R v Russell [2002] QCA 285

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 the presence of tetrahydrocannabinol. A Government Medical Officer calculated that on a count back to the time of the accident her blood alcohol level would have been very close to .159 per cent and that the smoking of cannabis would have amplified impairments caused by alcohol. I note, however, that the more serious circumstance of aggravation that her blood alcohol level was in excess of .15 has not been charged.

The applicant spent most of the afternoon at the Picnic Bay Hotel drinking beer. A person with whom she was drinking noticed she was upset and affected by alcohol, anticipated that she may drive and offered to pay for a taxi but, regrettably, she declined that offer. At about 5.30 p.m. she gave a lift to a hitchhiker. He was in her vehicle when she reversed it into a tree smashing the rear window and noticed her car wandering within its lane on the roadway. The applicant then began to cut corners and drift onto the incorrect side of the road. He asked her to slow down and later told her not to drive any more because she would end up killing somebody. Other road users noticed her erratic driving shortly before the accident. This included four unsuccessful attempts to start the vehicle whilst it was in gear, crossing double white lines and weaving over the road.

The applicant was 56 at the time of the offence and 58 at sentence. She is the mother of two adult sons who have become respected members of the community. She too suffered injuries in a motor vehicle accident in 1970 which caused her to use a walking stick from 1990 to 1998 when she had a full hip replacement. From that time she was unable to work and received a disability pension. She has not driven since the accident and does not intend to drive in the future. A reference was tendered on her behalf from the Townsville Art Society in which she is an active member.

Her previous history and this offence suggest she has a serious alcohol problem. She was assessed by Dr Bill James, a consultant psychiatrist who noted that she appears to suffer from evidence of organic brain deterioration and paranoid ideation both of which are likely to have resulted from long-term heavy alcohol abuse. In terms of future management it's vitally important that Ms Russell abstain from alcohol. She needs further more refined investigations of cerebral structure and function. She needs careful medical monitoring to observe the progress of her paranoid ideation with the possibility of anti-psychotic medication being used should this not remit spontaneously in the absence of alcohol. Dr James noted that in the event of imprisonment it was important to ensure that appropriate medical oversight was available.

The maximum penalty for this offence, under section 328A(4)(a) Criminal Code, is imprisonment for 10 years. The applicant contends that a sentence of three years' imprisonment with a recommendation for release on parole after 12 months was the appropriate penalty when compared with comparable sentences particularly relying on R v. Hine [2002] QCA 212 CA No 31 of 2002, 21 June 2002. Hine pleaded guilty to a like charge and was sentenced to four years' imprisonment with a recommendation for parole after 18 months with a disqualification from obtaining or holding a driver's licence for three years. He drove through a red light at a major intersection and shortly afterwards at another major intersection, Logan Road and Abbotsleigh Street, Holland Park, went through a second red light, colliding with a vehicle in the intersection. The force of the impact was significant and forced the complainant's vehicle 70 metres from the point of collision when it hit a telephone pole and was almost totally destroyed. A roadside breath test indicated that Hine was over the blood alcohol limit and a subsequent analysis showed a reading of .139 per cent.

The complainant in Hine sustained more serious injuries than in this case; namely, a closed head injury of moderate severity to the left temporal lobe and acute post traumatic stress amnesia as well as lacerations, bruising, whiplash and a back injury. She was unconscious for four days and only emerged from post traumatic amnesia after 37 days. She was hospitalised for about 10 weeks in a brain rehabilitation unit and had been unable to undertake paid employment since the accident. Although she was making a good recovery she had significant neurological impairment to the memory, personality change and probably high level but mild speech dysfunction and an impairment of cognitive function and balance. She would probably be unable to return to her previous employment in office computer work and would be limited to simple employment such as a part-time cleaner or child minder.

Hine was much younger than this applicant, 26 at the time of the offence. Unlike this applicant he had no previous criminal history and although he had some traffic history he had no prior no conviction for drink driving. Although the injuries suffered by the complainant in Hine were more serious than those suffered here there are other features of this case which make it as serious. The applicant here was more mature, she had a previous conviction for drink driving (although this preceded the offence by 15 years). In addition, there was a well-documented course of her conduct prior to the accident which showed that she was determined to continue driving even though she had been drinking heavily and was clearly incapable of doing so safely. She had been asked by two people on two different occasions not to drive and had already had another minor accident shortly before committing this offence.

The majority in Hine concluded that a sentence of four years' imprisonment with a recommendation for parole after 18 months was not manifestly excessive. Although the sentence proposed by the applicant here, three years' imprisonment with a recommendation for parole after 12 months, is within the appropriate range, I'm not persuaded that the sentence imposed by the learned primary Judge was manifestly excessive.

Were that the only matter for this Court's consideration I would refuse the application for leave to appeal against sentence. But this Court has, without objection, received new evidence which has emerged since the sentence as to the applicant's current state of health. The Court has determined to receive that evidence, see R v. Maniadis [1997] 1 QdR 593 and R v. Leith [2000] 1 QdR 660.

That evidence is a medical report from Dr Nicholas Wickham, Chairman of the North Queensland Oncology Service, who notes that the applicant, who is now 59 years old, is suffering from breast cancer, she has a large mass in the left breast involving both upper and lower outer quadrants with inflammation of the overlying skin. Dr Wickham notes inflammatory breast cancer is the most aggressive form of the disease accounting for less than 5 per cent of all breast cancers. The overall actuarial disease-free survival is quoted as 27 per cent. Some authorities suggest that in those with initially responsive disease this figure is closer to 50 per cent whilst in those with a partially responsive disease it is closer to 15 per cent or less. As stated previously her treatment will extend for at least six months with chemotherapy for up to six cycles at three or four weekly intervals with a possibility of five weeks of radiotherapy. Chemotherapy will involve hair loss, some nausea and an increased risk of infection and requires close supervision through the clinic at the Townsville Hospital.

Mr Devereaux, who appears for the applicant, informs us that he has spoken to Dr Wickham and that in effect the applicant has a 75 per cent chance of dying of the disease within five years. There is, therefore, a real possibility that if she is not released on parole she may die in prison. The special and unusual circumstances here demonstrate that the interests of justice may well require the applicant's immediate release on parole for medical and compassionate reasons. Whether this is appropriate will of course be a matter for the Parole Board with the benefit of detailed medical reports.

I note the applicant has already served over five months in custody. Because of the most unusual circumstances of this case raised by the new evidence I would grant the application for leave and allow 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. I would otherwise confirm the sentence imposed at first instance.

JERRARD JA: I agree with the comments of the President. In my opinion the judgment of this Court in the matter of Hine makes it very difficult for the present applicant to argue that the sentence she received was manifestly excessive. I also agree that it is appropriate in the circumstances which have emerged since that sentence was imposed to do as the President has determined and to allow the Community Corrections Board to determine if the applicant's medical condition warrants compassionate release on parole.

MACKENZIE J: I agree with the President that, when the broad comparability aspects referred to in Hine are taken into account, the sentence of four years' imprisonment cannot be held to be manifestly excessive.

With regard to the variation made with regard to the eligibility for release on parole I would simply say that the order concerning eligibility for release on parole is made solely because of a serious illness which has been discovered since the applicant was originally sentenced and to allow for release if the treatment she must receive will be seriously compromised if she has to remain in prison. The question whether the applicant's circumstances actually justify her release on parole will no doubt be determined by the Community Correctional Authorities by reference to the usual criteria and also by examining in detail such medical evidence as they deem necessary with a view to determining whether there will be undue detriment to the applicant if she has to remain in prison as opposed to having her treatment out of prison.

The case is not in my view as strong as Leith where there was a distinct likelihood that the person would die in custody but in Leith the outcome was that the sentence was suspended rather than being made the subject of a parole recommendation.

I agree with the orders proposed.

THE PRESIDENT: The orders are as I have outlined.