Arthur v Police

Case [2008] SASC 213


SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

ARTHUR v POLICE

[2008] SASC 213

Judgment of The Honourable Justice Gray

11 August 2008

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PLEAS - SPECIAL PLEAS - PLEA OF AUTREFOIS ACQUIT OR AUTREFOIS CONVICT - WHETHER SUFFICIENT BAR - TEST - PARTICULAR CASES

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE - DISCRETION OF COURT

Appeal against conviction and sentence – complaint laid against defendant (appellant) charged three offences: (i) aggravated careless driving, section 45 Road Traffic Act 1962 (SA) (“first count”); (ii) driving with excess blood alcohol, section 47B(1)(a) Road Traffic Act (“second count”); (iii) driving whilst licence suspended, section 70E(5) Criminal Law Sentencing Act 1988 (SA) (“third count”) – circumstances of aggravation pleaded for first count were that defendant drove with excess blood alcohol – defendant convicted on all counts by magistrate – on first count, 3 months’ imprisonment and 9 months’ disqualification period imposed – on second count, $900 fine and 18 months’ disqualification period imposed – on third count, no further penalty imposed – defendant appealed against conviction on second and third counts – defendant appealed against sentence on first count – defendant claimed that third count was laid pursuant to incorrect statutory provision and should be set aside – defendant also raised plea in bar of autrefois convict against conviction on second count on the basis that the elements of the second count were wholly included within the elements of the first count – defendant further claimed that sentence of imprisonment on count one was manifestly excessive and should have been suspended – whether section 45 of the Road Traffic Act creates a single or multiple offences – whether plea in bar of autrefois convict available – whether “good reason” exists to suspend sentence on first count - on the hearing of the appeal leave granted to amend circumstances of aggravation pleaded on count one to include driving while suspended, by consent.

Held, allowing the appeal: section 45 of Road Traffic Act creates multiple offences – elements of the second and third counts of the amended complaint wholly included within elements of first count – accordingly, pleas in bar of autrefois convict available against convictions on second and third counts – third count was laid pursuant to incorrect statutory provision – convictions recorded on second and third counts set aside – defendant re-sentenced – having regard to time spent in custody sentence of imprisonment of 10 weeks’ imposed – good reason exists to suspend sentence – defendant disqualified from driving until further order.

Road Traffic Act 1961 (SA) s 45, s 46, s 47B(1)(a), s 164A and s 168; Criminal Law Sentencing Act 1988 (SA) s 70E(5); Motor Vehicles Act 1959 (SA) s 91(5); Statutes Amendment (Vehicle and Vessel Offences) Act 2005 (SA) s 19; Criminal…

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Arthur v Police [2008] SASC 213
Case
[2008] SASC 213
Decision Date

CaseChat Overview and Summary

In the matter of Arthur v Police, the defendant, Arthur, was appealing against his conviction and sentence for multiple driving-related offences. The charges against Arthur included aggravated careless driving, driving with excess blood alcohol, and driving while his licence was suspended. After being convicted by a magistrate on all counts, Arthur appealed against the conviction on the second and third counts, as well as the sentence imposed on the first count. Arthur argued that the third count was laid pursuant to the incorrect statutory provision and should be set aside. Additionally, Arthur raised a plea in bar of autrefois convict against the conviction on the second count, asserting that the elements of the second count were wholly included within the elements of the first count. Arthur further claimed that the sentence of imprisonment on count one was manifestly excessive and should have been suspended.

The court was required to determine whether section 45 of the Road Traffic Act creates a single or multiple offences. The court also needed to decide whether the plea in bar of autrefois convict was available against the convictions on the second and third counts. Additionally, the court had to consider whether there was good reason to suspend the sentence on the first count. Upon hearing the appeal, leave was granted to amend the circumstances of aggravation pleaded on count one to include driving while suspended, by consent.

The court held that section 45 of the Road Traffic Act creates multiple offences, and the elements of the second and third counts were wholly included within the elements of the first count. As a result, the pleas in bar of autrefois convict were available against the convictions on the second and third counts. The court also found that the third count was laid pursuant to the incorrect statutory provision, and thus, the convictions on the second and third counts were set aside. The court allowed the appeal against the sentence on the first count and re-sentenced Arthur, imposing a term of imprisonment of 10 weeks, which was suspended on the defendant’s entry into a good behaviour bond of 3 years. The licence disqualification imposed by the magistrate would remain in place.

In conclusion, the appeal against the convictions on counts two and three was allowed. The convictions on counts two and three were set aside. The appeal against the sentence was also allowed, and the defendant was re-sentenced. The sentence imposed by the magistrate was set aside. The defendant was sentenced to a term of imprisonment of 10 weeks, which was suspended on the defendant’s entry into a good behaviour bond of 3 years. The licence disqualification imposed by the magistrate would remain in place.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
I have reached the conclusion that the defendant should not be permitted to drive a motor vehicle until he has satisfied the relevant authorities that he is fit to do so. In this respect, given his background and his problems with depression, anxiety and alcohol dependence, it may be expected that appropriate medical evidence will be provided to the relevant authorities on any application that he be allowed to drive. To this end, I propose to order that he be suspended from driving or holding a driver’s licence until further order. Conclusion Having regard to the foregoing, I make the following orders:-The appeal against the convictions on counts two and three is allowed;-The convictions on counts two and three are set aside;-The appeal against sentence is allowed and this Court should re-sentence the defendant. The sentence imposed by the Magistrate is set aside;-The defendant on count one is sentenced to a term of imprisonment of 10 weeks. That sentence is suspended on the defendant’s entry into a good behaviour bond of 3 years. Further terms of the bond are that the defendant is to be supervised for a period of 18 months and that he is to follow such course as that may be advised with respect to drug dependence. A further term is that he is to undertake 150 hours of community service within 12 months.-The licence disqualification imposed by the Magistrate will remain in place.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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