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…