Post-sentence medical diagnoses of conditions that were undiagnosed but extant at the time of sentencing may satisfy the threshold requirements for fresh evidence under R v Nguyen [2006] VSCA 184, but the ultimate question remains whether a different sentence should be substituted to avoid a miscarriage of justice. Where the original sentence is already lenient, the fresh evidence is unlikely to warrant a reduction. The Court was prepared to infer the existence of underlying conditions at the time of sentence from subsequent diagnoses.
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