Ridgeway v Parravicini[2008] QDC 38

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   As a result of an incident on 8 June 2007 the respondent was charged with six offences. One was of dangerously operating a motorbike and at the time excessively speeding and also at the time being adversely affected by an intoxicating substance; the next was of failure to stop at an intersection; two offences were of speeding; one was of failing to stop after being given a direction by a police officer, and the final offence was of driving whilst under the influence of liquor or a drug.

2. [2]
   The respondent pleaded guilty to the first five charges on 28 June 2007 and was fined and disqualified from holding or obtaining a driver’s licence for eight months. He contested the sixth charge.

3. [3]
   The accepted facts giving rise to the charges were that:

• At approximately 11.40pm on 8 June 2007 uniformed police from the Cairns Traffic Branch were conducting stationary speed enforcement in Manunda.
• Police observed the respondent riding a motor bike, stationary at the intersection of Hoare and Clarke Streets.  Police followed the respondent as he proceeded across Hoare Street, and continued along Clarke Street, a designated 50km/hr speed zone.  The respondent was travelling at a speed slightly in excess of 90km/hr.
• The respondent proceeded through a stop sign at the intersection of Clarke and Wilkinson Streets whilst travelling at 50-60km/hr.  Police activated emergency lights in an attempt to intercept the respondent.
• The respondent accelerated along Wilkinson Street and braked heavily whilst proceeding right through a giveway sign into English Street at a speed of 50-60km/hr.
• The respondent accelerated along English Street, rounding a bend and causing a group of five to eight people crossing the road, to scatter as the motor cycle approached.
• The respondent was observed to wobble as he braked heavily before proceeding left into Anderson Street which is a two lane straight road with a designated sign 60km/hr speed limit.  The respondent accelerated to a speed in excess of 110km/hr.  The traffic at the time was moderate with several vehicles observed in front and behind the respondents’ motor cycle.
• The respondent braked heavily as he approached the Anderson and Pease Street roundabout before turning right into Pease Street.  A Commodore motor vehicle entering the roundabout on the respondents’ right braked and stopped.  The respondent accelerated along Pease Street which is a single lane road, overtaking a small sedan on the left side.
• The respondent proceeded left into Jensen Street and again accelerated.  The respondent was followed at a speed of 84km/hr in the signed 60km/hr zone.  Police drew level with the respondent and after travelling a considerable distance the respondent moved towards the kerb and surrendered.

4. [4]
   The respondent submitted to a breath analysis which revealed a blood alcohol reading of 0.156. As his blood alcohol level exceeded 0.15, the respondent was conclusively presumed (pursuant to s 79A and s 79(3) of the Transport Operations (Road Use Management) Act 1995 (“TORUM”)) to have been under the influence of alcohol.  The provisions of TORUM also meant that the respondent was conclusively presumed to have been adversely affected by alcohol in relation to the charge of dangerous operation of a motor vehicle.

5. [5]
   The place of the commission of most of the summary offences is charged as “Manunda”. However the place of the commission of the dangerous operation offence is particularised as “English and Pease Street Manunda” and of the driving under the influence offence as “Clarke Street Manunda”. It is clear however from the facts that all six charges arose (as submitted by the respondent) “out of a single journey which covered a short distance, extending over what must have been a very short period of time” and amounted to “an uninterrupted course of conduct”.

6. [6]
   After a hearing involving no evidence and submissions only, the Magistrate decided that the charge of driving under the influence of liquor or a drug should be permanently stayed on the basis that if it were to go ahead and the respondent convicted, even if no further penalty was imposed, it would amount to the respondent being twice punished for the same act and would therefore offend s 16 of the Criminal Code.  This was because the respondent had already been convicted and punished for the dangerous operation offence arising out of the same course of conduct. The appellant appeals against that decision.

Legislative Provisions 

7. [7]
   Section 16 of the Criminal Code provides:

“16  Person not to be twice punished for the 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 where the act or omission is such that by means thereof the person causes the death of another person, in which case the person may be convicted of the offence of which the person is guilty by reason of causing such death, notwithstanding that the person has already been convicted of some other offence constituted by the act or omission.”

8. [8]
   Section 17 of the Criminal Code provides:

“17  Former conviction or acquittal

It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment on which the person might have been convicted of the offence with which the person is charged, or has already been acquitted upon indictment, or has already been convicted, of an offence of which the person might be convicted upon the indictment or complaint on which the person is charged.”

9. [9]
   Section 7 of the Criminal Code Act 1899 provides:

“7  Offender may be prosecuted under Code or other statute

When an offender is punishable under the provisions of the Code, and also under the provisions of some other statute, the offender may be prosecuted and convicted under the provisions either of the Code or of such other statute, so that the offender is not twice punished for the same offence.”

10. [10]
    Section 45 of the Acts Interpretation Act 1954 provides:

“45 Offence punishable only once

3. (1)
   If an act or omission is an offence under each of two or more laws, the offender may be prosecuted and punished under any of the laws, but the offender may not be punished more than once for the same offence.

3. (2)
   Subsection (1) applies to a law unless an Act otherwise expressly provides.

3. (3)
   In this section-

law includes the common law.”

Magistrate’s decision

11. [11]
    The Magistrate relied on a decision of Wall DCJ sitting in his original jurisdiction (R v Grannigan [2004] QDC 268) as authority for the proposition that s 16 of the Criminal Code (the Code) applies to a situation where a defendant is charged with both dangerous operation of a vehicle whilst adversely affected by an intoxicating substance under s 328A of the Code, and with driving a motor vehicle whilst under the influence of liquor or a drug pursuant to s 79(1)(a) of  TORUM.

12. [12]
    The Magistrate also found Grannigan authority for the proposition that even if a defendant pleads guilty to the offence created by TORUM and is convicted but does not have any further penalty imposed, then such a conviction can amount to a punishment so that the defendant would nevertheless effectively be twice punished for the same act.

The issues

13. [13]
    The issues to be considered in this appeal are therefore:

1. Do the elements of the offences of dangerous operation of a motor vehicle while adversely affected by an intoxicating substance and of driving under the influence of liquor or a drug, in the circumstances of this case, include the same punishable act?

2. Would a conviction for the summary offence without any further penalty amount to a punishment?

Appellant’s arguments

14. [14]
    The appellant relies on the decision of the Court of Appeal of R v Tricklebank [1994] 1 Qd R 330 to argue that s 16 of the Code does not apply in situations where convictions are entered for offences of dangerously driving while adversely affected by alcohol and driving with a blood alcohol concentration.  It is argued that the punishable acts involved in operating a vehicle dangerously while adversely affected, and in driving a vehicle while intoxicated, are different, even though the same evidence may be used to prove each act.

15. [15]
    The appellant also argues on the basis of R v Miller [1986] Qd R 518 and R v Lamprey [1992] 1 Qd R 330 that convictions for dangerously operating of a vehicle while adversely affected and for driving a vehicle while under the influence of liquor or a drug arising out of the same incident cannot be treated as separate convictions for the purposes of mandatory sentencing provisions. Neither of these decisions were referred to by Wall DCJ in Grannigan.   The appellant argues that a conviction without more in the circumstances of this case cannot amount to punishment.

Respondent’s arguments

16. [16]
    The respondent concedes that the Magistrate was not bound by the decision in Grannigan and indeed the Magistrate noted that she could decline to follow the decision if satisfied that it was wrong.

17. [17]
    By reason of his blood alcohol level the respondent was, by the legislation, conclusively presumed to be both adversely affected, and under the influence of alcohol. The respondent argues that the blood alcohol level did more than simply afford evidence of his guilt of the offence of dangerous operation of a vehicle whilst adversely affected. The act of driving with that blood alcohol level, without more, rendered the respondent liable to conviction and punishment for the offence of driving under the influence. Once it was established that his driving was also dangerous, his blood alcohol level, without more, rendered the respondent liable to additional punishment as his blood alcohol level operated as a circumstance of aggravation in relation to the dangerous operation charge.

18. [18]
    Under TORUM the respondent was conclusively presumed to have been both adversely affected, and under the influence of alcohol. Logically, the respondent argues, a person who is under the influence of alcohol must also be adversely affected by it and to be punished for driving whilst under the influence and for driving whilst adversely affected, would be to be punished twice for the same act.

Relevant authorities

19. [19]
    Grannigan was convicted after trial of two indictable offences, firstly that he unlawfully used a motor vehicle without the consent of the person in lawful possession of it and secondly, that he dangerously operated a vehicle and at the time he was adversely affected by an intoxicating substance.  After Grannigan’s conviction, sentencing was adjourned to allow two related summary offences to be transmitted to the District Court from the Magistrates Court.  These offences were that he drove a motor vehicle not being at the time the holder of a driver’s licence and that he drove a motor vehicle whilst he was under the influence of liquor or a drug.  All of the offences arose out of the same incident.  Grannigan pleaded guilty to driving without a licence but when arraigned on the offence of driving whilst under the influence of liquor he pleaded autreforis convict and also relied upon s 16 of the Code.  Wall DCJ held that autreforis convict or s 17 of the Code did not have any application in the circumstances.

20. [20]
    With respect to the application of s 16 of the Code, Wall DCJ referred to the Queensland decisions of R v Gordon, ex parte Attorney-General [1975] QdR 301 and R v Tricklebank [1994] 1 QdR 330 and came to the conclusion:-

“In my view, the resolution of this question involves factual matters.  It is difficult to arrive at a common interpretational approach to s 16 – for example, “punishable act” or “wrongful act” – which is capable of applying in all situations.  A common sense approach is required which in a practical way has regard to what in reality is involved in the two offences.”

21. [21]
    His Honour noted that in the case before him, it was a circumstance of aggravation for the dangerous operation charge, that the accused when operating the vehicle was adversely affected by an intoxicating substance. He noted that the summary offence of driving whilst under the influence of liquor arose out of the same driving which was the subject of the indictable offence and the same blood alcohol reading was relied upon for each offence.

22. [22]
    His Honour noted that the two offences in Tricklebank were dangerous driving causing death with the circumstance of aggravation that the applicant was at the time adversely affected by alcohol, and driving whilst having a blood alcohol concentration of .1%.   Wall DCJ preferred the approach taken in that case by Demack J when he held that the “act” of driving a motor vehicle with a particular blood alcohol level (below .15%) was not the same “act” as any of the acts constituting the elements of the offence of dangerous driving of a vehicle causing death whilst adversely affected by alcohol.

23. [23]
    Wall DCJ found that in the case before him the summary offence did in fact equate with the “act” of being adversely affected by alcohol. He held that “for practical purposes the acts are the same: dangerous driving whilst affected by alcohol; and driving under the influence of alcohol at the same time and place”. He therefore held that the act of being adversely affected by an intoxicating substance in relation to the dangerous operation offence, was the same act relied upon to establish the summary offence and that was the “punishable act”. Section 16 of the Code therefore clearly applied.

24. [24]
    On the issue of whether a conviction without further penalty amounts to “punishment” for the purposes of s 16 of the Code, Wall DCJ referred to s 7 of the Code and noted that in that section prosecution and conviction appears to be equated with punishment.  Similarly, s 45 of the Acts Interpretation Act 1954 appears to equate prosecution with punishment. 

25. [25]
    With respect to section 45 of the Acts Interpretation Act 1954, Wall DCJ noted that the circumstance of being adversely affected by alcohol was not in itself an offence against the Code and therefore the circumstances did not give rise to a situation where the act amounted to an offence under two laws.

26. [26]
    As the fact of conviction would appear on the defendant’s criminal or traffic history and could be used as a basis for a heavier penalty for subsequent offending, regardless of whether any penalty was imposed, a conviction itself, without more, could amount to a punishment. In Grannigan Wall DCJ was of the view that he had before him an instance of “double jeopardy” and he considered that it would be an abuse of process to proceed with the summary offence of driving under the influence.  He ordered therefore that there be a permanent stay of the proceedings on that charge.

27. [27]
    The two charges faced by the defendant in Gordon were (a) being in charge of a motor vehicle whilst under the influence of liquor or a drug and (b) dangerous driving causing grievous bodily harm.  Gordon pleaded guilty before a magistrate to the first charge and was fined and disqualified.  He subsequently pleaded guilty in the District Court to the second charge but contended that the Judge was debarred by the provisions of s 16 of the Code from imposing further punishment upon him.  The Judge agreed but did record a conviction and impose no penalty. 

28. [28]
    In analysing the effect of the relevant legislative provisions Hanger CJ said at p 306:-

“Section 16, in saying that a person cannot be twice punished for the same act or omission, must be referring to punishable acts or omissions; and the prohibition applies, though the act or omission would constitute two different offences.  It is to these cases that the section is directed.  The exceptional case is where there has been one act which has had a particular result – death.  In this case, the act of e.g. assault is punishable; if the same punishable act causes death, it is also punishable notwithstanding the earlier punishment.”

He went on (at p 307):-

“If this construction of s 16 is right, then the section would have no application to the circumstances of the present case.  The punishable act or omission which had already been dealt with by the Magistrate being in charge of a motor vehicle while under the influence of liquor or a drug – was not the punishable act of omission before His Honour – dangerous driving causing grievous bodily harm.”

29. [29]
    In the same case Williams J (at p 313) found that the “act” for which the defendant was punished, in relation to the summary offence, was “the fact of driving the vehicle at a time when he was under the influence of liquor and at a particular place, namely the Cunningham Highway.  His manner of driving the vehicle was not a necessary element in establishing the offence, although it could have provided some evidence of unusual behaviour due to the alcohol.” 

30. [30]
    With respect to the charge of dangerous driving causing grievous bodily harm Williams J said (p 313):-

“…it is relevant not only that he was driving the vehicle but also that there existed all or some of the surrounding circumstances as set out above in the definition of dangerous driving, none of which includes being under the influence of liquor.  In the one it is the act of driving in a particular condition; in the other it is the act of driving in a particular manner in particular circumstances causing a certain result which is the gravamen of the offence.  To my mind the same “act or omission” is not involved.”

31. [31]
    Williams J concluded (p 323):-

“…that the proper test is whether the same wrongful act or omission which previously resulted in conviction and punishment, is the central theme, the focal point or for want of a more apt choice of words and perhaps more appropriately, the basic act or omission in the later offence charged.  If it is, then except in the case of resulting death in terms of the exception in s 16, a person may not be twice punished for that same act or omission.”

32. [32]
    In Gordon, their Honours held that s 16 of the Code had no application in the circumstances.

33. [33]
    The Court of Appeal in Tricklebank held that in the circumstances of that case s 16 did not apply.  Macrossan CJ considered that because of the exception in s 16 (where the act is such that by means thereof the defendant causes the death of another person), the sentencing judge in that case was entitled, on sentencing, to take into consideration the fact that the defendant was adversely affected by an intoxicating substance at the time the dangerous driving occurred. 

34. [34]
    McPherson JA summarised the approaches made by Williams J and Hanger CJ in Gordon and said at p 336:-

“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 vehicle 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, …”

He went on:-

“…the character of the two acts of driving is different, and they are by no means either co-extensive or even necessarily mutually exclusive.”

35. [35]
    In McPherson JA’s opinion:-

“…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.”

And:-

“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.”

36. [36]
    On the other hand Demack J, after analysing s 2 of the Code:-

“An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.”

and the definition of “circumstance of aggravation” in s 1 of the Code:-

“the term …means and includes any circumstance by reason whereof an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance.”

concluded that -

“By definition, if a circumstance of aggravation is relied on, there will be more than one “act” or “omission”, that is, there will be more than “one element” to the offence”.

37. [37]
    Demack J considered the provisions of the sixth paragraph s 328A of the Code (the equivalent is what is now s 328A(6)) which provides for what was then included in the term “drives a motor vehicle on a road or in a public place dangerously” and noted that the matters listed included considerations which would naturally be defined as “acts” and as “circumstances”. He concluded:-

“…in my opinion, in respect of the charge of dangerous driving, the “act” is the “dangerous driving” and the presence of alcohol in the driver’s blood is to be regarded as no more than a circumstance which may be considered in determining whether the driving is dangerous.”

In Demack J’s opinion “being adversely affected is a thing done as the result or practical outcome of the state of consuming liquor and consequently an “act””.

38. [38]
    However, because in Tricklebank the defendant had pleaded guilty to having a blood alcohol concentration exceeding .1% that was not the same “act” as being “adversely affected by an intoxicating substance”.  The three “acts” which needed to be proven in that case with respect to the indictable offence were,

(1) driving a motor vehicle dangerously,

(2) causing death,

(3) being adversely affected by alcohol.

39. [39]
    If the approach of Demack J in Tricklebank is to be followed, as it was in Grannigan, then the “act” of driving under the influence of liquor must equate with the “act” of being adversely affected by an intoxicating substance.

40. [40]
    Section 79A of TORUM provides that because the respondent’s blood alcohol level exceeded 0.15 he was over the “high alcohol limit” and was therefore conclusively presumed to have been under the influence of alcohol (s 79(3) of TORUM). Similarly, s 80(24A)(c) of TORUM provides that for the purpose of proceedings for an indictable offence in connection with or arising out of the driving of a motor vehicle the respondent was conclusively presumed to be adversely affected by alcohol.

41. [41]
    The High Court decision of Pearce v R [1998] 194 CLR 610 was not considered in Grannigan.  In that case the defendant was charged with one count of having maliciously inflicted grievous bodily harm with intent to do the victim grievous bodily harm, and with another of having broken and entered the victim’s dwelling house and while in it inflicting grievous bodily harm on him.  The charges arose out of a single incident when the defendant broke into the victim’s home and beat him.

42. [42]
    In a joint judgment, McHugh, Hayne and Callinan JJ held that although the elements of the offences charged against the defendant overlapped they were not identical. The first offence required a specific intent to do grievous bodily harm whereas the second required only an intention to do the acts that caused the harm. The second offence required a breaking and entering whereas the first did not.

43. [43]
    Mr English on behalf of the appellant in this case referred to para 21 of Pearce where the majority went on to say:-

“Further, when it is said that it is enough if the offences are “substantially” the same, this should not be understood as inviting departure from an analysis of, and comparison between, the elements of the two offences under consideration.”

The submission on behalf of the appellant is that this approach would have affirmed the decision in Tricklebank if it had been applied in Grannigan.  This passage in fact appears in the context of a discussion of the issue of double jeopardy rather than double punishment.

44. [44]
    It is argued on behalf of the respondent that an analysis of the elements of the two offences in this case would lead to the conclusion that both the offence of dangerous operation of a motor vehicle while adversely affected by an intoxicating substance and that of driving whilst under the influence of liquor, involve the common element of being adversely affected by alcohol. That element is, it is argued a punishable act, as on the one hand it increases the punishment for which the respondent is liable with respect to the indictable offence and on the other it forms one of the bases of punishment for the traffic offence.

45. [45]
    In Pearce their Honours said at para 40:-

“To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common.  No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn.  Often those boundaries will be drawn in a way that means that offences overlap.  To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just desserts.”

46. [46]
    At para 42 their Honours said:-

“It is clear in this case that a single act (the appellant’s inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110.  The identification of a single act as common to two offences may not always be as straightforward.  It should, however, be emphasised that the inquiry is not to be attended by “excessive subtleties and refinements”.  It should be approached as a matter of common sense, not as a matter of semantics.”

47. [47]
    In Pearce the appellant was sentenced to concurrent terms of imprisonment for each offence.  The High Court held that the appellant had been doubly punished for a single act, namely, the infliction of grievous bodily harm. 

48. [48]
    In R v Robinson & Stokes ex parte Attorney-General [2000] 2 QdR 413 and R v Sheppard [2001] 1 QdR 504 the Queensland Court of Appeal applied the reasoning of the High Court in Pearce to s 16 of the Code and held that where the acts constituting one charge were the same acts which constituted other charges (in Robinson & Stokes the particulars of the charge of torture included the acts alleged with respect to charges of grievous bodily harm, assault occasioning bodily harm and deprivation of liberty and in Sheppard the same conduct constituted the offence of uttering and the offence of false pretences) then no separate punishment for the second offences should be imposed.

Approach to be taken

49. [49]
    The authorities require the identification of the elements of each of the offences. In order to convict the respondent of dangerously operating a motor bike in the terms charged, the prosecution would have to prove –

1. that he operated the motor bike

2. that he did so dangerously

3. that at the time he was excessively speeding and

4. that at the time he was adversely affected by an intoxicating substance.

50. [50]
    In order to convict the respondent of the offence of driving whilst under the influence of liquor the prosecution would have to prove –

1. that the respondent drove a motor vehicle; and

2. that he did so whilst under the influence of liquor.

51. [51]
    As indicated in paragraph 5 above, the two offences arose out of a short uninterrupted course of conduct and there appears to be no dispute that there is essential “unity of time and place” between both offences.

52. [52]
    As outlined in para 40 above, the provisions of TORUM mean that the evidence of the respondent’s blood alcohol concentration was not only evidence going to show that he was adversely affected by alcohol with respect to the first charge, and under the influence of alcohol with respect to the second, but had the effect of conclusively presuming that the respondent was adversely affected and under the influence of alcohol respectively. Effectively therefore, the two elements of the indictable and summary offences are the same. The test of the majority in Pearce is therefore satisfied. 

53. [53]
    However, the High Court in Pearce was considering the law in New South Wales, a common law jurisdiction, and were not specifically concerned with the application of a provision equivalent to s 16 of the Code.  As Griffith CJ said in Connelly v Meagher; ex parte Connelly [1906] 3 CLR 682 at 683:-

“The Code lays down a new test – section 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 – sections 17 and 598.”

And later at 684:-

“The point sought to be raised is, no doubt, in one sense an important one.  It is provided by s 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 s 17 and 598 of the Code.  The rule in s 16 may or may not be identical with the common law, but it is the law of Queensland.”

54. [54]
    The circumstances of this case differ from those in Gordon as the indictable offence in Gordon did not include the element of being adversely affected by alcohol.  Similarly, in Tricklebank, although the indictable offence included the element that the defendant was adversely affected by alcohol, the summary offence involved him having a blood alcohol concentration of .1% which did not lead to the statutory presumption that he was under the influence of liquor.

55. [55]
    The present provisions of s 328A of the Code combined with the provisions of TORUM referred to above, mean that the punishable act of operating a motor vehicle whilst adversely affected by an intoxicating substance and the punishable act of driving a motor vehicle whilst under the influence of liquor or a drug do amount to the same punishable acts. In the first case, that act renders the respondent liable to a greater penalty and in the second case it forms the basis of the commission of the offence. The summary offence is therefore subsumed by the indictable offence or, to apply the test stated by Williams J in Gordon, the wrongful act in the indictable offence is “the central theme, the focal point or … the basic act” in the summary offence.

56. [56]
    It should be noted of course, that the result in this case is that the respondent cannot be punished for the summary offence. If the case was that he had already pleaded guilty to and been punished for the summary offence, he could not subsequently raise s 16 of the Code as a bar to the prosecution of the indictable offence. The indictable offence involves the further punishable act of operating the vehicle dangerously.  The situation in Tricklebank was that the defendant had pleaded guilty and been punished for the summary offence prior to the trial of the dangerous driving charge.  The proper course for the prosecuting authorities to take in these cases is to lay both charges at the same time and proceed with the indictable offence first.  If the defendant is found guilty of the indictable offence then the prosecuting authority should withdraw the summary offence.

57. [57]
    The appellant argues that the application of this reasoning will lead to a situation where an offender with a lower level of intoxication can be doubly convicted and punished “while an offender who represents a greater danger to the public could find that a permanent stay is available because they have a high blood alcohol reading which deems them adversely affected”. That may be so but that is hardly an argument against a proper application of the law and any such unfairness could be answered by prosecuting authorities avoiding unnecessary duplication of charges. As pointed out on behalf of the respondent the practice of laying “a multitude of charges which are really encompassed by one serious charge” has often been criticised (see Pearce and R v Lamprey [1992] 1 QdR 294 at 296).

Conviction as punishment

58. [58]
    Once the conclusion is reached that by pleading guilty to and being punished for the indictable offence the respondent in this case could not be further punished for the summary offence, what then is the appropriate course for the Court to take?

59. [59]
    It is the appellant’s contention in this case that the respondent should be convicted without further punishment. The provisions of TORUM would, in that case, render the respondent automatically liable to disqualification of his driver’s licence for six months (s 86(1)). As noted by Wall DCJ in Grannigan a conviction without further punishment would nevertheless appear on the respondent’s criminal or traffic history and could be used as a basis for a heavy penalty if there was subsequent offending.  That disqualification would date from the actual conviction.  Accordingly, in this case, if a conviction was recorded the respondent would suffer a real penalty. 

60. [60]
    In Grannigan Wall DCJ discussed the options available to a court upon reaching the conclusion that it would be an abuse of process to proceed on the summary offence and noted the options of dismissing the complaint or ordering a permanent stay of the proceedings on that charge.  In this case the Magistrate made the decision to permanently stay the proceedings and I can see no reason why that was not an appropriate decision in the circumstances.  The appeal is accordingly dismissed.

61. [61]
    The appellant has requested that I state a case to the Court of Appeal pursuant to s 227 of the Justices Act with respect to this matter.  I am not persuaded that such a course is necessary.  The way the legislative provisions relating to the dangerous operation of a motor vehicle and driving under the influence of liquor or a drug are presently drafted mean that s 16 of the Code is clearly applicable on the authorities to circumstances such as those involving the respondent in this case.