 December 2009. They continued drinking alcohol throughout the afternoon at various locations before arriving at the Lounge Bar at between 1.00 am and 2.00 am on 17 December 2009.
2) At much the same time Mr Gioskos arrived at the Lounge Bar in the company of a lady, Meaghan King.
3) At some time between 2.30 am and 3.00 am, the applicant approached Ms King and engaged her in conversation while Mr Gioskos was at the bar getting her a drink After Mr Gioskos returned, he asked Ms King to dance with him and headed towards the dance floor. The applicant grabbed Ms King by the hand and continued to speak to her but Ms King turned away from him and headed towards Mr Gioskos.
4) After Ms King and Mr Gioskos had been on the dance floor together for approximately five minutes, the applicant approached them. There was a discussion between the applicant and Mr Gioskos about Ms King and whether or not he and Ms King were a couple.
5) At some point after that discussion, there was what the judge described as ‘a push and shove scuffle on the dance floor where it appeared that the applicant and his friends were attacking Mr Gioskos.’ Mr Gioskos had his head down and arms up trying to protect his head. Two of the applicant’s friends were punching Mr Gioskos to the kidney and rib area while a third held Mr Gioskos in a headlock.
6) At the same time, the applicant swung a glass towards Mr Gioskos’ face in a motion which one of the Lounge Bar bouncers, Mr Nidea, later described as a ‘wide haymaker punch’. The glass hit Mr Gioskos on the left-hand side of his face, shattering on impact and causing immediate cuts to his face. The applicant’s two friends continued to punch Mr Gioskos to the head and body while he again attempted to shield himself from the blows.
7) Eventually, Mr Gioskos was able to pull out pieces of glass from his face and neck, and was assisted outside the premises by Mr Nidea. The applicant and his friends were asked to leave the venue and when they did not go immediately they were escorted out by security.
8) Once outside, Mr Gioskos confronted the applicant and his friends in an aggressive manner and was restrained by security whilst the applicant and his friends were told to move on. The applicant and his friends walked away only about five metres and then turned around and ran back towards to Mr Gioskos. Security footage showed the applicant rushing towards Mr Gioskos and pushing him over and then being restrained in the doorway.
9) Mr Gioskos required transportation to the Royal Melbourne Hospital where he received fifteen sutures for multiple facial lacerations. He also sustained bruising and soreness to his face and upper body and emotional disturbance. Photographs tendered on the plea showed very significant gashes and distortion. At the time of sentencing he was awaiting further surgery to reduce the scarring. Those are facts which comprised Charge 1, intentionally causing serious injury.
10) After being restrained, the applicant and his friends left the Lounge Bar and walked towards McDonalds. Once there, the applicant cleaned and dressed his right hand where he had sustained cuts as a result of striking Mr Gioskos with the glass.
11) Then they took a taxi from McDonalds to the Crown Casino. When they arrived at the Casino, they headed towards a bar. Shane Waters waved them over to join him and his friends, Kimberley Hartnet and Mathew Elder, at the poker machines. The two groups were not previously known to each other.
12) A discussion ensued between Mr Waters and the applicant and his friends which led to Mr Waters and the applicant demonstrating kickboxing moves. A short time later, the applicant punched Mr Waters in the face causing him to fall backwards. Video surveillance showed the applicant also attempting to fly kick Mr Waters to the chest. Mr Waters managed to evade that kick and began to run away, placing a chair down after him to create distance. The applicant and his co-accused ran after Mr Waters and knocked him to the ground and continued to assault him rendering him unconscious. Those are the facts which comprised Charge 2, assault.
13) After the attack on Mr Waters, Mr Elder got out of his chair. The applicant punched him in the face, causing him to hit his head on the poker machine and fall backwards. Video surveillance showed the applicant punching Mr Elder a total of three times to the face. Mr Elder attended the Alfred Hospital and scans confirmed that he had sustained multiple facial fractures causing significant swelling and bruising. Those are the facts which comprised Charge 3, recklessly causing serious injury.
14) Throughout the altercations, Jeanette Watkins was seated at the poker machines nearby and heard the fight unfold. She described hearing a punch connect and feeling terrified and frightened. Those are the facts which comprised Charge 4, affray.
The applicant’s medical condition at the time of sentencing
The applicant suffers from ulcerative colitis which is a disease that cannot be cured, and he also suffers from mycosis fungoides which in the past was treated with radiation and is at present in remission. Evidence of those facts was tendered on the plea and, on the basis of that evidence, defence counsel submitted that prison would be more burdensome for the applicant than for a man of ordinary health and that the judge ought moderate penalty to make allowance for it.
The evidence was largely comprised of reports of a specialist gastroenterologist, Dr Peter Pritchard, which were prepared between November 2006 and January 2007. It is necessary to refer to those reports in detail.
In his first report, dated 27 November 2006, Dr Pritchard wrote this:
Dylan has the recent diagnosis of ulcerative colitis.
Dylan has had some PR bleeding over the last few months which has been particularly worse over the last six weeks. His bowels would open about 10 times per day with loose, bloody mucousy motions associated with abdominal cramping and urgency. He has also been off his food and lost about 4kg in weight.
Colonoscopy undertaken by Dr Campbell Penfold on the 9th of November has demonstrated proctosigmoiditis. Biopsies are consistent with proctocolitis. Transverse colonic biopsies were normal. Caecal biopsies however demonstrated mild colitis which can occur in patients with ulcerative colitis.
Dylan has a previous history of Mycosis Fungoides treated with radiotherapy about two years ago. He has also had fracture right wrist required a bone graft for healing.
…
On examination the abdomen was soft and non-tender with no visceral enlargement nor any masses. Other examination was unremarkable.
…
I have recommended that we initiate steroids and have commenced him on prednisolone 25 mg daily. To assist with long term management I have also started Dylan on Salazopyrin at a dose of 500 mg 2 bd.
Dylan is also to have some routine biochemistry and haematology. He will be reviewed in a weeks time.
…
In his next report, dated 4 December 2006, Dr Pritchard wrote that:
Dylan was reviewed on the 1st of December 2006.
Over the last week Dylan has made a significant improvement with reduction in his bowel frequency from 10 to 3 times daily. His motions however are still loose and there is some blood present.
To hasten Dylan’s improvement further I have recommended for a short period of time that Dylan increase the dose (in handwriting) of prednisolone to 25 mg bd to 35 mg bd. He will then reduce after a week to 30 mg and then after a further week back to 25 mg.
I have recommended that he be reviewed just prior to Christmas.
Dylan is also on iron replacement therapy. He will have repeat iron studies taken before the review….
In the following report, dated 20 December 2006, Dr Pritchard wrote that:
Dylan was reviewed on the 15th of December 2006.
He is much improved and is now down to one formed bowel motion per day with no significant blood. Dylan is currently still on a high dose of prednisolone and will now start to reduce this. He continues on Salazopyrin 1 gm bd.
I have arranged to review Dylan again in January.
…
Then in his final report, dated 15 January 2006 [sic, 2007], Dr Pritchard wrote:
Dylan was reviewed on the 12th of January 2007.
Dylan is currently well. He has had some slight diarrhoea with reduction of his prednisolone a couple of days ago to 10 mg daily but no blood. He at present continues on the prednisolone and Salazopyrin 1 gm bd.
Dylan will gradually reduce his prednisolone over the coming month and will be review in February.
Based on those opinions, defence counsel‘s submission to the judge was as follows:
In 2007 he was diagnose[d] with ulcerative colitis, which is a condition similar to Crohn’s disease. And there’s perhaps some sort of dispute amongst doctors as to whether it’s an autoimmune disease or not, but it’s similar, and it’s one of those nasty intermittent diseases with period of exacerbated symptoms, and then periods that are relatively symptom-free. There is no cure for it, but there is treatment, and the treatment essentially, as I think I indicate to your Honour is - - - When the condition flares, there’s medication, it’s a steroidal cortisone type of medication. What [sic] that controls the complaint he can then regulate it for a time with diet which is a diet that means he can’t have wheat, sugar – it’s gluten-free, wheat free, lactose free and sugar free. So it’s called a specific carbohydrate diet. And when the conditions flares, it is painful and for him what causes the condition to flare is stress and it would be no surprise to your Honour that he ‘s currently suffering the condition. For which he takes the cortisone Prednisolone…
Later in the plea, there was the following exchange as to the significance for sentencing purposes of the applicant’s condition:
COUNSEL: That will complete the material that we’d seek to give to your Honour. We can give to your Honour some learning as to what t-cell lymphoma and ulcerative colitis is, but I think your Honour has a fair appreciation from the witnesses.
HER HONOUR: I understand enough about it I think. I’m really perhaps more interested, if that’s the right term, in the impact it will have on his time in custody.
COUNSEL: The impact can be – and not overstated [sic, and not to overstate it], your Honour, the impact can be said to be this; it will make his time more burdensome than for others who don’t have the condition because stressful situations cause the illness to flare, and your Honour will appreciate that at this time and for some time hereafter he will be in a stressful situation.
…
COUNSEL: Yes. And that he will need during periods when the illness flares to take the medication and other times will need to maintain a special diet. Now it’s not said that special diets cant’ be - - - arranged in prison, nor can it be said that medication can’t be given.
HER HONOUR: It’s really in stressful situations that situation might be worse so it will require medication.
COUNSEL: That’s so. He seems to be the type of person, and Your Honour will read this in Mr Cummins’ report, that when he is under stress he seems to manifest it – or it manifests itself in illnesses on or in his body, such as the rare form of cancer or the ulcerative colitis….
In effect, that was the totality of what was said about the subject.
The allowance made by the judge for the applicant’s medical condition
Evidently, the judge made some allowance for the applicant’s medical condition and what her Honour understood would be the effect of it on him while in custody. In her sentencing remarks, her Honour said this about it:
In addition, in 2007 you were diagnosed with ulcerative colitis, to which I have referred, a condition similar to Crohn’s disease. There is no cure and you were prescribed medication, Prednisolone. You also required a specific carbohydrate diet, with limitations on the foods that you could eat. That condition, as I have said, flares up when you are stressed.
There were medical reports before me from Dr Pritchard dated November 2006 – January 2007, which confirmed the diagnosis of ulcerative colitis, the medication prescribed for it and your previous history of mycosis fungoides: (see Exhibit 3).
And later:
[Defence counsel] directed my attention to a decision of Valayamkandathil v R.[2] The facts in that case were quite different to yours, although [Defence Counsel] was not relying on a comparison of the facts, rather, in support of his submission that imprisonment for you will be more burdensome than more able bodied prisoners. I have already stated I accept this will be so and have modified your sentence accordingly.
[2][2010] VSCA 260.
Changed circumstances since the time of sentencing
No criticism is made of that. The picture which emerged from the evidence available to the judge was one of a progressively improving condition albeit with occasional ‘flare-ups’ which, although productive of difficulty, could readily enough be controlled by means of a special gluten free diet and occasionally when necessary steroid medication. The judge could not foresee that the applicant's condition might become much worse than that or, if so, just how burdensome for him prison could become.
What is contended now, however, is that in view of the fresh evidence of the way in which the applicant's condition has developed, it is apparent that insufficient allowance was made for the debilitating effects of the disease and the consequent burden which imprisonment imposes on him relative to a prisoner of ordinary health.
The fresh evidence
In order to test the rectitude of that submission, it is necessary to contrast the evidence of the applicant’s condition which was before the judge with the evidence which is submitted as fresh evidence in support of the application for leave to appeal. The latter is essentially comprised of a further report of Dr Pritchard dated 22 April 2013, a report of Dr William Connell, consultant gastroenterologist, dated 17 June 2003 and an affidavit of the applicant sworn 12 July 2013.
In the report of 22 April 2013, Dr Pritchard stated:
…
Dylan has had a recent severe exacerbation of his ulcerative colitis which required admission to St Vincent’s Hospital from the 12th – 18th February 2013. The severity was to a degree that surgery was contemplated on an emergency basis. I have personally reviewed his admission history from St Vincent’s.
Colonoscopy at St Vincent’s on the 13th February 2013 demonstrated severe colitis (pan colitis) extending to the hepatic flexure (about 80% of the colon – 70-80 cm).
Dylan’s ulcerative colitis however was brought under moderate control with intensive medical therapy that is normally only used in the most severe cases. He required intravenous steroids together with Cyclosporine and subsequently Azathioprine.
Cyclosporine is only use as a salvage mediation the most severe cases where surgery is being threatened. It can avoid surgery on a temporary basis in about 80% of people but on a long term basis at least those people will require surgery at some stage and that surgery usually entails a total colectomy.
Maintenance of control of ulcerative colitis when of a severe nature requires regular medical monitoring and specialist care. The drugs that are used are potentially very toxic and can have significant side effects. They need close therapeutic monitoring in order to avoid such serious side effects which in some cases … can be life threatening.
With regard to the nature of severe ulcerative colitis in its most sever[e] case it is usually associated with inflammation and ulceration around the entire colon and subsequent dilation of the colon with what is called ‘toxic megacolon’. Should this occur this is a medical emergency because it can be associated with colon peroration, severe sepsis and death.
My impression at present is that Dylan’s colitis is under partial control but conditions are not optimal at present. It is also well recognised that stress contributes substantially to recurrent episodes and also to the severity to any episode of ulcerative colitis. Part of the management of colitis is rest and the avoidance of stress. There also needs to be flexibility to allow variation of medication, especially steroids, according to current symptomatology.
I think Dylan remains in a high risk situation and at it most extreme should his condition worsen then it could be associated with mortality.
In his report of 17 June 2013, Dr Connell, Consultant Gastroenterologist, stated:
…
In 2003, [the applicant] was treated for Mycosis fungoides. In 2007, he was diagnosed with ulcerative colitis. This condition was relatively well controlled until earlier this year when he experienced a severe flare requiring inpatient admission that required salvage therapy with intravenous cyclosporin[e]. This therapy is usually reserved for severe cases that are unresponsive to usual treatment (steroids). After a week in hospital, his condition improved sufficiently for him to have the intravenous treatment stopped, and he was started on oral cyclosporine and azathioprine prior to discharge. Both these drugs require careful monitoring with regular blood tests to avoid his side effects. Normally oral cyclosporine is given for 3-6 months, and azath[i]oprine given indefinitely.
He was reviewed in the Inflammatory Bowel Diseases clinic by Dr Emily Smith (Gastroenterology fellow) at St Vincent’s hospital on April 8 2013. At this time there was partial symptomatic improvement and his blood tests had improved markedly. The dose of both the Cyclosporin and azathioprine were increased, and arrangements made for ongoing blood test monitoring at the prison and for re-assessment in June, 2013.
Dylan was re-admitted to St Vincent’s Hospital on June 12. Clinically he was well and a colonoscopy showed resolution of the bowel inflammation. Biopsies from the colon taken confirmed quiescent disease. His blood tests had normalised. Accordingly, it was decided that cyclosporine could be stopped, but azathioprine would be required indefinitely.
Dylan must remain on the azathioprine long term to reduce the risk of further flares of colitis. Non-compliance with the medication will increase the risk of flares and the need for surgery (removal of the entire colon and ileostomy). In patients responding to salvage cyclosporine therapy for severe ulcerative colitis, the eventual risk of colectomy at one year is still reasonably high (up to 50%). This risk is reduced by the strict daily use of azathioprine.
Given that his colonic mucosa has now healed there are no specific dietary recommendation that we would make from the point of view of his colitis. On the other hand, Dylan does describe a long history of irritable bowel symptoms which can often by improved by dietary restrictions, especially by reducing carbohydrate intake.
Disease flares are common in the natural history of ulcerative colitis, but the cause of flares is not always apparent. Common causes of flares include medication non-compliance, intercurrent gastrointestinal infection, extreme psychological stress, and the use of anti-inflammatory medications.
In summary Dylan has improved markedly since his acute illness in February, 2013. His recent colonoscopy shows that the colonic mucosa has now healed and his blood test have returned to normal limits. Despite this, Dylan will require close observation from his treating gastroenterologists, strict medication compliance and regular blood tests (at least every 3 months) given the risk of future disease flares. He has follow up appointments booked in the Inflammatory Bowel Diseases clinic at St Vincent’s Hospital and will continue to be seen by either Dr Smith or one of the consultant Gastroenterologists. The structure of the clinic means that the same clinician may not always by available every week but an endeavour will be made to maintain continuity of care where possible.
Although not apparent from Dr Pritchard’s or Dr Connell’s reports, it is probable that the severe flare-up in the applicant’s condition was caused or contributed to by poor blood monitoring in the prison, confusion in the prison concerning the time of blood tests and medication doses, and the unavailability to the applicant in prison of a low residue diet. So much is apparent from the consultation notes of Dr Emily Smith, Gastroenterology Registrar at St Vincent’s Hospital, which were obtained by the applicant’s solicitors from the hospital by means of a Freedom of Information request. They include the following:
29 year old prisoner wither severe UC.
Admitted to SVH with flare of Sx (previously had been diagnosed mild proctitis – 2009 with no no [sic] specific Rx).
On colonoscopy on 13/2/13 found to have severe pan colitis c.w. UC.
Failed IV hydrocort and progressed to CyA salvage. Commenced on AZA
–D/C back to the prison on 150 mg of AZA and oral cyclosporin[e] 200 mg BD. Also on salofalk 2g daily.
This is his first review in clinic since d/c.
Issues:
–Poor blood monitoring at the prison and confusion re timing of blood tests and medication doses.
–Cyclosporin[e] blood tests initially taken POST dose at port phillip (levels > 900). Dose then reduced to 100 mg …
…
Poor patient compliance with meds and blood tests as per prison medical staff [3]
…
C/O difficulty accessing low residue diet at the prison.[4]
Imp:
Pan colitis on oral Cya and AZA for salvage therapy.
Currently underdosed with both CyA and AZA
Slow improvement in Sx
Some logistical issues at the prison with regard to cya monitoring and dosing
I have called the prison medial officer to discuss. Made difficult by report poor compliance from patient.[5]
[3]Emphasis added.
[4]Emphasis added.
[5]Emphasis added.
The need for a low residue diet was stated in St Vincent’s progress notes dated 14 February 2013, which were also obtained by the applicant’s solicitors by way of Freedom of Information request. They include this:
NUTRITION Intial Ax 14/2/13 1645.
29 yo male admitted for mx of ulcerative colitis flare up. Referral received with thanks to r/r pt re need for oral supplement given loss 25-6 [indecipherable]
Clinical: Pf c/o pain, nil ntr. Otherwise ok. BA less frequent but sill loose + blood. Pt had re infusion today.
PMHx: lymphoma, Ulcerative colitis.
…
Nutrition DX: likely inadequate energy protein intake 2. Increased nutritional requirement with ulcerative colitis as evidenced by recent loss of weight
Goal: Prevent further wt loss.
Plan: (1) Low fibre, low reside diet …[6]
[6]Emphasis added.
Further evidence as to the need for a low reside diet is provided in the reports of Dr Jeremy Ryan dated 10 April 2013 and Dr Michelle Szwarcberg dated 15 April 2013. Dr Ryan appears to conduct a gastroenterology practice in Brighton and his report includes the following:
Ulcerative colitis is a form of idiopathic inflammatory bowel disease, a group of disorders of unknown cause believed to result from the interaction between an individual’s immune response and precipitant environmental factors including foods, which are able to generate an anomalous chronic inflammatory response in those who are genetically predisposed. These disorders involve the lining of the gastrointestinal tract and it is therefore logical to assume that ingested food has a role in the genesis of these disorders and that nutrition can be important in conjunction with pharmaceutical treatment for the amelioration of symptoms...
Inflammatory bowel disease and ulcerative colitis are associated with frequent nutritional deficiencies, the pattern and severity of which may depend on the extent, duration and severity or activity of inflammation…Nutritional supplementation is frequently used as an adjunctive therapy in the management of inflammatory bowel disease….
From the above it is clear that attention to diet is an important integral part of the long term management and optimisation of outcome in ulcerative colitis and inflammatory bowel disease in general. In brief, it is well understood that processed food, food high in saturated fat and high carbohydrate meals are less well tolerated and likely to worsen symptoms in these disorders. Dietary management consists of supplementation of nutrition with a low reside nutrient rich and low fat diet and this may take the form of liquid supplements as well as the prescription of certain foods and the avoidance of others.
Dr Szwarcberg, is a general practitioner with 25 years’ experience and has cared for may patients with ulcerative colitis. She states in her report that a holistic approach involving appropriate medication, reductions in stressors and appropriate dietary modification is most beneficial in the control of the disease. She posits that there is every likelihood of an improvement in the applicant’s condition once he is released from prison, due to the dietary change and improved medical care which will then be possible.
Finally, the applicant deposed in his unchallenged affidavit of 13 May 2013 that the prison has on occasion failed to provide him with his correct medication and failed to arrange for his blood testing, and that the prison is not able to provide him with the sort of specific carbohydrate diet which he needs. Thus:
I have … been experiencing some difficulty with prison staff whilst being held at Port Phillip Prison. There have been several occasions when the staff have forgotten to administer my medication or have provided me with the incorrect dosage. I am also supposed to have regular blood tests to determine whether the medication levels are stable. On one occasion the staff tested another prisoner with my surname by mistake.
And:
Before being incarcerated, I followed [a specific carbohydrate diet] treatment plan and had minimal symptoms.
…
I have been unable [in prison] to maintain the Specific Carbohydrate Diet, largely because the type of foods I was supposed to be eating are hard to access in the prison system.
Since being incarcerated, I have had consistent flare ups involving uncontrollable diarrhoea, passing blood and inability to digest foods. These flare ups have required treatment by way of steroids and antibiotics. The effect of these flare ups, which have gradually gotten worse over the last 2 years, have created more stress both mentally and physically.
… The medication I am being prescribed is an immune suppressant. There is a significant risk of infection in prison, which is particularly dangerous for me because these drugs increase the risk of contracting a disease. In addition to the stress and discomfort of sharing a small cell with another person and constantly having to go to the bathroom, I am aware that there are a large
number of people with communicable disease in prison, including my former cellmate who ha[d] Hepatitis B.
Analysis
The principles which apply to a sentencing appeal based on the adduction of fresh evidence are clear. As restated by Redlich JA (with whom Maxwell P and Neave JA agreed) in R v Nguyen,[7] they are that:
[7][2006] VSCA 184, [36].
a) The new evidence must relate to events which have occurred since the sentence was imposed.
b) The evidence must demonstrate the true significant of facts in existence at the time of sentence.
c) 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.
d) 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.
e) Upon the admission of the new evidence, it is unnecessary to determine with the original sentence was vitiated by error, or whether it was manifestly excessive.
f) The question is whether, on all the material now before the court ay different sentence should be substituted to avoid a miscarriage of justice.
In my view, the new evidence to which I have referred satisfies those requirements. It relates to events since sentence was passed in that it concerns the conditions to which the applicant has been subjected in prison and the consequent effects of those conditions on his medical condition; and it demonstrates, to an extent which was plainly not understood or foreseeable at the time of sentencing, the true significance of the applicant’s medical condition.[8]
[8]Cf R v Beyer [2011] VSCA 15.
As appears from the evidence adduced on the plea, it was believed at the time of sentencing that, although the applicant’s condition could possibly ‘flare up’ from time to time, it would be readily enough controllable with the aid of medication and special diet. As counsel put it to the judge on the plea, the seriousness of it was thus not to be overstated. The only added burden of it, as far as the judge was made to understand, was relatively short periods of time for which the applicant would have to take medication. It appears also to have been assumed, no doubt not unreasonably, that the special diet which the applicant needs would be provided to him.
Now, however, it emerges that the applicant's medical condition was potentially far graver than that and that the assumptions which were made about the level of care which would be afforded to him in prison were unfounded. According to the unchallenged fresh evidence, he has not been provided with the special diet which he needs, and he has not always been provided with the medication or blood testing which he needs, and that has resulted in the severe exacerbation of his ulcerative colitis which required admission to St Vincent's Hospital from 12 to 18 February 2013 and radical treatment with cyclosporine. As a consequence, as Dr Prichard observed in his report of 22 April 2013, the applicant is now in a high risk situation which potentially could lead to his death and, I add, still within a prison environment which, upon the unchallenged evidence, is far from a satisfactory environment for the minimisation of that risk.
I do not overlook that the applicant is guilty of serious offending and that, in other circumstances, the sentence which was imposed on him might well be regarded as merciful. If I may also say so with respect, it appears to me that the judge went as far as she possibly could on the basis of the evidence then available to
her to subject the applicant to the prison environment for the least time consistent with the requirements of just punishment. It remains, however, that the situation revealed by the fresh evidence is very different to what the judge foresaw or could be foreseen at the time.
Conclusion
The question then is whether a different sentence should be imposed. Despite the change in circumstances, I am not persuaded that the requirements of denunciation and general deterrence permit of any reduction in the head sentence of five years and nine months’ imprisonment. I am persuaded, however, that the applicant’s medical condition, and in particular what is now understood of its potentially life threatening extent and effect, constitute exceptional circumstances which warrant a significantly shorter non-parole period than the judge could properly have set on the basis of the evidence before her. In the result, I would reduce the non-parole period from two years and 10 months to two years and four months so that, henceforth, the applicant would be immediately eligible for parole.
COGHLAN JA:
I agree that leave to appeal should be granted for the reasons stated by the learned presiding judge and I agree with the orders proposed by him.
(Discussion re pre‑sentence detention.)
NETTLE JA:
The orders of the Court are as follows:
1. The application for leave to appeal is allowed.
2.The appeal is treated as instituted and heard instanter and is allowed.
3.The individual sentences of imprisonment passed below are confirmed.
4.The non-parole period set below is varied from two years and 10 months to two years and four months.
5.Pursuant to s 18 of the Sentencing Act 1991, it is declared that the number of days already served under the sentence is 852 days (not including this day) and it is directed that the fact of the declaration and its details be entered in the records of the Court.
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