R v Tricklebank

[1993] QCA 268

IN THE COURT OF APPEAL [1993] QCA 268

SUPREME COURT OF QUEENSLAND

C.A. No. 113 of 1993

Brisbane
[R. v. Tricklebank]

BETWEEN

T H E Q U E E N
v.
BRYAN GORDON TRICKLEBANK

(Applicant)

C.A. No. 143 of 1993

BETWEEN

T H E Q U E E N
v.
BRYAN GORDON TRICKLEBANK

(Respondent)

ATTORNEY-GENERAL OF QUEENSLAND

(Appellant)

The Chief Justice
Mr Justice McPherson

Mr Justice Demack

Judgment delivered 29th July, 1993
Separate reasons for judgment by the Chief Justice, McPherson JA and Demack J, all agreeing as to the orders made.
ATTORNEY-GENERAL'S APPEAL AGAINST SENTENCE DISMISSED. APPLICANT'S APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DISMISSED.
CATCHWORDS CRIMINAL LAW - Sentencing - Dangerous driving causing death with circumstances of aggravation - accused already charged with 'drink driving' - whether twice punished for same offence - Sections 16, 328A Criminal Code (Qld)

Counsel:	Mr P. Nase for the applicant Mr P. Rutledge for the Crown
Solicitors:	Legal Aid Office for the applicant Director of Prosecutions for the Crown

Hearing Date: 23rd June, 1993

I	N THE COURT OF APPEAL
Q	UEENSLAND
B	risbane

Before The Chief Justice

Mr Justice McPhers	on
Mr Justice Demack

[ R. v. Tricklebank]

C.A. No. 113 of 1993

T H E Q U E E N

v.

BRYAN GORDON TRICKLEBANK

(Applicant)

C.A. No. 143 of 1993

T H E Q U E E N

v.

BRYAN GORDON TRICKLEBANK

(Respondent)

ATTORNEY-GENERAL OF QUEENSLAND

(Appellant)

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 29.07.1993
I have had the advantage of reading the reasons for
judgment prepared by McPherson J.A. and the facts and
circumstances for consideration are there sufficiently set out.
On the operation of s. 16 of the Criminal Code and its
application in this case, I would, with respect, adopt a
different approach from that taken by him. I consider that,
apart from the effect of the exception stated in that section,
the sentencing judge was not entitled on sentencing the
appellant to take into consideration the fact that he was
adversely affected by an intoxicating substance, namely alcohol,
at the time the dangerous driving occurred. This is because the
appellant had already been convicted and sentenced for driving a

motor vehicle while having a blood alcohol concentration of .1

per cent.
One somewhat unsatisfactory aspect of this case is that the precise allegation which resulted in the prior summary conviction was not established either for this Court or for the learned sentencing judge. However, it was accepted below, and again before us, that the act of driving with the blood alcohol percentage previously charged related to the driving by the appellant at the spot where the fatal accident was caused, i.e. where the dangerous driving as subsequently charged also took place. Therefore, it is appropriate to consider the points raised on appeal on that basis.

There is no doubt that the application of s. 16 of the Code presents difficulties. A two judge court of the Court of Criminal Appeal (the third judge, Hart J., having died before judgment was delivered) in R. v. Gordon; Ex parte Attorney- General (1975) Qd.R. 301 undertook an analysis of the section. At the time that case was decided, s. 328A of the Code did not specify as a possible circumstance of aggravation the case where at the time of committing the offence, the offender is adversely affected by an intoxicating substance. The result was that the court there had to give attention to a rather different problem.

It was concerned with the effect which should be attributed to the fact that the offender had been convicted and sentenced for being in charge of a motor vehicle while under the influence of liquor or a drug before he was called on to face a charge on indictment that he, on the same occasion, drove dangerously and caused grievous bodily harm. Stating the matter very broadly, it can be said that although the two charges in Gordon related to the same occasion there was less coincidence between the elements of the two offences than there is in the present case, that is if the circumstance of aggravation is taken into account. In Gordon the court decided that nothing prevented the judge hearing the offence charged on indictment from proceeding with the matter and imposing a penalty appropriate to the circumstances of the offence of dangerous driving.

In Gordon an extensive analysis of a number of previous authorities was undertaken, including cases which gave attention to the effect of the common law and certain statutory provisions as well as the Queensland Code. With the greatest respect and no doubt because of the considerable difficulty inherent in the matter, the analysis and conclusion there arrived at do not seem to make the application of s. 16 any easier for present purposes.

In some decisions the principles involved in autrefois acquit and autrefois convict (dealt with in the Code by s. 17) and against double punishment and double jeopardy are not fully differentiated. Perhaps in other jurisdictions these principles may not in all cases have called for separate treatment but, under the Code, s. 16 separately provides a prohibition against a second punishment "for the same act or omission" except in the case where death is caused by the act or omission. Section 17 is thus seen to deal with different situations, not simply the prohibition or restriction caused by prior punishment. Since s. 16 deals separately with this subject-matter it must be given its appropriate effect. The principles applied in cases in jurisdictions where the Code does not have operation cannot be fully transposed to Queensland. It is hard to find a uniform thread among those cases and, although a rule preventing subsequent conviction or punishment is recognised as being broader than the rules of autrefois acquit and autrefois convict, the cases often do not draw exact distinctions between, on the one hand, identity and substantial similarity in what is charged and, on the other, as between the offences, acts, facts and evidence which may have been the basis of previous proceedings. Cases illustrating this variety of approach are collected in Archbold 44th ed. Vol. 1 at pp. 475 and ff. The modern English decision of Connelly v. Director of Public Prosecutions (1964) A.C. 1254 shows that the debate about the scope of the rules relevant in this context and about their true basis still continues.

Turning back to this jurisdiction, Williams J. in Gordon's case (supra) at 321 drew attention to the fact that Griffith C.J. in Connolly v. Meagher; Ex parte Connolly (1906) 3 C.L.R. 682 at 683 in the course of argument said:

"The Code lays down a new test - sec. 16 - 'a person cannot be twice punished, either under this Code or any other law for the same act or omission'. The law of autrefois convict is laid down in another part of the Code - secs. 17 and 598"

and in delivering what were the reasons of the court at 684
said:

"The point sought to be raised is, no doubt, in one sense an important one. It is provided by sec. 16 of the Criminal Code that no person shall be twice punished for the same act or omission. That is not quite the same as the law which allows the defence of 'autrefois convict', which is dealt with in secs. 17 and 598 of the Code. The rule in sec. 16 may or may not be identical with the common law, but it is the law of Queensland."

In R. v. Hull No. 2 (1902) St.R.Qd. 53, Griffith C.J. at 57-58 emphasised the importance of the words in s. 16, "the same act or omission", saying that:

"... when it is alleged that acts referred to in two indictments are the same, there is implied a unity, at least, of time and place."

The Chief Justice may there have been reserving the possibility that in some respects the acts may not be identical but it is hard to be sure exactly what he had in mind and in what non- essential aspects a variation might be found. He is, however, clearly asserting that the acts referred to must be the same acts done at that time and at that place. The Chief Justice, in his reasons, also drew attention to the necessity to distinguish "between the acts which were the elements of the offence and the particular evidence which was adduced to prove the acts".

Assisted by these observations, it is helpful to turn back again to the words of s. 16 and consider their application to instances under the Code where circumstances of aggravation provide for specifically increased maximum penalties. On one view, the aggravating circumstances might be thought not to be elements of the offence because the offence, or at least an offence, is committed without them. But this approach would diminish the significance of the aggravating circumstances under the charge which is brought. If the circumstances are to be relied upon in the imposition of the penalty they must be charged: The Queen v. De Simoni (1981) 147 C.L.R. 383 per Gibbs C.J. at 389. That is because of the "fundamental and important principle that no one should be punished for an offence of which he has not been convicted". The sentencing judge "cannot take into account instances of aggravation which would have warranted a conviction for a more serious offence".

In the present case the circumstance of being "adversely affected by an intoxicating substance namely alcohol" was charged in the indictment and the sentencing judge made it plain that he took it into account in imposing the sentence that he did. He said to the appellant, "The presence of liquor plays a large part in my decision to imprison you". He added, undoubtedly quite properly, that he took into consideration that the stipendiary magistrate had fined the appellant $400.00 and suspended his licence for four months.

In proceeding to impose a more severe sentence, as he appears to have done, because of the effect of alcohol upon the appellant, I consider that the sentencing judge adopted an incorrect approach. In a sense, this case shows the other side of the coin considered in the De Simoni case: just as a person cannot be punished for the actions constituting an aggravating circumstance which is not charged, so also he cannot be punished a second time for the acts constituting the aggravating circumstance when he has already been punished for those acts.

Section 16 of the Code is specifically directed to punishment for acts or omissions. What are the relevant acts in question here? I consider that they are the driving by the appellant on the road at the place and time while he had ingested the amount of alcohol which was in fact within his system. His ingesting that amount of alcohol had, in this case, two consequences which may be noted - it caused the appellant to be adversely affected by its intoxicating capacity and it also caused his blood alcohol level to be raised and remain above .1 per cent, but these features should be characterised as the results of the appellant's acts rather than as his acts: cf. the analysis undertaken by Gibbs J. in Kaporonovski v. The Queen (1973) 133 C.L.R. 209 distinguishing between an act and a result of an act for the purposes of s. 23 of the Code. Some of the more difficult problems of distinguishing between acts as properly understood for the purposes of s. 16 of the Code and features which are correctly to be regarded as the consequences of those acts may be left for occasions when the necessity arises to consider them. In the present case it was the act of driving with the alcohol in his system and doing so in the location referred to, accepted as being the same in both offences charged, for which the appellant had, in the words of s. 16, already been punished on conviction by the magistrate. Therefore, the appellant could not again be made the subject of punishment for this act unless the exception specified in s. 16 is regarded as applying for the reason that his act caused the death of Jason Watters. Unless that exception operates, the maximum penalty provided in the case of driving while adversely affected by alcohol could not apply to increase the penalty otherwise provided for dangerous driving causing death under s. 328A. It was not argued that he could not be convicted and punished for dangerous driving causing death simpliciter. The result is that apart from the effect of the exception, the judge would have been obliged to disregard the aggravating circumstance, i.e. both the ingestion of alcohol and the effect caused by it when he came to sentence the appellant. If it is thought that, on one view, this results in something less than the application of perfect justice, then it comes about because there is more than one sentencing principle to be borne in mind and s. 16 of the Code gives definite expression to one such principle, viz. the principle that an offender is not to be punished a second time for the same act: cf. the discussion of Hawkins J. in R. v. Miles (1890) 24 Q.B.D. 423. This principle would apply equally if the appellant had first been convicted and punished for this offence with the circumstance of aggravation under s. 328A of the Code and an attempt were then made to punish him further by charging the summary offence to which attention has been directed.

However, I consider that the exception in s. 16 applies. The more usual application of the exception in the case of causing death may well be when the death occurs after rather than before the first conviction is entered and punishment imposed (cf. the cases collected in Archbold 44th ed. Vol. 1 at 475 and ff.), but the words of the section are perfectly general and should be given their full operation. That means that the exception will apply in the present case with the consequence that the sentencing judge was fully entitled to take into account the aggravating circumstance involved in being adversely affected by alcohol and the application of the higher maximum penalty brought about by it. On the present appeal it was only the effect of s. 16 that was argued. Since I think that the statutory principle enshrined in the section would apply but for the statutory exception also contained in the section, it is not on this occasion necessary to consider any area of possible application under the Code of certain other principles which might affect sentencing. For example, relief against abuse of process (given some attention in Connelly v. Director of Public Prosecutions (supra)) or other reasons for relieving against the effects of duplication of proceedings or punishment might, in certain circumstances, have some application but need not here be considered. On the further aspects which will, on the conclusion I have arrived at, remain for consideration on the appeal and the appeal of the Attorney-General, I agree with the conclusions stated by McPherson J.A. and with the orders which he suggests.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 113 of 1993

Brisbane

Before The Chief Justice
Mr Justice McPherson
Mr Justice Demack

[R. v. Tricklebank]

BETWEEN

T H E Q U E E N
v.
BRYAN GORDON TRICKLEBANK

(Applicant)

C.A. No. 143 of 1993

BETWEEN

T H E Q U E E N
v.
BRYAN GORDON TRICKLEBANK

(Respondent)

ATTORNEY-GENERAL OF QUEENSLAND

(Appellant)

REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered 29/07/1993

These are cross-appeals by the Attorney-General and the applicant Bryan Tricklebank against the sentence imposed on the applicant for the offence under s.328A of the Criminal Code of dangerous driving causing death. The sentence was that the applicant be imprisoned for 2 years, with a recommendation for release on parole after 9 months, together with an order disqualifying him for 2 years and 6 months from holding or obtaining a licence to drive a motor vehicle.

It is convenient to deal first with the application for leave to appeal by the applicant. The facts giving rise to the offence are that the accident resulting in the death occurred before 9 p.m. on the evening of 27 July 1990 on the Kingston Road overpass bridge. The applicant was driving a Toyota Camry sedan when it struck a pedestrian Jason Watters, who was killed.

The applicant was travelling at about 80 to 90 k.p.h. along the overpass road, which is a highway divided by a median strip, when he found himself coming up behind another vehicle. It was being driven by a person named Peden, and was travelling at 40 to 50 k.p.h. in the same direction as the applicant and in the left hand lane.
The applicant decided to overtake Peden's vehicle and moved to the right. Evidently he moved too far, collided with the median strip, and lost control of the car he was driving. It veered back in front of Peden's vehicle and struck the left hand wall of the overpass, hitting Watters who, with a companion, was walking along there. Watters was thrown off the overpass on to the ground below the bridge and killed.

Among the factors militating against imposing a particularly severe sentence in this case was that pedestrians were not permitted on the overpass and their presence there was quite unexpected. It would not have been easy to see them in an area like that, where there was no street lighting. It was obviously a dangerous place for them to be. The speed at which the applicant was driving was not specially fast; it exceeded the speed limit of 70 k.p.h. by only some 10 or 20 k.p.h. It is not clear what caused the applicant to collide with the median strip, but it may have been the sudden appearance of the two pedestrians in the road in front of him.

On the other hand, it went strongly against the applicant that he had a number of prior convictions. Some were for offences of dishonesty in the remote past; of more relevance were numerous convictions or fines for speeding and other traffic offences, including two drink-driving offences in 1979 and 1981. After a further traffic offence in 1982, the applicant was disqualified absolutely from holding a driver's licence, but the disqualification was removed on application in 1984.

What was also serious was that the applicant was affected by alcohol at the time of the fatal collision on 27 July 1990. The offence on which he was arraigned was that, on that day, he drove a motor vehicle dangerously and thereby caused the death of Watters, "and that at the time aforesaid you were adversely affected by an intoxicating substance namely alcohol". It was on the second day of trial (which, for various reasons, was the third occasion on which he had been brought to trial on this charge) that the applicant pleaded guilty to the offence charged.

Before us it was submitted on the applicant's behalf that, because of s.16 of the Criminal Code, the learned judge was, in arriving at the sentence imposed, not entitled to take into account the circumstance of aggravation charged; that is, that the applicant was adversely affected by alcohol. The submission may be thought surprising in view of the applicant's plea of guilty to the charge including the circumstance of aggravation.

There was some discussion before us about whether or not it would have been possible to make application under s.596 to quash the indictment against him; but we need not decide that question now.

Section 16 of the Criminal Code provides as follows:
"16. Person not to be twice punished for same offence. A person cannot be twice punished either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case whether the act or omission is such that by means thereof he causes the death of another person, in which case he may be convicted of the offence of which he is guilty by reason of causing such death, notwithstanding that he has already been convicted of some other offence constituted by the act or omission."

What is said to attract the application of that section here is that before the trial of the dangerous driving charge the applicant "pleaded guilty and has been punished for driving a motor vehicle whilst having a blood alcohol concentration of .1 per cent ...". The passage quoted is taken from the submission of counsel for the applicant in the court below. It was accepted by counsel for the Crown, and we are asked to act on it as evidence that the applicant has been punished for another offence arising out of the incident on 27 July 1990. Some more formal method of proof might have been preferable, because we cannot be completely confident of the terms of the other offence. However, the applicant's traffic record shows that, for an offence on 27 July 1990 like that described, the applicant was fined $400 and disqualified from driving for a period of time.

It may well be, as Mr Rutledge for the Crown suggested, that the present case is within the specific exception in s.16 because it is one where the applicant's act caused the death of another person. That would be enough to dispose of the point; but we were also asked to consider the decision of the Court of Criminal Appeal in R. v. Gordon, ex parte Attorney-General [1975] Qd.R. 301. It was there held that, despite s.16, the driver of a motor car could be punished for dangerous driving causing grievous bodily harm to a motor cyclist with whom he had collided, even though he had already been convicted and fined in the magistrates court for the offence of being in charge of his motor vehicle while under the influence of liquor on the occasion of that incident. Hart J. having died before judgment, the other two members of the Court gave separate reasons for judgment.

E.S. Williams J. (323) thought that the proper test was whether the same wrongful act or omission which had previously resulted in punishment "is the central theme, the focal point or ... the basic act or omission in the later offence charged". Hanger C.J. (at 306) considered that s.16 was concerned with punishable acts or omissions. He held (at 307) that, in the case before the Court, the punishable act of being in charge of a motor vehicle while under the influence of liquor was not the same as the punishable act of dangerous driving causing grievous bodily harm with which the offender in that case was subsequently charged.

In the present case, driving the Toyota vehicle was an act that the applicant was doing at the time both offences were committed. However, driving a motor car is not a punishable act, and it was not that act "for" which the applicant was punished on either occasion. As regards the present matter, what the applicant was punished for was dangerous driving; as regards the other offence, what he was punished for may loosely be described as a form of drink driving, which more accurately is an offence created by s.16(2) of the Traffic Act 1949 of driving a motor vehicle whilst the concentration of alcohol in the blood exceeds a specified ratio.

It is not argued by the applicant that these two forms of driving constituted the same act within the meaning of s.16. What is submitted is that the circumstance of aggravation makes the dangerous driving into "the same act" as the drink driving.

But the character of the two acts of driving is different, and they are by no means either co-extensive or even necessarily mutually exclusive. In R. v. McBride [1962] 2 Q.B. 167, the Court of Criminal Appeal in England held that evidence of the fact that liquor had been consumed by someone charged with driving dangerously was not relevant or admissible unless it tended to show that the quantity was such as would adversely affect a driver, or that the particular driver was so affected.
Hence in R. v. Harper [1980] Tas.S.R. 16, Neasey J., held that evidence of a breathalyser test showing an excess of alcohol in the blood beyond the statutory limit was not by itself relevant to a charge of dangerous driving causing death without further evidence explaining the adverse effects of such a blood alcohol concentration.

Those two decisions serve to confirm that the addition of the aggravating circumstance did not transform the act of dangerous driving into the same act of drink-driving as that for which the applicant had been punished in the magistrates court at Beenleigh. The aggravating circumstance was, if proved, relevant as showing that the act of driving was dangerous because the applicant was adversely affected, and not simply that the driver had a specified percentage of alcohol in his bloodstream.

Approached like that, we do not think it possible to say that the sentencing judge acted contrary to s.16 of the Code when in this case he took account of the circumstance of aggravation in arriving at a proper sentence in respect of the offence of dangerous driving causing death. The only other ground urged in support of the application to reduce the sentence was the general one that the sentence of imprisonment was excessive in the circumstances. However, having regard to the applicant's previous driving record and the fact, acknowledged by his plea of guilty, of his being adversely affected by alcohol at the time, it is not possible to regard as excessive a two-year term of imprisonment for the offence of causing death by dangerous driving imposed on a 43 year old man like the applicant, particularly when it is coupled with the recommendation for early parole.

Turning to the Attorney-General's appeal, the written outline of submissions identifies a series of circumstances that are said to have called for a more severe sentence. They are, with one possible exception, all expressed in terms of the greatest generality; for example, that the judge had failed to punish the applicant to an extent that was just in all the circumstances, and so on. There is no reason whatever for suspecting that, in arriving at the sentence imposed, the judge erred in any of the respects suggested.

What is more important for present purposes are the
circumstances in which the applicant came to plead guilty, and
the attitude adopted on that occasion by counsel for the Crown.
After some of the prosecution evidence had been advanced at the
trial, the proceedings were adjourned at the request of counsel.
On resuming on the following day, the applicant was re-
arraigned and pleaded guilty. On appeal we were asked to act on

a statement agreed on by counsel who appeared at the hearing

below, which is as follows:

"During the course of the trial counsel discussed questions relating to the likely sentence if Tricklebank pleaded guilty. After consideration counsel for the Crown said he would adopt a neutral position on sentence: not asking for a custodial sentence but at the same time not supporting the proposed defence submission that a non-custodial sentence should be imposed."

It is, of course, desirable, if it is reasonably possible, for everyone to be spared the expense and ordeal of a trial. The applicant here claims that his decision to plead guilty was influenced by the attitude of counsel for the prosecution in this respect. Of course, nothing that counsel does can bind the trial judge, who in sentencing has an independent duty to perform and discretion to exercise. See Malvaso v. The Queen (1989) 168 C.L.R. 227, 233. That was a case in which Mason C.J., Brennan and Gaudron JJ. considered that an agreement that prosecuting counsel would "stand mute" while a suspended sentence was sought was relevant to the question whether leave should be granted to the Attorney-General to appeal against sentence on the grounds of its leniency.

The right of the Attorney-General in Queensland to appeal against sentence does not, as in some other States, depend on a favourable exercise of the Court's discretion : cf. Blackett (1990) 50 A.Crim.R. 228, 231. However, it remains true that the prosecution is under a duty to assist the sentencing judge to avoid appealable errors; and, for the reasons that are identified in Tait (1979) 46 F.L.R. 386, 388-390, this Court may properly refuse to intervene on behalf of the Attorney-General to correct what is said to be an error in sentencing if it has been caused or contributed to by a failure of the prosecution to do what was needed to avert that error in the court below. The sentencing process cannot be expected to operate satisfactorily, in terms of either justice or efficiency, if arguments in support of adopting a particular sentencing option are not advanced at the hearing, but deferred until appeal.

Having made that observation, the present case is nevertheless not one in which a different sentence would obviously have been imposed had counsel for the Crown not adopted a "neutral" position on the appropriateness of imposing a sentence of imprisonment. The aggravating circumstances constituted by the effect of the applicant's alcohol intake and his previous driving record are partly offset here by the fact that the quality of the dangerous driving was by no means as serious as in many other cases of this kind, and that the death that followed was not readily foreseeable because of the unexpected presence on the overpass bridge of the deceased and his companion. When all matters are considered, we see no reason for interfering with the sentence imposed.

The appeal by the Attorney-General should be dismissed. The application for leave to appeal should be refused.