R v Russell - [2002] QCA 285

[2002] QCA 285

COURT OF APPEAL

McMURDO P
JERRARD JA
MACKENZIE J

CA No 91 of 2002

THE QUEEN

HELEN KOONGAN RUSSELL Applicant

BRISBANE

..DATE 06/08/2002

JUDGMENT

THE PRESIDENT: The applicant pleaded guilty on 4 March 2002 in Townsville to one count of dangerous operation of a vehicle causing grievous bodily harm with the circumstance of aggravation that she was adversely affected by an intoxicating substance. She was sentenced to four years' imprisonment with a recommendation for eligibility for parole after serving 18 months and disqualified absolutely from holding or obtaining a driver's licence. She contends that the sentence was manifestly excessive.

The applicant was driving a Nissan station wagon at about 6.40 p.m. on Friday, 17 September 1999 on Marine Parade, Arcadia on Magnetic Island. Marine Parade is the main arterial road on the island. The accident occurred on a two-lane bitumen section of the road where the speed limit was 60 kilometres per hour and underneath overhead street lighting. The weather was fine. The applicant drove onto the incorrect side of the road and collided head-on with the complainant's vehicle causing it to plunge over a bridge into a dry creek bed.

The complainant, a medical doctor, received very serious injuries including a broken right femur, a broken left patella, a hemopneumothorax and several soft tissue injuries and multiple lacerations and a whiplash injury. She was the primary income earner whilst her husband cared for their two young children then aged 15 and 14 months the younger of which she was still breast feeding. She was hospitalised for five nights and has had a difficult and lengthy recovery. She and her family have suffered great economic hardship as a result because she had just commenced a new position and was uninsured. She has been unable to return permanently to full-time work. Prior to the accident she was very fit, playing with her young children and sometimes running half marathons but that is now not possible. As a result of the pressures resulting from the accident she and her husband separated for a period. She understandably describes the accident as having had a dramatic and painful effect upon her life and is causing severe financial hardship and a negative effect upon her family life.

The applicant has a previous conviction in 1984 for driving a motor vehicle with a blood alcohol content of .14 per cent and failing to remain at the scene of the accident for which she was convicted and fined. In 1985 and 1986 she was convicted of offences of possession of a prohibited plant for which she was respectively convicted and fined and placed on 12 months' probation. In 1993 she was convicted of permitting her place to be used for the commission of a crime and again convicted and fined.

At the scene of the accident the applicant was slurring her speech and smelled of alcohol. Analysis of her blood at 8.10 p.m. showed a blood alcohol content of .139 per cent and…

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 Russell

Details

AGLC: R v Russell [2002] QCA 285
Case: [2002] QCA 285
Decision Date: 06/08/2002

CaseChat Overview and Summary

In the case of R v Russell, the applicant, Helen Koongan Russell, appealed against her sentence of four years' imprisonment with a recommendation for eligibility for parole after serving 18 months, imposed by the Townsville District Court. The applicant had pleaded guilty to dangerous operation of a vehicle causing grievous bodily harm, aggravated by being adversely affected by an intoxicating substance. The primary judge had also disqualified her from holding or obtaining a driver's licence. The applicant contended that the sentence was manifestly excessive.

The legal issues in this appeal revolved around the appropriate penalty for the offence committed by the applicant and whether the sentence imposed was manifestly excessive. The Court of Appeal had to consider whether the sentence was within the appropriate range and if the applicant's health condition, discovered after the sentence was imposed, warranted a modification of the parole recommendation.

The Court of Appeal found that the sentence of four years' imprisonment was not manifestly excessive, considering the similar case of R v. Hine. However, the Court took into account the new evidence presented by the applicant, which showed that she was suffering from breast cancer with a significant chance of mortality within five years. The Court concluded that the special and unusual circumstances of the case warranted allowing the Community Corrections Board to determine if the applicant's medical condition warranted compassionate release on parole. The Court granted the application for leave to appeal and allowed the appeal to the limited extent of deleting the recommendation for release on parole after 18 months and instead recommending eligibility for release on parole forthwith.

The final orders were that the sentence of four years' imprisonment was confirmed, but the recommendation for release on parole after 18 months was deleted, and eligibility for release on parole forthwith was recommended. The matter was to be referred to the Community Corrections Board for their consideration of the applicant's medical condition and eligibility for parole.

Orders