Arthur v Police

[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 Law Consolidation Act 1935 (SA) s 19A and s 19AC, referred to.
Courtie v The Queen [1984] AC 463; Kingswell v The Queen (1985) 159 CLR 264; Montgomery v Stewart (1967) 116 CLR 220; O’Brien v Fraser (1990) 66 NTR 9; Pearce v R (1998) 194 CLR 610; R v Hietanen (1989) 51 SASR 51; R v O’Loughlin; Ex parte Ralphs (1971) 1 SASR 219; R v P, NJ (No 2) (2007) 99 SASR 1; R v Palaga (2001) 80 SASR 19; Romeyko v Samuels (1971) 2 SASR 529; Rucioch v Police (2004) 88 SASR 326, considered.

ARTHUR v POLICE
[2008] SASC 213

Magistrates Appeal

GRAY J.

Introduction

1. This is an appeal against conviction and sentence.

2. The appeal raises for consideration the interpretation of amending legislation creating an offence of aggravated careless driving and whether the amended legislation creates one or more offences.  In the circumstances of this particular case, there also arise issues of autrefois convict. 

3. At about 10.30am on Saturday 30 June 2007, Jason Arthur, the defendant and appellant, was driving a motor vehicle on Carlton Parade, Port Augusta.  He came into collision with a vehicle which was stationary giving way to approaching traffic.  The force of the collision pushed the other vehicle to the incorrect side of the road.  The other driver sustained a whiplash injury and was taken for treatment to the Port Augusta Hospital.  The police attended the scene and formed the opinion that the defendant had been drinking.  Testing disclosed the defendant’s blood alcohol reading to be 0.244.

4. The defendant was charged on complaint as follows:

   1On the 30th day of June, 2007, at Port Augusta in the said State drove a vehicle namely a motor vehicle on a road namely Carlton Parade without due care.

   Section 45 of the Road Traffic Act, 1961.

   This is an aggravated offence.

   It is further alleged that the circumstances are that there was present in his blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood.

   This is a summary offence.

   2On the 30th day of June, 2007 at Port Augusta in the said State drove a motor vehicle on a road namely Carlton Parade while there was present in his blood the prescribed concentration of alcohol as defined in Section 47A of the Road Traffic Act, 1961.

   Section 47B(1)(a) of the Road Traffic Act, 1961.

   This is a summary offence.

   It is further alleged that the concentration of alcohol was .244 grams in a hundred millilitres of blood.

   3On the 30th day of June, 2007 at Port Augusta in the said State drove a motor vehicle on a road namely Carlton Parade whilst his licence was suspended.

   Section 70E(5) of the Criminal Law (Sentencing) Act, 1988.

   This is a summary offence.

   The defendant sought assistance from the Legal Aid Commission.  Apparently the Commission did not consider that there was a risk that the defendant would be sentenced to imprisonment and legal assistance was refused.  As a result the defendant appeared before the Port Augusta Magistrates Court in person and unrepresented.  He entered pleas of guilty to the three counts on the complaint.  The prosecutor outlined the circumstances of the offending and informed the Court of the defendant’s prior record of drink driving. 

5. The Magistrate convicted the defendant of the offence of aggravated due care and imposed a sentence of imprisonment of 3 months.  He declined to suspend the sentence. 

6. The Magistrate, when addressing his discretion to suspend the sentence of imprisonment, remarked:

   I have given the issue of suspension of your sentence considerable thought.  I must be able to find good reason to suspend a sentence.  No good reason flows from the facts.  This was an offence committed in blatant disregard of the law both as to the notice of suspension and driving while exceeding the prescribed concentration.  It is not without relevance that you committed a similar offence of exceeding the prescribed concentration with an excessively high reading only one month earlier.

   So far as your personal circumstances are concerned I accept that you have involved yourself in programs that may assist with your alcohol problem and I commend you in that regard.  However, as I have previously mentioned, both of the offences committed during 2007 were committed after you commenced those programs and that raises some concern about your level of commitment.

   There is nothing else in your background or your current circumstances that persuades me that good reason exists.  I am unable to find good reason to suspend the sentence.

   In addition, on this count the defendant was disqualified from driving for a period of 9 months commencing from the date of sentence – 8 January 2008.

7. On the charge of drink driving, the Magistrate recorded a conviction, imposed a fine of $900 and disqualified the defendant from driving for a period of 18 months commencing on 20 August 2008.  The Magistrate remarked:

   You have a record of offending for drink driving.  On the 11^th June 2002 you were convicted of PCA and fined.  On the 3^rd October 1995 you were convicted of the same offence.  It appears that you were charged with the same offence on the 27^th May 2007, a little over a month before this incident.  For that offence you were fined and your licence was disqualified for 15 months.  I note that your BA reading on that occasion was .217.

8. With respect to the charge of driving while his licence was suspended the Magistrate recorded a conviction but imposed no further penalty, observing:

   That does not mean that I do not believe that your offending was serious but I have taken into consideration the penalty that I have already imposed.

9. On appeal the initial challenge was to the failure of the Magistrate to suspend the term of imprisonment.  However, in the course of the appeal, the grounds for appeal were broadened to challenge the convictions on the second and third counts. 

10. The Solicitor-General acknowledged that there was substance to the latter complaints and accepted that the convictions on counts two and three should be set aside.  At the same time the counsel for the defendant agreed that the respondent should be granted leave to amend count one to include a further circumstance of aggravation – that the defendant drove while his licence was suspended.  In these circumstances, it was accepted by both parties that this Court should allow the appeal, set aside the convictions on the second and third counts, set aside the sentence imposed on the first count and re-sentence the defendant on that count and in so doing should have regard to further evidence tendered on the appeal.

    The Conviction Appeal

    Driving While Suspended

11. It is convenient at the outset to address the complaint concerning the conviction for driving while suspended. It was submitted by the defendant that the complaint alleged a breach of section 70E(5) of the Criminal Law (Sentencing) Act 1988 (SA) in circumstances where there had been no breach of that section.

12. Section 70E relevantly provides:

    (1)An authorised officer may make an order suspending a debtor's driver's licence for a period of 60 days (and such an order may be made despite the fact that the debtor is currently disqualified from holding or obtaining a licence).

    …

    (5)A person must not drive a motor vehicle on a road while his or her licence is suspended under this section.

    Maximum penalty:

    (a)     $2 500; or

    (b)     disqualification from holding or obtaining a driver's licence for a period not exceeding 6 months; or

    (c)     cancellation of the person's driver's licence and disqualification from obtaining such a licence for a period not exceeding 6 months.

    It was accepted that the defendant was driving while suspended but that suspension was the result of the police exercising powers under section 91 of the Road Traffic Act. The relevant offence was against the provisions of section 91(5) of the Motor Vehicles Act 1959 (SA). That section relevantly provides:

    (5)A person must not drive a motor vehicle on a road while his or her licence or learner's permit is suspended or while disqualified in this State or another State or Territory of the Commonwealth from holding or obtaining a licence or learner's permit.

    Maximum penalty:

    For a first offence—imprisonment for 6 months.

    For a subsequent offence—imprisonment for 2 years.

    It is to be observed that the different sections give rise to different penalties. 

13. The Solicitor-General accepted the correctness of the defendant’s submissions and acknowledged that the conviction of driving while suspended should be set aside.  It was also conceded, as will be discussed later in these reasons, that following the amendment of count one to plead further particulars, a plea in bar of autrefois convict would also arise as a result of the amendment to the first count.

    Aggravated Due Care

14. With respect to the count of aggravated due care, the appeal raises important issues under the amended legislation.  Before coming to discuss these issues, it is convenient to outline the section’s legislative history. 

15. Section 45 of the Road Traffic Act had for some decades made it an offence to drive a motor vehicle on a road without due care. Section 45, in force until 29 July 2006, provided:

    Careless driving

    A person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road.

    A breach of the section could lead to a fine and licence disqualification.  Generally it was treated as being an offence appropriate to more minor driving penalties. 

16. Section 45 as amended[1] with effect from 30 July 2006 provides:

    [1]    Statutes Amendment (Vehicle and Vessel Offences) Act 2005 (SA), section 19.

    Careless driving

    (1)A person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road.

    (2)If a court convicts a person of an offence against this section that is an aggravated offence, the following provisions apply:

    (a)     the maximum penalty for the offence is 12 months imprisonment; and

    (b)     the court must order that the person be disqualified from holding or obtaining a driver's licence for such period, being not less than 6 months, as the court thinks fit; and

    (c)     the disqualification prescribed by paragraph (b) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence.

    (3)     For the purposes of this section, an aggravated offence is—

    (a)     an offence that caused the death of, or serious harm to, a person; or

    (b)     an offence committed in any of the following circumstances:

    (i)the offender committed the offence in the course of attempting to escape pursuit by a police officer;

    (ii)the offender was, at the time of the offence, driving a vehicle knowing that he or she was disqualified, under the law of this State or another State or Territory of the Commonwealth, from holding or obtaining a driver's licence or that his or her licence was suspended by notice given under this Act;

    (iii)the offender committed the offence while there was present in his or her blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood;

    (iv)the offender was, at the time of the offence, driving a vehicle in contravention of section 45A or 47.

    (4)If a person is charged with an aggravated offence against this section, the circumstances alleged to aggravate the offence must be stated in the instrument of charge.

    (5)     In this section—

    serious harm means—

    (a)     harm that endangers, or is likely to endanger, a person's life; or

    (b)     harm that consists of, or is likely to result in, loss of, or serious and protracted impairment of, a part of the body or a physical or mental function; or

    (c)     harm that consists of, or is likely to result in, serious disfigurement.

17. For a non-aggravated offence of driving without due care, the penalty provisions of section 164A and 168 of the Road Traffic Act apply. Section 164A provides that a person who is guilty of an offence against the Act for which no penalty is specifically provided is liable to a penalty not exceeding $2,500. Section 168(1) of the Act provides that if a person is convicted of an offence under the Act, the Court may order that the person be disqualified from holding or obtaining a driver’s licence for a fixed period or until further order.

18. For an aggravated offence of driving without due care the maximum penalty is imprisonment for 12 months.  In addition, the Court must order that the person be disqualified from holding or obtaining a driver’s licence for a minimum period of 6 months.

19. Section 45(3)(a) provides that an offence that causes the death of or serious harm to a person is an aggravated offence. It is also to be observed that section 45(3)(b) specifies a further four matters that may give rise to the aggravated offence. All four involve another offence being committed at the time of the act of driving without due care.

20. Whether a particular statutory provision creates a single offence or multiple offences, is to be resolved as a matter of statutory construction by reference to the text and structure of the statute.  In Romeyko v Samuels,[2] Bray CJ explained the process of construction in this way:

    The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics. Of course, there will always be borderline cases and if it is clear that Parliament intended several offences to be committed if the act in question possesses more than one of the forbidden characteristics, that result will follow. See, for example, Bastin v. Davies. So it may be, as [counsel for the Crown] suggests, that s 107(a) creates several offences if more than one of the things referred to therein is enclosed in the same postal article, but it is not necessary to decide that. In s 107(a) the various prohibited things are each separated by the word "or", whereas in s 107(c) the word "or" only appears once before the last item in the collection, and this has sometimes been regarded as a feature of importance, though with respect, it seems to me that it can only possess very limited significance. [3]

    In Courtie, Lord Diplock similarly observed:

    My Lords, where it is provided by a statute that an accused person's liability to have inflicted upon him a maximum punishment which, if the prosecution are successful in establishing the existence in his case of a particular factual ingredient, is greater than the maximum punishment that could be inflicted on him if the existence of that particular factual ingredient were not established, it seems to me to be plain beyond argument that Parliament has thereby created two distinct offences, whether the statute by which they are created does so by using language which treats them as being different species of a single genus of offence, or by using language which treats them as separate offences unrelated to one another. [4]

    [2]     Romeyko v Samuels (1971) 2 SASR 529.

    [3]    Romeyko v Samuels (1992) 2 SASR 529 at 551, 551.

    [4]    Courtie v The Queen [1984] AC 463 at 471.

21. The High Court in Kingswell[5] provides more recent and direct authority as to whether a statute that provides for an increased maximum penalty in the event that a particular factual matter is established shows that Parliament is to be taken to have created two distinct offences.  Gibbs CJ, Wilson and Dawson JJ observed:

    The word 'offence' has no fixed technical meaning in the law … it is the legal definition of the offence which indicates which are its factual ingredients. Putting aside, for the moment, s 80 of the Constitution, there is no fundamental law that declares what the definition of an offence shall contain or that requires the Parliament to include in the definition of an offence any circumstance whose existence renders the offender liable to a maximum punishment greater than that which might have been imposed if the circumstance did not exist. The existence of a particular circumstance may increase the range of punishment available, but yet not alter the nature of the offence, if that is the will of the Parliament. The rule of construction which Lord Diplock [in Courtie] has enunciated is a salutary one, but must yield to an expression of a contrary intention.

    This passage was discussed by Doyle CJ, in Palaga: [6]

    In other words, in their Honours' opinion, [in Kingswell] the question is always one of Parliament's intention. There is at most a presumption that separate offences are created when the proof of certain matters attracts a higher maximum penalty. That decision was considered and followed in The Queen v Meaton (1986) 160 CLR 359. More recently it was considered again by the High Court in Cheng v R (2000) 175 ALR 338; [2000] HCA 53. A majority of the High Court declined to reopen the correctness of Kingswell: see Gleeson CJ, Gummow and Hayne JJ at [36] and [49]; McHugh J at [118], [163] and [170]; Callinan J at [280], [282] and [283]. Kingswell was followed by this Court in R v Hietanen (1989) 51 SASR 510.

    It is also necessary to consider the procedural consequences of the competing constructions.

    [5]    Kingswell v The Queen (1985) 159 CLR 264 at 276.

    [6]    R v Palaga (2001) 80 SASR 19 at [79].

1. In considering the terms of section 45 of the Road Traffic Act, it would appear that there is a basic offence of careless driving and at least one aggravated offence because a greater maximum penalty is imposed for an aggravated offence. The reference in section 45(2) to “an offence against this section that is an aggravated offence” is also indicative of discrete offences. Moreover, unlike the text of the provision considered by King CJ in Hietanen,[7] the offences in section 45 of the Road Traffic Act are set out in separate subsections with different provisions providing the penalty applicable to each.

   [7]    R v Hietanen (1989) 51 SASR 51, 510 at 512

2. The structure of section 45(3) also suggests that there may be at least two aggravated offences: an offence that caused the death of, or serious harm to, a person; and an offence committed in any of the circumstances specified in section 45(3)(b). The further question of whether section 45(3)(b) creates one or more offences also requires close consideration. The offence may be one of driving without due care where one or more of the circumstances in (i) to (iv) are proved[8] or a separate offence may have been created for each circumstance of aggravation.

   [8]    See for example Montgomery v Stewart (1967) 116 CLR 220.

3. In O’Brien v Fraser,[9] Asche CJ considered whether a single charge of assault was bad for duplicity.  The one count of assault alleged five circumstances of aggravation. Asche CJ held that if the charge was only one offence but with circumstances of aggravation, these circumstances could be alleged without the indictment being duplicitous.  The relevant provisions of section 188 of the Northern Territory Criminal Code as referred to in the judgment were as follows:[10]

   (1)     Any person who unlawfully assaults another is guilty of an offence, and if no greater punishment is provided, is liable to imprisonment for one year.

   (2)     If the person assaulted [then follows various circumstances of aggravation] … the offender is guilty of a crime and is liable to imprisonment for 5 years or, upon summary conviction to imprisonment for 2 years.

   Upon examination of the relevant statute, Asche CJ concluded that the offence constituted only one offence. The circumstances of aggravation were contained within the same section.  Further, the second reading speech indicated that the Attorney-General intended for a charge under the relevant section to be able to include a number of circumstances of aggravation and to allow for a conviction to be obtained on some or all of those circumstances.

   [9]    O’Brien v Fraser (1990) 66 NTR 9.

   [10]   O’Brien v Fraser (1990) 66 NTR 9 at 14.

4. However, there are difficulties in applying this approach where the circumstances of aggravation in themselves constitute separate offences.  If one or more of the circumstances is alleged it may not be possible to know, at least after a general jury verdict, whether one or more of the circumstances had been proved.  On the other hand if there is a conviction for the aggravated offence it probably follows that a plea in the nature of autrefois acquit or convict is available even if it may not be known which particular plea in bar is applicable.

5. There is reason to treat careless driving causing death or serious injury as a separate offence. There is a substantial qualitative difference between careless driving causing death or injury on the one hand and careless driving accompanied by any of the circumstances described in section 45(3)(b). To adopt the approach of Bray CJ in Romeyko,[11] careless driving causing death is not merely a different way of committing the offence of careless driving in the accompanying culpable circumstances set out in section 45(3)(b). Recognising as separate offences, careless driving, careless driving causing death or serious injury and careless driving in culpable circumstances provides consistency with the group of offences of reckless driving, reckless driving causing death or serious injury and aggravated reckless driving causing death.[12] Further, it is to be observed that it is unlikely that Parliament intended a single act of driving to be punishable several times over if more than one of the aggravating circumstances in section 45(3)(b) were proved.

   [11]   Romeyko v Samuels (1971) 2 SASR 529

   [12] Section 46 Road Traffic Act 1961; section 19A Criminal Law Consolidation Act 1935.

   Autrefois Convict

6. Several offences may be committed in the course of a single series of events.  However, an offender is to be punished only for the offence charged and not for some other offence.  The principal focus of the rule underlying pleas in bar, is a rule against repeated prosecution for a single offence.  A plea in bar operates to provide relief against double jeopardy.[13]  The test for the application of a plea in bar is one of whether the elements of the offences charged are identical or all of the elements of one offence are wholly included in the other.[14]

   [13]   Pearce v R (1998) 194 CLR 610 at [20], [25], [26] and [57] - [62].

   [14]   Pearce v R (1998) 194 CLR 610 at [24].

7. In O’Loughlin; Ex parte Ralphs,[15] Wells J describes the principle of autrefois convict:

   Where an accused person has been previously convicted and the facts and circumstances which constitute the gist of the later charge are in terms, or in their effect, the same as those constituting the gist of the former, the accused may advance an objection in the nature of autrefois convict and the later prosecution is thereupon barred. The question whether the two offences are in effect the same becomes ultimately one of degree raising issues of mixed fact and law. For the plea to be upheld it must clearly appear from the formal legal ingredients of the two offences and the structure of the factual issues related to those ingredients, that the prosecution is seeking two penal sanctions for, and with respect to, almost identical conduct forming part of the one incident or transaction (whether brief or prolonged).

   ...

   Where the information alleges offences in a descending scale of seriousness, and a verdict or finding of guilty is given or made on the more, or most, serious of the counts, the other counts should, in a court of superior jurisdiction, be stayed, and, in a court of inferior jurisdiction, be either withdrawn by the prosecution, or failing that, dismissed.[16]

   [15]   R v O’Loughlin; Ex parte Ralphs (1971) 1 SASR 219.

   [16]   R v O’Loughlin; Ex parte Ralphs (1971) 1 SASR 219 at 262.

8. To resolve the question of whether a plea in bar is available in any given case, it is necessary to determine what must be proved to establish the commission of each of the offences; what are the essential elements of each of the offences, and what evidence is necessary to establish these.  This requires analysis and comparison of the elements of the two offences concerned.[17]  Ultimately, for a plea in bar to be available, the analysis must lead to the conclusion that the elements of one offence are necessarily wholly included in the other offence and not possibly wholly included in the other offence.[18]

   [17]   Pearce v R (1998) 194 CLR 610 at [24].

   [18]   R v P, NJ (No 2) (2007) 99 SASR 1 at [19].

9. In Pearce,[19] the defendant was charged on the same indictment with breaking and entering with intent to inflict grievous bodily harm and malicious wounding with intent to inflict grievous bodily harm.  There was a significant overlap in the elements of the offences but they were not identical.  The issue was whether the two offences were sufficiently similar to warrant a plea in bar.  The Court held that each of the offences with which the appellant was charged required proof of a fact which the other did not.  It followed that no plea in bar could be upheld.

   [19]   Pearce v R (1998) 194 CLR 610.

10. In Rucioch,[20] the defendant was charged on the one complaint with driving without due care and failure to give way to an oncoming vehicle.  The defendant was driving a large truck, slowed as he approached an intersection, and began to turn right when a motorcycle collided with the truck.  The defendant had failed to see the motorcycle.  The motorcyclist died as a result of the injuries sustained.  Doyle CJ held that while the two offences arose from the same set of facts and from a single incident, they were not the same, nor were the elements of one offence included within the other. The Magistrate was therefore entitled to enter convictions on each count.

    [20]   Rucioch v Police (2004) 88 SASR 326.

11. In O’Loughlin; Ex parte Ralphs,[21] the defendant was charged before a Magistrate, with having driven a motor vehicle while so much under the influence of an intoxicating liquor as to be incapable of exercising effective control of it, contrary to section 47 of the Road Traffic Act 1961.  The defendant was also charged with having on the same occasion driven the vehicle while there was present in his blood the prescribed concentration of alcohol, contrary to section 47B of the Act.  The defendant pleaded guilty to the first charge and was convicted and fined.  The prosecutor then asked that a plea be taken from the defendant on the second charge.  However, the Magistrate directed a stay of proceedings on the second charge on the grounds that a conviction on the second charge would result in the defendant being punished twice for the same act or acts.  The prosecution appealed.  On appeal the Supreme Court held that there was sufficient identity between the acts or omissions constituting the two offences charged to make it improper for the defendant to be convicted of the second charge as well as the first, and that the second charge should have been dismissed.

    [21]   R v O’Loughlin; Ex parte Ralphs (1971) 1 SASR 219.

12. It is convenient, against the background of the above authorities to turn to a consideration of section 45 and in particular the circumstance of aggravation identified in section 45(3)(b).

13. For an excess blood alcohol offence, the essential elements of the offence are that:

    -that the defendant either drove or attempted to put a motor vehicle in motion;

    -that the defendant had present in his or her blood the prescribed concentration of alcohol which:

    oin relation to a person who is not authorised under the Motor Vehicles Act 1959 to drive the vehicle, means any concentration of alcohol in the blood;

    oin relation to a person who is driving a prescribed vehicle, means any concentration of alcohol in the blood;

    oin relation to any other person, means a concentration of .05 grams or more of alcohol in 100 millilitres of blood;

14. The prosecution are obliged to provide evidence to establish the precise concentration of alcohol in the offender’s blood, so as to classify the offence as one where the offender[22] has less than .08 grams in 100 millilitres of blood (category 1), less than .15 grams but not less than .08 grams in 100 millilitres of blood (category 2), or .15 grams or more in 100 millilitres of blood (category 3).  Additionally, evidence will be provided as to whether the offending was a first, second, third or subsequent offence by reference to section 47B (4).

    [22]   R v O’Loughlin; Ex parte Ralphs (1971) 1 SASR 219.

15. For an offence of aggravated due care, aggravated by a blood alcohol concentration, the prosecution are required to prove:

    -that the defendant drove a vehicle without due care or attention or without reasonable consideration for other persons using the road (the basic due care offence);

    -at the time of committing the due care offence there was present in his or her blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood - the circumstances alleged to aggravate the offence.

16. The elements of a separate excess blood alcohol offence may be different in circumstances where:

    -the person is not authorised under the Motor Vehicles Act 1959 to drive the vehicle, and will therefore be liable to conviction for the offence if they possess any concentration of alcohol in the blood;

    -the person is driving a prescribed vehicle, and will therefore be liable to conviction for the offence if they possess any concentration of alcohol in the blood;

    -the person is convicted of a category 1 offence, namely an offence where there is present in the person’s blood a concentration of alcohol of .05 grams or more of alcohol in 100 millilitres of blood, but less than .08 grams in 100 millilitres of blood.

17. The Solicitor-General accepted that further evidence would be provided to the Court in relation to the separate offence, to establish the category of the offending, and whether it is a first offence or otherwise.  It was acknowledged that these are matters relevant to penalty and not essential elements of the offence.

18. The Solicitor-General further accepted that in cases where an aggravated due care offence is aggravated by blood alcohol (meaning that the blood alcohol concentration is .08 grams of alcohol or more in 100 millilitres of blood), and the offender has been charged with a separate excess blood alcohol offence which is a category 2 or 3 offence committed as part of the same course of events, the elements of the offence separately charged are necessarily wholly included within the aggravated due care offence.  In these circumstances, it was correctly acknowledged that a plea of autrefois convict is available in the present case in relation to the excess blood alcohol offence separately charged.

19. For an offence of aggravated due care, aggravated by driving while disqualified, the prosecution are required to prove:

    -that the defendant drove a vehicle without due care or attention or without reasonable consideration for other persons using the road (the basic due care offence);

    -that the defendant was, at the time of the offence, driving a vehicle;

    -that the defendant drove knowing that he or she was disqualified, under the law of this State or another State or Territory of the Commonwealth, from holding or obtaining a driver's licence or that his or her licence was suspended by notice given under this Act.

20. For a charge of driving while disqualified, the prosecution are required to prove:

    -that the defendant drove a motor vehicle on a road;

    -at the time of committing the due care offence he or she drove while his or her licence or learner’s permit was suspended or disqualified, that suspension or disqualification applying either in this State or another State or Territory of the Commonwealth.

21. The aggravated due care offence, aggravated by driving while disqualified, contains the additional element of proving that the defendant drove knowing that his licence was suspended or disqualified. Additional evidence is required to establish the aggravated offence. Nevertheless, the elements of the separate offence are necessarily wholly included in the other offence, and therefore a plea of autrefois convict is available in the present case in relation to the driving while disqualified offence separately charged.

22. Although the remaining circumstances of aggravation do not arise in the present case, as full argument has addressed these matters, it is convenient to express my conclusions.  For an offence of aggravated due care, aggravated by attempting to escape police, the prosecution are required to prove:

    -that the defendant drove a vehicle without due care or attention or without reasonable consideration for other persons using the road (the basic due care offence);

    -that at the time of committing the due care offence the defendant was in the course of attempting to escape pursuit by a police officer.

23. For a charge of dangerous driving to escape police pursuit,[23] the prosecution are required to prove:

    -that the defendant drove intending to escape pursuit by a police officer; or

    -drove causing a police officer to engage in pursuit;

    -in a culpably negligent manner, recklessly or at a speed or in a manner dangerous to the public.

    [23] Section 19AC Criminal Law Consolidation Act, 1935 (SA).

24. The elements of the offences charged are identical, or in the alternative, the charge of dangerous driving to escape police pursuit is wholly included in the aggravated offence.  A plea of autrefois convict would therefore be available in the event that both offences were pleaded on the complaint or information.

25. For charges pursuant to section 45A (excessive speed) and section 47 (driving under the influence) it was accepted by the Solicitor-General that the elements of the offences are wholly included in an aggravated offence, aggravated on account of the commission of those very offences. It follows that a plea of autrefois convict is available in the event that an offender is charged with an aggravated due care offence, aggravated on account of excessive speed or driving under the influence, where the offender has been separately charged with those offences.

26. The Solicitor-General contended that it was sufficient for one circumstance of aggravation to be alleged and stated in the instrument of charge. It was said that if this occurred and if the charge were to be proved, the prosecution could then refer to other matters of aggravation, including for example that the defendant was driving while under suspension. In my view this submission should be rejected. If the prosecution intend to rely on any circumstance of aggravation provided for in section 45(3)(b) each circumstance of aggravation must be stated in the instrument of charge. In this way the evident purpose of the legislation to protect a defendant’s rights to procedural fairness is respected.

27. The present appeal concerns an offence aggravated by the fact that the defendant drove with excess blood alcohol and drove while suspended.  Both have now been pleaded as particulars to count one of the amended complaint.  The Solicitor-General accepted that pleas of autrefois convict were available in relation to those two offences when separately charged.

28. Having regard to the foregoing reasons the conviction on the second and third counts should be set aside.  The sentence and penalties imposed by the Magistrate should be set aside.  The defendant should be re-sentenced on the first count.

    Re-sentencing

29. The Magistrate was presented with material concerning the defendant’s psychiatric state in a short email from Dr O’Brien and a letter from Ms Altmann, a supervisor of a Commonwealth support program.  The defendant had been a participant in the program since March 2007.  The program was to continue for two years and addressed the defendant’s depression, anxiety and alcohol dependence.  The Magistrate received this information and observed:

    So far as your personal circumstances are concerned I accept that you have involved yourself in programs that may assist with your alcohol problem and I commend you in that regard.  However, as I have previously mentioned, both of the offences committed during 2007 were committed after you commenced those programs and that raises some concern about your level of commitment.

30. The Magistrate was provided with an incomplete account of the defendant’s personal antecedents and was unaware of the reasons for the defendant’s depression and anxiety state in the months preceding the present offending.  The further evidence tendered to this Court has allowed a proper understanding of these background circumstances. 

31. Before this Court further evidence was received by consent.  Dr O’Brien provided a full report which contained relevant information not before the Magistrate.  It appears that in the months leading up to the offending behaviour the defendant was suffering from anxiety and depression relating to criminal proceedings.  It was alleged that he had indecently interfered with a young child of his de facto partner.  He denied the allegations.  The trial proceeded in early to mid 2007.  Ultimately, a nolle prosequi was entered.  The criminal process placed great pressure on the defendant and led to his abuse of alcohol while in a depressed state.  The report of Dr O’Brien would suggest that the defendant has excellent rehabilitation prospects.  Ms Altmann’s further report provides confirmation of the defendant’s continued good progress.  The reservations of the Magistrate concerning the defendant’s commitment to rehabilitation are addressed and answered by this further material.

1. As earlier observed, an explanation has now been offered for the defendant’s excessive drinking that led to the present offending.  It was as a result of his depressive anxiety state that he engaged in excessive alcohol consumption.  Although these factors do not provide an excuse for his serious criminal behaviour, they provide an explanation, which, when put together with other evidence suggest that the defendant has good prospects for rehabilitation.  The further evidence includes a letter of Ms Altmann in which she reports on the defendant’s significant progress in overcoming his depression and anxiety and alcohol dependence:

   [The defendant] has made some significant progress in relation to these issues since commencing is [sic] PSP.  He has attended appointments with the Drug and Alcohol counselor [sic] and also has regular appointments with a visiting Psychiatrist to help deal with his personal issues.  He has also made some personal changes to his life to ensure that he can sustain his ability to control the behaviours which have severely affected his life in the past.

   [The defendant] is also on medication that has assisted in him being able to maintain his sense of well being, which in turn has supported his endeavors [sic] with his previous alcohol issues.  It has been evident that [the defendant] is dealing successfully with these issues on day to day basis.

2. When re-sentencing, I have had regard to the circumstances of the offending and to the aggravating circumstances of the defendant’s blood alcohol reading and that he was driving while suspended.  I have had regard to the defendant’s antecedents and in particular his earlier drink driving offending.  I have also had regard to the defendant’s personal antecedents and in particular the steps he has taken toward his rehabilitation and the prospects he has for continued rehabilitation.

3. I have reached the conclusion that this is an appropriate case in respect of the offence of aggravated due care to impose a term of imprisonment.  The term of 3 months as imposed by the Magistrate was an appropriate sentence to be imposed.  A reduction from 4 months to 3 months on account of the plea of guilty and remorse and contrition was appropriate.  However, the defendant has now spent 18 days in custody following his conviction and before bail was granted pending appeal.  The defendant should be given credit for the time spent in custody.  It is appropriate to reduce the term of imprisonment to a period of 10 weeks.  In my view, good reason exists to suspend the sentence.  Good reason is to be found in the personal antecedents of the defendant and in particular, in the evidence about his treatment and his prospects for rehabilitation. 

4. The evidence before the Court suggests that the defendant has been out of employment for some time due to an injury sustained at work.  He appears to be of limited means and in the circumstances I do not consider it is appropriate to impose a fine.  However, I do consider that it is appropriate that he undertake community service which will form part of the terms of the suspended sentence bond. 

5. 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

6. 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.