R v Tricklebank [1993] QCA 268

Court of Appeal (Qld)|1993-07-29|Before: McPherson JA, Demack J, Mr P, Hart J

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.

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] HCA 58; (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, 388390, this Court may properly refuse to intervene on behalf of the AttorneyGeneral 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.

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] HCA 20; (1906) 3 C.L.R. 682 at 683 in the course of argument said:

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] HCA 35; (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.

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