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

BRYAN GORDON TRICKLEBANK

(Applicant)

C.A. No. 143 of 1993

T H E Q U E E N

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…

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 Tricklebank

Details

AGLC: R v Tricklebank [1993] QCA 268
Case: [1993] QCA 268
Decision Date: 29/07/1993

CaseChat Overview and Summary

In the case of R v Tricklebank, the Court of Appeal of the Supreme Court of Queensland dismissed both the Attorney-General's appeal against the sentence and the applicant's application for leave to appeal against the sentence. The applicant, Bryan Gordon Tricklebank, had been convicted of dangerous driving causing death while adversely affected by an intoxicating substance, namely alcohol. The legal issues before the court included whether the sentencing judge could take into account the circumstance of aggravation that the applicant was adversely affected by alcohol at the time of the offence and whether the applicant's prior drink-driving conviction and sentence constituted a bar to a more severe penalty being imposed in the current case.

The court held that Section 16 of the Criminal Code prohibits an offender from being twice punished for the same act or omission, except in cases where the act or omission causes the death of another person. The court found that the exception applied in this case, as the applicant's act of driving while adversely affected by alcohol had caused the death of the victim. Therefore, the sentencing judge was entitled to take into account the aggravating circumstance of the applicant being adversely affected by alcohol when determining the appropriate sentence.

The court also noted that the applicant's prior drink-driving conviction and sentence did not bar a more severe penalty being imposed in the current case, as the two acts of driving were not the same within the meaning of Section 16. The aggravating circumstance of being adversely affected by alcohol did not transform the act of dangerous driving into the same act of drink-driving for which the applicant had been punished previously.

Ultimately, the court found that the sentence imposed on the applicant was not excessive, given his previous driving record and the fact that he was adversely affected by alcohol at the time of the offence. The court dismissed the Attorney-General's appeal and refused the applicant's application for leave to appeal against the sentence.

Orders