The Queen v Ekstrom[1997] QCA 471

AMBROSE J:  This is an application for leave to appeal against a sentence imposed in July of this year upon a 30-year-old woman who pleaded guilty to a charge of dangerous driving causing grievous bodily harm while effected by alcohol with a blood alcohol content in excess of .15 per cent.

On the evening in question she had attended a family dinner which was obviously a sad one because her father had a terminal condition and it was the last family dinner, apparently, before he became incapable of engaging in that sort of activity.

She had some drinking problems over the years or she drank starting off at an early age as a university student.  She had been convicted of a couple of offences of driving with a blood alcohol content above the prescribed limit.  That was some years before this occasion.

She apparently had so much to drink on the occasion of the offence that she had no recollection of commencing to drive her mother's vehicle home.  Her recollection, she said, was of waking up in hospital with serious facial injuries. Evidence from people at the scene of the accident indicated that she had driven into the rear of a taxi cab on a main Brisbane street, had then driven away without stopping and shortly afterwards drove on to the incorrect side of the roadway and had a head-on collision with another vehicle being driven on that roadway.  She caused very serious injury to the driver of the other vehicle who had both femurs fractured and as a consequence could have died.

The position is that the causing of grievous bodily harm and driving with a blood alcohol content in excess of .15 involved the most serious circumstances of aggravation for that offence attracting a maximum penalty of 14 years' imprisonment.

At the hearing of the sentence it emerged that after the second collision in which grievous bodily harm was occasioned to the driver of the other car she was asking that the police not be called which indicates, perhaps, that whatever her intoxication was she was aware that what she had done was culpable.

In the course of the submissions made on behalf of the Crown and on behalf of the applicant a schedule of sentences was handed up including sentences imposed upon an Attorney-General's appeal in King on 20 March 1996 where a three year sentence had been imposed with a recommendation for parole after 12 months.  One of Quinlan where a three year sentence had been imposed with a recommendation after six months and one of Harvey which was also an Attorney-General's appeal where a three years' sentence had been imposed with a recommendation after six months.  The Attorney-General appealed against that but the appeal was dismissed.

Counsel before the sentencing Judge agreed that the range of sentence that was useful to talk of such things, on the facts of this case, was between three years and five years.  The counsel for the applicant suggested that a three year range with an early recommendation was appropriate.  Counsel for the Crown suggested that a four year sentence was appropriate.

So, His Honour had clearly argued before him the question of level of sentence and the cases where an early recommendation had been made and an early recommendation was sought by the applicant's counsel on sentence.

His Honour in imposing sentence referred to the high blood alcohol concentration that she had at the time she reached hospital, which was .215 per cent.  He pointed out the maximum punishment provided under the Code was 14 years' imprisonment.  He dealt with the circumstances leading up to the collision and also the fact that she had had facial injuries, that is, that the applicant had facial injuries although the other person involved in the collision had much more serious injuries.

He referred to the good upbringing that the applicant had had.  She was 30 years of age.  She had a couple of university degrees in arts and commerce.  She had a good job. She was well thought of.  References had been tendered that His Honour referred to. 

He referred to the fact that she seemed to have, perhaps, frailty or weakness which sometimes led her to take more alcohol than she should.  She was subject to stress sometimes.  She had had no criminal history apart from a couple of earlier convictions for driving under the influence when she was a university student.

She was not, in fact, licensed at the time of the incident for which she was sentenced.  She had lost her licence.  She had been disqualified after earlier convictions for driving under the influence.  And although she had obtained a learner's permit she had never bothered to attempt to get a licence.

It emerged before the sentencing Judge that she had in fact been driving from time to time her mother's motor vehicle without a licence, as she was doing at the time of this offence.

His Honour found that she was remorseful and he took account that she had pleaded guilty in the circumstances.  He took into account the fact that she had given some financial assistance to the lady whose car had been destroyed in the collision.

Dealing with the question of punishment he expressed the view that the question of deterrence in these sorts of cases is important.  He pointed out that while people are entitled to drink to excess if they feel like it, they are not entitled to immediately then go into a motor car and drive it while under the influence of liquor and putting the public at risk.

He pointed out that there were many cases, and he had been given a lot of them to look at, sentences; there were many cases where more serious offences had been committed than this particular one.  However, he said that this particular offence was, in his view, serious.  It was a bad case of dangerous driving in the circumstances.

He referred to the range of sentence that both counsel before him had agreed to.  And indeed the applicant's counsel had suggested a three year term with a recommendation for early parole. 

His Honour said that he had considered at length all the submissions and read all the cases that he had been given and at the end he concluded that the proper sentence was one for three and a half years.  He said that that sentence included all the features of the case that had been canvassed both for and against the applicant.

He specifically said that he made no recommendation about parole and ordered that a conviction be recorded.  He also recommended to the Corrective Services that the applicant receive such psychological, psychiatric and medical treatment as she might require.

It is the case essentially for the applicant that the sentence was manifestly excessive by virtue of the sentencing Judge's failure to make a recommendation for early parole, perhaps after nine months or 12 months of the sentence had been served.  The effect of his order making no recommendation will be that she must serve 21 months imprisonment before she becomes eligible for parole.

Essentially, as I understood the submissions, the sentence became manifestly excessive because she could not be given parole for 21 months.  A proper sentence would have been one in which she could have been released on parole after nine months or 12 months.  And the application has been argued really on that basis.

In my view, it is not the function of this Court to re-sentence; to impose the sort of sentence that perhaps one or more members of this Court would impose if they were imposing it.  It is the function of this Court to determine whether the order made by the sentencing Judge is manifestly excessive to the extent that it requires this Court to interfere with it and make the order which is persuaded is necessary to prevent it from being manifestly excessive.

In my judgment it could not be said that the failure to make an early recommendation results in the sentence imposed being manifestly excessive.  I would dismiss the application.

DAVIES JA:  I agree.

MOYNIHAN J:  So do I.

DAVIES JA:  The application is refused.