R v Ekstrom - [1997] QCA 471

[1997] QCA 471

COURT OF APPEAL
DAVIES JA
MOYNIHAN J

AMBROSE J

CA No 229 of 1997
THE QUEEN
v.

ROBYN LYNN EKSTROM	Applicant
BRISBANE ..DATE 23/09/97

JUDGMENT
230997 T6/JAP/20 M/T COA 213/97
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.

230997 T6/JAP/20 M/T COA 213/97
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.

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 Ekstrom

Details

AGLC: R v Ekstrom [1997] QCA 471
Case: [1997] QCA 471
Decision Date: 23/09/1997

CaseChat Overview and Summary

Robyn Lynn Ekstrom applied for leave to appeal against the sentence imposed by a sentencing judge for dangerous driving causing grievous bodily harm while affected by alcohol, with a blood alcohol content exceeding.15 per cent. The case arose from an incident where Ekstrom, after attending a family dinner, drove her mother's vehicle while heavily intoxicated, resulting in two collisions that caused serious injuries to the driver of another vehicle. The sentencing judge considered various factors, including Ekstrom's blood alcohol content, her previous convictions for driving under the influence, her lack of a valid driver's licence, and her remorse. The court acknowledged her good upbringing, education, and employment but emphasized the importance of deterrence in such cases.

The legal issue before the court was whether the sentence imposed by the sentencing judge was manifestly excessive. Ekstrom's counsel argued that the sentence of three and a half years, without a recommendation for early parole, was excessive as it would result in her serving 21 months before becoming eligible for parole. The Crown argued that the sentence was appropriate and within the agreed range of three to five years. The court considered whether the failure to make an early parole recommendation rendered the sentence manifestly excessive.

The court concluded that it was not its role to re-sentence but rather to determine if the sentence was manifestly excessive. The judges found that the failure to make an early parole recommendation did not render the sentence manifestly excessive, as the sentence itself, including the period before parole eligibility, was within the range agreed upon by both parties. Therefore, the application for leave to appeal was dismissed, and the original sentence was upheld. The judges agreed that the sentence was not manifestly excessive and refused the application.

Orders