R v Jahanara [2006] VSCA 260 (30 November 2006)

Last Updated: 30 November 2006

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 112 of 2006

THE QUEEN
	v.
SINA JAHANARA

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JUDGES:	CALLAWAY and REDLICH, JJ.A. and SMITH, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 November 2006
DATE OF ORDERS:	1 November 2006
DATE OF REASONS:	30 November 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 260

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Criminal law – Sentence appeal – Negligently causing serious injury – Two counts – New evidence admitted in relation to count 1 as to extent and consequences of injuries at time of sentencing – Appeal allowed on count 1 – Resentenced to total effective sentence of two years’ imprisonment with non-parole period of eight months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S.M. Cooper	Ms A. Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr O.P. Holdenson, Q.C.	Tony Hargreaves & Partners

CALLAWAY, J.A.:

1 As Smith, A.J.A. explains, the Court made orders in this appeal on 1^st November 2006. I joined in those orders for substantially the same reasons as his Honour except that I relied only on the first of the two bases for admitting the new evidence referred to at [22] below.

REDLICH , J.A.:

2 I joined in the orders made by the Court for substantially the same reasons as Smith, A.J.A.

SMITH, A.J.A.:

History of the matter
3 On 21 October 2005, a presentment was filed against Sina Jahanara containing one count of negligently causing serious injury to one Foad Noori (count 1) and one count of negligently causing serious injury (count 2) to Nerissa Butt. Jahanara was arraigned and pleaded guilty to both counts.
4 The plea in mitigation of sentence took place in the County Court on 6 April 2006. On 11 April 2006, the appellant was sentenced to imprisonment for 2 years and 8 months on count 1 and 14 months on count 2. The learned sentencing judge ordered that four months of the sentence imposed on count two be served cumulatively upon the sentence on count one, giving a total effective sentence of 3 years imprisonment. He fixed a non-parole period of 12 months. He also cancelled all licences held by the appellant under the Road Safety Act 1986 and disqualified him from obtaining any such licence for a period of two years.
5 On 16 June 2006 Jahanara applied for leave to appeal against sentence pursuant to section 582 Crimes Act 1958. Leave was granted.
6 On 1 November 2006 the appeal was allowed for reasons to be published later. The sentences of imprisonment imposed below were quashed. In lieu thereof the appellant was sentenced to 20 months imprisonment on count 1 and 14 months imprisonment on count 2. A direction was made that four months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1 resulting in a total effective sentence of 2 years imprisonment. A non-parole period of 8 months was fixed and a declaration made regarding 205 days pre-sentence detention. The orders affected only the sentences of imprisonment. They left intact the convictions on counts 1 and 2 and the orders that the appellant’s driver’s licence be cancelled and that he be disqualified from obtaining any such licence for 2 years from 11 April 2006.
7 I will address first my reasons for agreeing that the appeal should be allowed. I will then turn to my reasons for agreeing in the orders made in re-sentencing the appellant.
Grounds of appeal
8 The following statement of grounds of appeal was filed on 15 August 2006.

"1. There has been a substantial miscarriage of justice (such that a different and lesser sentence should now be imposed upon the Appellant), by reason of

(a) the consequences and effects of the injuries sustained by Foad Noori (the victim the subject of count one of the presentment) being both a different nature and less serious than was disclosed by the material tendered by the Crown on the plea (see Exhibit C); and
(b) the diagnosis of Foad Noori being different from and less grave than that stated within the material tendered by the Crown on the plea (see Exhibit C) –
as evidenced in the affidavit material filed herein.

2. The sentence imposed on count 1 is, in all the circumstances of the case, manifestly excessive.
3. Both the Total Effective Sentence imposed and the non-parole period fixed by the learned sentencing judge are, in all the circumstances of the case, manifestly excessive."

The appellant does not appeal against the sentence imposed on count 2.
9 Attention was focussed on ground 1. In support of ground 1, the appellant sought to rely upon six affidavits sworn after he was sentenced, in and between June and September of this year. Counsel for the prosecution took the position that while the evidence was arguably "not fresh" the application should not be resisted because of the risk of a miscarriage of justice if it was not considered.^[1] It will be seen, from the analysis of this evidence below, that the concession was properly made. The appellant was given leave to rely on the evidence.
Ground 1- Count 1
10 Counsel for the appellant submitted that the new evidence established that the sentence on count 1 had been based on incorrect factual conclusions about the consequences of the injuries as at the time of sentencing and about their future consequences.
11 The evidence upon which his Honour had principally relied on those issues was contained in the reports of Professor Davis, a neurologist, and Dr Bala, a rehabilitation physician. They comprise the exhibit C referred to in the statement of grounds of appeal.
12 As to Foad Noori's condition and his future prognosis, Professor Davis stated as at 9 August 2005 the following

"The brain injuries are of a degree that I think that he will never work in the open work place and probably always require a degree of direction and supervision in a leading situation. If it were not for his family, he would require some form of community residential facility at least a considerable amount of carer support."

The Professor also stated that Foad Noori

"seemed to have lost most of his friends since the accident. His main social relationship is with his brother."

After referring to Foad Noori's mother being pessimistic about the possibility of any return to study or work, he mentioned that Foad Noori had enjoyed working as a DJ for friends as a hobby and that Foad Noori told him "that he could no longer do this since the accident".
13 Dr Bala’s report was provided earlier, on 31 May 2005. It referred to the inpatient records which revealed that Foad Noori had

"significant deficits in the area of attention, concentration and information processing and new learning abilities associated with short-term memory for auditory and verbal material. He has made some gains and improvements for attention to visual detail, visuo-construction and visual reasoning."

Dr Bala expressed the opinion that Foad Noori still had some "high-level balance problems" and that from a "functional point of view", remained "independent with his self-care and assisted with domestic and community ADL's and money management". He expressed the opinion that with his "significant ongoing cognitive deficits, [Noori] would be unsafe to return to driving". He also expressed the opinion that Noori would have difficulty retraining to appropriate vocational tasks "given his ongoing significant cognitive deficits".
14 In his prognosis assessment, Dr Bala expressed the opinion that Foad Noori had

"made a good physical recovery and to an extent functional recovery to be independent with his self-care".

In respect of cognitive function he said that Foad Noori had made some gains with his visual attention, but still suffered from

"significant problems with attention, information speed and problem-solving, which is not likely to improve given that it is 18 months post injury and he has pretty much plateaued in terms of recovery."

He commented that he may still have some isolated gains in physical and functional aspects and

"perhaps in the cognitive aspect, however, it is not likely to improve its overall performance as a whole as a person to be financially independent".

He repeated his statement that Foad Noori was not safe to drive because of his significant cognitive deficits and again stated that "options of vocational retraining would be difficult due to his cognitive deficits".
15 In his reasons for sentence, his Honour referred to the passage quoted above in para [11] from Dr Bala’s report. He also stated that Foad Noori suffered from depression. He cited and he appeared to accept Professor Davis’ opinion:

"I do not think he would be able to live independently and there is no realistic prospect of any gainful employment in the openwork-place".

His Honour noted that the above predictions by the experts

"may be open to question, but there can be no doubt that he suffered very serious injuries."

His Honour also stated that what he had referred to in his reasons

"is but a summary of the consequences of the negligence which has produced such melancholy circumstances for Mr Foad Noori. At age 22 he confronts a very bleak future with faint hope for some improvement in his condition."

Thus, while his Honour had reservations about the predictions of the experts, he was plainly satisfied that further improvement was most unlikely and that Foad Noori faced a "very bleak future".
16 I note that there was one piece of contrary evidence before his Honour about the functioning of Noori at about the time of the plea hearing. I refer to a report by Mr Jeffrey Cummins, a psychologist which was relied upon by the appellant before his Honour. It provided an assessment of the appellant as at 31 March 2006. In that report there was reference to the appellant telling him that he knew that Foad Noori was not allowed to drive for a while after the accident but that he had now got his licence back and he had seen him driving around. This does not appear to have received attention at the plea hearing on the question of Foad Noori's prognosis.
17 Turning to the new evidence, counsel for the appellant submitted that it discloses that at the time of the plea hearing, Foad Noori in fact led an independent and active life and was impeded only to a limited extent by the injuries he sustained in the collision. Counsel submitted that his physical condition had in fact improved between September 2005 and March 2006 and he was then, and is, able to drive a car and conduct his own business, working as a self-employed DJ. Counsel also submitted that he had an active social life and has good cognitive and social skills. Counsel submitted that this material was inconsistent with the expert evidence as to his physical state when examined and with their predictions. It was also inconsistent with the conclusions reached by his Honour on the basis of that evidence.
18 As to the new evidence, four of the six deponents are people who have known Foad Noori for a number of years. They deposed to him working as a DJ on a number of occasions in and between September 2005 and the present, driving his motorcar on a number of occasions in the last eight to nine months, and engaging in normal social activity during the above periods. One witness also deposed that on one occasion, in May this year, Foad Noori helped a friend to move. The witness deposed that, while doing so, Foad Noori pushed a heavy couch approximately four metres from one end of a truck to the other.
19 The evidence is in essence that Foad Noori has continued to improve since September of last year. I note in particular that one of the witnesses deposed to observing him on 25 March 2006 dancing at a party and moving more freely than he had been when that deponent had seen him working as a DJ in September 2005. This new evidence tends to suggest that there has fortunately been continued improvement in all areas of functioning for Foad Noori, contrary to the evidentiary material before his Honour and upon which his Honour reached his conclusions.
20 The appellant also relied upon an affidavit by Hossein Saif Sadeh, a university lecturer in business information technology and a family friend of the appellant and his parents. He deposed to visiting the website of Foad Noori’s business and exhibited images from that web site. Counsel drew attention, for example, to one image which recorded Foad Noori’s involvement as a DJ at a function on 30 April 2004. He referred to others publicising his involvement as a DJ in functions on 9 September 2005 and 21 January 2006. Counsel submitted that this contradicted the facts upon which the experts had relied such as the inability of Foad Noori to work as a DJ and he having no realistic prospects of gainful employment.
21 The Crown did not seek to cross-examine the deponents and did not seek to adduce further evidence, including expert testimony.
22 In my opinion, the new evidence established either that the appellant was sentenced on an incorrect factual basis as to the consequences of Foad Noori’s injuries as at the time of sentencing or it threw further light on the nature and consequences thereafter. The evidence was admissible on either of these bases ^[2]. His Honour’s findings on those issues were critical to his assessment of the seriousness of the injuries suffered and, therefore, his conclusion as to the gravity of the offence in count one.
23 For these reasons, I came to the conclusion that the appeal should be allowed. That decision having been taken by the Court, it became necessary to re-sentence the appellant. My reasons for agreeing with the orders made in re-sentencing the appellant are set out below.
Re-sentence – Count 1
24 In re-sentencing the appellant, it was necessary, in my view, to consider the gravity of the count 1 offence. There are two major relevant issues – the degree of negligence and the seriousness of the injury.
25 The charge arose out of a collision on 9 December 2003 between a car driven by the appellant and a car driven by Foad Noori. Foad Noori and Nerissa Butt were badly injured as a result of that collision. His Honour described in his reasons for sentence how the appellant was attempting to catch up with a car driven by Foad Noori as they travelled in an easterly direction in Ferntree Gully Road, Wheelers Hill. The cars were travelling in an 80 kilometre per hour zone. While travelling at high speed, the appellant attempted an abrupt overtaking movement of another vehicle and lost control of his vehicle and, while under heavy braking, skidded into the rear of the vehicle driven by Noori in which Butt was a passenger. Foad Noori's vehicle left the road and collided at high speed with a tree. At the time the appellant commenced emergency braking it appears that his vehicle was travelling at approximately 125 kilometres per hour. His Honour also noted that one of the tyres on the appellant’s vehicle was in an unserviceable condition and that he was aware of that fact.
26 In light of these facts, his Honour commented:

"To drive shortly prior to this accident at a speed of 125 kilometres per hour in an 80 kilometre per hour speed zone and to attempt to make an abrupt overtaking manoeuvre travelling at approximately that speed does indicate a gross negligence. It was perfectly predictable that difficulty would be experienced controlling a vehicle being driven in this manner, particularly when one of its tyres to [his] knowledge was in an unserviceable condition, and it is also perfectly predictable that death or serious injury are likely consequences to persons involved in high-speed collisions."

These conclusions were not challenged by the appellant, nor can they be.
27 There is also no issue that Foad Noori initially suffered serious injuries in the collision. As to the initial injuries, his Honour found that Noori suffered a closed head injury which caused a subarachnoid haemorrhage and blood entered the right lateral ventricle of his brain. He also found that there was bleeding into the brain nerve cells and into the brain stem. His Honour described the damage done as "a severe diffuse brain injury". His immediate post-accident treatment involved tracheotomy and a ventricular drain. He was in intensive care for five days with ventilatory support. He also developed infections while being treated and was not discharged from the Alfred hospital until 27 days had elapsed. His Honour also noted that Noori suffered a fractured collarbone which required operative intervention and suffered spasticity in his right upper and lower limbs and as a result had difficulty with balance and with walking. There was also a marked weakness in his right arm which impeded him in all activities in which that limb was involved.
28 As to Foad Noori’s subsequent progress, as noted above, there was evidence detailing Foad Noori's progress up to approximately August 2005. It comprised primarily the reports of Professor Davis, and Dr Bala. Both reports were provided to the Transport Accident Commission. Professor Davis’ report noted that "much of the information was obtained from his mother, by the Interpreter." Professor Davis also had a copy of Dr Bala’s report. Dr Bala based his report in part on the medical notes at the Alfred Hospital and the Rehabilitation Centre. Dr Bala also took over the care of Foad Noori from 11 November 2004 to oversee his outpatient program. In his report he noted that Noori had been discharged as an outpatient and had had been linked with various community services for assessment and assistance.
29 His Honour noted in his reasons for sentence that Professor Davis expressed the opinion that Noori's mobility had been markedly affected by his right sided spasticity. He also expressed the opinion that he suffered significant impairments in relation to his right arm and leg and superimposed on these physical injuries had been a psychological response to the organic brain injuries. In relation to Dr Bala’s report, his Honour referred to his comment that there had been some improvement in his condition resulting from his stay at the Glen Waverly Rehabilitation Centre where he had remained until April 2004. His Honour noted Dr Bala's comment that

"Mr Noori is left with deficits in the area of attention, concentration, information processing and new learning abilities"

His Honour noted that Noori's mother confirmed her observations of his multiple problems in the history she provided to Professor Davis and his Honour noted her victim impact statement.
30 These conclusions about Foad Noori’s progress and state of health at the time of the two reports have not been challenged.
31 The injuries suffered by Foad Noori were very serious and significantly more serious than those suffered by Nerrisa Butt. I note his Honour's conclusions about her injuries. His Honour briefly stated that she had suffered head and spinal injuries but had made a satisfactory recovery from the physical injuries. She had in fact given evidence on the plea hearing. His Honour accepted the material in her victim impact statement that she had endured a level of depression for approximately a year and a half following the accident. From her victim impact statement, it appears that she spent a week in hospital following the incident. She refers in it to bruising and injury to her spine.
32 Foad Noori’s injuries were life threatening. He suffered serious injuries to his brain and immediate significant impairment to its functioning. For a considerable time it appeared that he could be left with significant cognitive and physical deficits. Fortunately, it now appears, on the evidence before the Court, that he is left with what is described as a limp but otherwise appears to be functioning well mentally and physically. There is no evidence now of psychological problems although it would be surprising if there were not some. I note, however, that there is no victim impact statement from him and no up-to-date medical report available to the court about his physical, mental and psychological condition.
Re-sentence - conclusion
33 The new evidence is principally relevant to the issue of the gravity of the count 1 offence and, therefore, the level of punishment that should be reflected in any sentence imposed. I came to the conclusion that the fortunate recovery of Noori materially reduces the seriousness of the injuries caused and therefore, the gravity of the offence. In my opinion, however, the actions of the appellant constituted a serious breach of s 24 Crimes Act 1958.
34 As to the other sentencing considerations, they were dealt with and discussed by his Honour, including the maximum penalties available and the significant mitigating factors which he identified. They included the plea of guilty, the appellant’s good character, the importance of rehabilitation as a sentencing purpose and his excellent rehabilitation prospects. I also have had regard to the evidence of his genuine remorse.
35 Having regard to the foregoing, I came to the conclusion that a sentence of 20 months imprisonment was appropriate for count 1. I also concluded that a cumulation of 4 months imprisonment in respect of count 2 was appropriate resulting in a total effective sentence of 2 years imprisonment. That required the reassessment of the minimum term of imprisonment imposed. I came to the conclusion that it should be reduced from 12 months to eight months. I also concluded, as did his Honour, that a lengthy period of parole is appropriate.

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^[1] R v Knights (1993) 70 A Crim R 105.
^[2] R v Duy Duc Nguyen (2006) VSCA 184 at [36]