Jones v Police - [2019] SASC 36

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JONES v POLICE
[2019] SASC 36
Judgment of The Honourable Justice Parker
13 March 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING
This is an appeal against conviction for the offence of aggravated driving dangerously to escape police pursuit, contrary to s 19AC of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
On 17 February 2017, the appellant pleaded guilty to:
1. driving or using a motor vehicle without the consent of the owner, contrary to s 86A of the CLCA (driving without consent offence – count 1);
2. aggravated driving dangerously to escape police pursuit, contrary to s 19AC of the CLCA (aggravated police pursuit offence – count 2); and
3. driving a motor vehicle while suspended, contrary to s 91 of the Motor Vehicles Act 1959 (SA) (driving while suspended offence – count 3).
The appellant appeals only against the decision of the Magistrate to accept his guilty plea for the aggravated police pursuit offence. The circumstances of aggravation for the driving dangerously to escape police pursuit charge were, first, that the appellant was driving without the consent of the owner and, secondly, that his licence was suspended by notice given under the Road Traffic Act 1961 (SA). The appellant assets that the circumstances of aggravation were already encompassed by his guilty pleas to the driving without consent and driving while suspended offences.
Held, per Parker J, dismissing the appeal but setting aside the convictions on counts 1 and 3:
1. Section 19AC of the Criminal Law Consolidation Act creates two discrete offences, being the basic offence and an aggravated offence (at [34]-[40]).
2. The appellant could not be convicted of separate offences, the elements of which were identical to the conduct that comprised the aggravating feature of the police pursuit offence (at [40]).
3. A temporal distinction cannot be drawn between the driving without consent offence and the aggravated police pursuit offence (at [41]-[47]).
4. The Magistrate should not have accepted the appellant’s guilty plea to counts 1 and 3 (at [48]).
5. Section 42(5) of the Magistrates Court Act 1991 (SA) empowers this Court to quash the convictions on counts 1 and 3, although the appellant has not appealed against his conviction on those counts (at [49]-[52]).
Criminal Law Consolidation Act 1935 (SA) ss 5AA, 86A, 19AC; Motor Vehicles Act 1959 (SA) s 91; Road Traffic Act 1961 (SA) s 45; Sentencing Act 2017 (SA) s 53; Magistrates Court Act 1991 (SA) s 42, referred to.
Parsons v Police [2008] SASC 339; Arthur v Police (2008) 101 SASR 529; Kingswell v The Queen (1985) 159 CLR 264; R v Palaga (2001) 80 SASR 19, applied.
R v Hietanen (1989) 51 SASR 510, distinguished.
Pearce v The Queen (1998) 194 CLR 610, considered.

JONES v POLICE
[2019] SASC 36
Magistrates Appeal: Criminal

PARKER J: This is an appeal against conviction for the offence of aggravated driving dangerously to escape police pursuit, contrary to s 19AC of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
For the reasons that follow, I dismiss the appeal against conviction on count 2 but quash the conviction on counts 1 and 3.
Background
On 17 February 2017, the appellant pleaded guilty to and was sentenced for several offences. Only three of the guilty pleas are relevant to this appeal, those being the pleas to the offences of:
1driving or using a motor vehicle without the consent of the owner, contrary to s 86A of the CLCA (driving without consent offence – count 1);
2aggravated driving dangerously to escape police pursuit, contrary to s 19AC of the CLCA (aggravated police pursuit offence – count 2); and
3driving a motor vehicle while suspended, contrary to s 91 of the Motor Vehicles Act 1959 (SA) (driving while suspended offence – count 3).
The Magistrate noted that the driving displayed in the charges of illegal use, aggravated pursuit and drive suspended was particularly serious and came in the face of a significant history of driving offences. The Magistrate adopted a starting point of imprisonment for one month on the driving without consent offence, 10 months for the aggravated police pursuit and one month for the driving while suspended. His Honour reduced the total sentence of 12 months’ imprisonment to eight months and two weeks in recognition of his guilty pleas. The appellant’s licence was also disqualified for a period of two years and three months. The sentence was to commence on 17 December 2016. The sentence of imprisonment has long since been served.
The appellant appeals only against the decision of the Magistrate to accept his guilty plea for the aggravated police pursuit offence. The circumstances of aggravation for the driving dangerously to escape police pursuit charge were, first, that the appellant was driving without the consent of the owner and, secondly, that his licence was suspended by notice given under the Road Traffic Act 1961 (SA). The appellant assets that the circumstances of aggravation were already encompassed by his guilty pleas to the driving without consent and driving while suspended offences.
The factual background in respect of the three relevant offences is as follows. On 29 November 2016 at 4:24 am, a police officer observed the appellant driving on Nineteenth Street in Gawler South. The vehicle had previously been reported as stolen and the appellant’s driver’s licence was suspended.
The police officer activated the flashing lights of his vehicle and stopped the vehicle driven by the appellant. When the officer stepped out of his vehicle, the appellant drove away at speed. The appellant was then engaged in a pursuit by the police officer. He drove south on Adelaide Road and then Main North Road, reaching a speed of approximately 90 km/hr in a 60 km/hr zone. While driving south on Main North Road, the appellant switched off the lights of his vehicle and accelerated further. Following a risk assessment, the police officer ended his pursuit of the appellant. He later admitted to police that he had driven at up to 120 km/hr without lights.
Later, on 15 December 2016, the stolen vehicle was located by police during a search of the residence of the appellant’s sister. The appellant was later located and apprehended by police on 17 December 2016, in the roof cavity of premises in Smithfield Plains.
The appellant’s conviction for the aggravated police pursuit offence is one of three convictions of the appellant for offences with a maximum penalty of at least 5 years’ imprisonment.[1] This is significant because, having been convicted of those three offences, the appellant is taken to be a “serious repeat offender” by the operation of s 53(1) of the Sentencing Act 2017 (SA). The appellant’s status as a “serious repeat offender” therefore turns on the outcome of this appeal against conviction. Were I to set aside the appellant’s conviction for the aggravated police pursuit offence and substitute it for a conviction for the non‑aggravated offence, the appellant would not fall within the scope of the serious repeat offender scheme.
[1] The other two of these three convictions arose from different conduct to that on 29 November 2016.
Extension of Time
The appellant’s notice of appeal was filed on 5 December 2018, approaching two years after the appellant’s guilty plea was accepted on 17 February 2017. Permission is required to appeal more than 21 days after the original decision.
The appellant sought an extension of time on the basis that:
the error … only came to light as a possibility when the Appellant was before the District Court of South Australia on 29 October 2018. Since that time the Appellant’s solicitor with assistance from the office of the Director of Public Prosecutions has sought to clarify the facts alleged to give rise to the error and only now has sufficient information to file in this Court.
The respondent did not oppose the granting of an extension of time.
As the application was unopposed, and having regard to the significant consequences for the appellant if an error has been made, I granted the required extension of time during the course of oral submissions.
Ground of appeal
At the outset of the hearing, the appellant sought leave to amend his ground of appeal so as to cover both of the two aggravating features of the police pursuit offence.[2] The respondent did not oppose this amendment. I therefore grant the appellant leave and will consider the amended ground of appeal.
[2] The appellant’s original ground of appeal only covered the aggravating feature of driving while suspended, and did not extend to the aggravating feature of driving without consent.
The appellant now advances the following single ground of appeal:
[t]he Learned Sentencing Magistrate erred in accepting a plea of guilty to the offence of aggravated driving in a dangerous manner to escape police pursuit when pleas were also accepted to driving whilst disqualified or suspended and driving without consent. The pleas to these offences encompassed the circumstances alleged to aggravate the driving in a manner dangerous to escape police pursuit and thus the Appellant could not be convicted for both, see [Parsons v Police [2008] SASC 339].
The appellant therefore seeks orders that the conviction for aggravated driving dangerously to escape police pursuit be set aside and in lieu he be convicted of the non-aggravated offence.
Respondent’s submissions
The respondent concedes the appeal in part. I will therefore first refer to the respondent’s submissions.
The driving while suspended offence
The respondent concedes that the appellant cannot be convicted of both the aggravated police pursuit offence and the driving while suspended offence when the aggravating circumstance was the latter conduct. Once the appellant pleaded guilty to the aggravated police pursuit offence, there was a plea in bar to the Magistrate accepting a plea to the driving while suspended offence.[3] The appellant’s conviction for the driving while suspended offence should therefore be quashed.
[3] Parsons v Police [2008] SASC 339.
Although the appellant has only appealed against his conviction for the aggravated police pursuit offence, the respondent submits that it would be in the interests of justice for this Court to exercise its power under s 42(5) of the Magistrates Court Act 1991 (SA) to quash the conviction for the driving while suspended offence and leave the conviction for the aggravated police pursuit offence standing.
The respondent supports this submission with the observation that the appellant currently faces sentencing as a serious repeat offender because of his conviction for the aggravated police pursuit offence and two other unrelated offences. Moreover, the appellant has admitted the conduct which constitutes not just one, but two, aggravating elements of the police pursuit offence. To record a non-aggravated offence when the aggravating features are admitted would artificially remove the appellant from being categorised as a serious repeat offender and fail to give effect to the serious repeat offender scheme.
The driving without consent offence
The respondent submits that the appellant can be convicted of both the aggravated police pursuit offence and the driving without consent offence. The respondent submits that the driving without consent offence is not (contrary to the appellant’s submission) wholly subsumed by the aggravated police pursuit offence.
The respondent submits that the aggravated police pursuit offence commenced when the appellant fled at speed in the vehicle after being stopped by the police officer. The preceding conduct, when the police officer observed the appellant driving on Nineteenth Street, forms the basis of the driving without consent offence. That preceding conduct is not included in the aggravated police pursuit offence. The Magistrate drew a distinction in his sentencing remarks between the “taking of the vehicle” and the “pursuit”.
The respondent submits that although a temporal distinction can be drawn between the aggravated police pursuit offence and the driving without consent offence, the same distinction cannot be drawn between the aggravated police pursuit offence and the driving while suspended offence. This is said to be because it was alleged in the information that the driving without consent offence occurred in Gawler South whereas the driving while suspended offence was specifically identified as having occurred on Adelaide Road at Gawler South (being the road on which the appellant drove during the police pursuit, but not before).[4] The conduct covered by the driving while suspended offence was therefore also covered by the aggravated police pursuit offence, whereas the conduct covered by the driving without consent offence was distinct and earlier in time.
[4] The police apprehension report, which the police prosecutor has deposed would have been the basis for his submissions, indicated that the appellant was detected driving the stolen car on Nineteenth St at Gawler South. After fleeing he drove on to Adelaide Road.
The respondent submits that an overlap between the aggravated police pursuit and driving without consent offences does not automatically lead to a conclusion that there is double jeopardy. Several offences can be committed in the course of a single series of events. The respondent submits that the relevant test as to whether or not there is a plea in bar is whether the elements of the offences charged are identical or all of the elements of one offence are wholly included in the other.[5]
[5] Pearce v The Queen (1998) 194 CLR 610 at 618 [24] (McHugh, Hayne and Callinan JJ); Arthur v Police (2008) 101 SASR 529 at 537 [27] (Gray J).
Given that the driving without consent offence began at a time before the aggravated police pursuit offence, the respondent submits that the elements of the offence necessary to prove the former are not included in the latter.
The respondent therefore submits that it was appropriate for the appellant to be convicted of both the driving without consent offence and the aggravated police pursuit offence, in order to fully reflect the totality of his conduct from the time the car was taken up to and including the time of the police pursuit. This allows for the imposition of a punishment that truly reflects the criminality of the appellant’s whole course of conduct.[6] In those circumstances, there is no error of law by the inclusion of driving while suspended as an aggravating feature of the police pursuit offence, and the recording of a conviction for both the driving without consent offence and the aggravated police pursuit offence.
[6] Pearce v The Queen (1998) 194 CLR 610 at 615 [13] (McHugh, Hayne and Callinan JJ)
The respondent notes that where there is overlap between two offences alleged on an information, the Court must take care not to punish twice for the commission of the elements that are common.[7] In this case, when sentencing for the driving without consent offence, the Magistrate was not permitted to take into account the portion of driving undertaken by the appellant during the police pursuit. The Magistrate did not expressly indicate that he disregarded that portion of the driving when sentencing for the driving without consent offence, but did draw a distinction between the timing of the offending alleged in each of the two offences.
[7] Ibid at 623 [40] (McHugh, Hayne and Callinan JJ).
The respondent submits that, if this Court allows the appeal and resentences the appellant, it would be appropriate to note the potential for double punishment. When sentencing for the driving without consent offence, the Court may only take into account the driving which occurred prior to the commencement of the police pursuit.
The respondent submits that this Court should not substitute a conviction for the aggravated police pursuit offence with a conviction for the non-aggravated offence. To do so would result in an entirely artificial situation whereby the two aggravating features of the police pursuit offence are disregarded and the appellant is sentenced only for the basic offence. That would occur even though the aggravating circumstances were admitted when the appellant pleaded guilty to the two offences of driving without consent and driving disqualified.
Appellant’s submissions
The appellant submits that the conviction for the aggravated police pursuit offence should be set aside and substituted for the non-aggravated offence.
The appellant disputes the respondent’s submission that the appellant can be convicted for both the aggravated police pursuit offence and the driving without consent offence on the basis that the two offences can be distinguished in time (see at [21] to [23]). The appellant submits that this is a distinction which was not drawn in the apprehension report, by the prosecutor or by the Magistrate. The appellant further highlights that, in the majority of cases, there will be a period of driving before the commencement of a police pursuit in circumstances which constitute a lesser offence. The appellant submits that it is not appropriate in such cases to draw a temporal distinction.
The appellant further submits that it would require a generous reading of s 42(5) of the Magistrates Court Act 1991 (SA) to quash convictions for offences which are not the subject of an appeal.
The appellant also submits that there is no justification for disposing of this appeal by way of an order that the conviction for the most serious of the three offences should stand. Given that the appellant did not have the benefit of a hearing according to law when his guilty pleas were entered, it cannot be said to be in the interests of justice that he retain the most serious conviction.
Consideration
The initial question in this appeal is whether s 19AC of the CLCA creates two offences or only one offence. In other words, are the aggravating factors simply matters that expose the offending driver to a higher maximum penalty or are there two separate offences consisting of the basic offence and the aggravated offence. If there are two separate offences created by s 19AC then the circumstances of aggravation will be an element of the aggravated offence.
Whether or not a statute that provides for an increased maximum penalty upon a particular factual matter being established has created one offence of two offences was considered by the High Court in Kingswell v The Queen.[8] Gibbs CJ, Wilson and Dawson JJ held that it is a question of statutory construction as to whether Parliament has created one offence or two offences. Doyle CJ noted in R v Palaga that the point made in Kingswell is that “[t]here is at most a presumption that separate offences are created when the proof of certain matters attracts a higher maximum penalty.”[9]
[8] (1985) 159 CLR 264 at 276 (Gibbs CJ, Wilson and Dawson JJ).
[9] (2001) 80 SASR 19 at 37 [79] (Doyle CJ).
The issue was considered by Gray J in Arthur v Police.[10] The appellant in Arthur had been convicted of an aggravated offence of driving without due care. The aggravating circumstances were that his licence was suspended and he drove with a prescribed concentration of alcohol in his blood. Gray J held that the basic offence of driving without due care and the aggravated offence were discrete offences.[11] Thus, the excess blood alcohol and the driving under suspension were elements of the aggravated offence. The appellant could not be separately convicted of the aggravating conduct.
[10] (2008) 101 SASR 529.
[11] Ibid at 536 [22] (Gray J).

Gray J distinguished the judgment of King CJ in R v Hietanen[12] on the basis that the relevant statutory provisions at issue in that case were differently structured from the provisions before his Honour.[13] Gray J found that there was a substantial qualitative difference between the simple and aggravated offences of driving without due care.[14] His Honour also observed that it was unlikely that the Parliament intended the single act of driving to be punishable several times over if more than one of the aggravating circumstances were proved.[15]
[12] (1989) 51 SASR 510.
[13] (2008) 101 SASR 529 at 536 [22] (Gray J)..
[14] Ibid at 537 [26] (Gray J).
[15] Ibid.
Gray J also noted in Arthur that the Solicitor-General accepted that in a case where an aggravated driving without due care offence was aggravated by a blood alcohol offence committed as part of the same course of events, the elements of the drink driving offence were necessarily wholly included within the aggravated due care offence. Thus, the Solicitor-General conceded that the appellant was not properly convicted of the blood alcohol offence because that was the aggravating element in the drive without due care offence.[16]
[16] Ibid at 540 [39] (Gray J).
Facts very similar to the present matter came before Sulan J in Parsons v Police.[17] The appellant had pleaded guilty to an aggravated count of driving dangerously to escape police pursuit contrary to s 19AC of the CLCA. The aggravating circumstance was that he was disqualified from holding a driver’s licence. Sulan J held that the Magistrate should not have accepted a guilty plea for the separate offence of driving while disqualified.[18] Sulan J applied the reasoning of Gray J in Arthur.
[17] [2008] SASC 339.
[18] Ibid at [8] (Sulan J).
I consider that s 19AC of the CLCA creates two discrete offences, being the basic offence and an aggravated offence. The separate reference to a basic offence and an aggravated offence in the subsection that creates the offence indicates that Parliament intended there to be two different offences. The structure of the statute can be distinguished from that considered by King CJ in Hietanen where the offence was created by a certain subsection and the range of penalties was set out in a different subsection. I consider that s 19AC cannot be distinguished from s 45 of the Road Traffic Act which was considered by Gray J in Arthur. Thus, I have arrived at the same conclusion as Sulan J in Parsons. The result is that the aggravating matters alleged in the aggravated police pursuit offence were elements of that offence and not merely considerations relevant to the determination of penalty. Thus, the appellant could not be convicted of separate offences, the elements of which were identical to the conduct that comprised the aggravating feature of the police pursuit offence.
I turn to the contention by the respondent that the appellant was properly convicted of the driving without consent offence although that conduct was also an aggravating circumstance in the police pursuit offence. Despite that contention, the respondent concedes that the driving under suspension offence is wholly subsumed by the aggravated police pursuit offence. The differing approach gives rise to an obvious tension.
The respondent seeks to support the differing approach by suggesting that there is a temporal distinction between the driving without consent and the police pursuit offences, whereas there is said to be no such distinction between the driving while suspended and the police pursuit offences. The respondent seeks to support that distinction on two grounds. First, the respondent contends that the Magistrate drew a distinction in his sentencing remarks between the “taking of the vehicle” and the “pursuit”.
The actual words used by the Magistrate were:
[f]or that conduct in taking the motor vehicle, even though spontaneously, for becoming involved in the pursuit in the manner that you did such that the police had to stop pursuing you because of danger to the community, and the fact that your licence was suspended, for those offences I would have imposed a sentence of one month imprisonment for the illegal use, 10 months imprisonment for the aggravated pursuit and one month imprisonment for the drive suspended, making a total of 12 months’ imprisonment.
The very long sentence used by the Magistrate deals with several different topics. Such an approach is unsurprising in an ex tempore judgment delivered by a busy magistrate. I do not accept that the words adopted by his Honour were so carefully structured as to record a clear finding that a temporal distinction must be drawn so that the appellant engaged in discrete offences of driving without consent of the owner and engaging in a police pursuit.
The second basis for the position adopted by the respondent relies on the fact that count 3 in the information specified that the appellant drove the vehicle on Adelaide Road at Gawler South while his licence was suspended.[19] The only driving relied upon by the prosecution in relation to count 3 was that which occurred on Adelaide Road. That driving occurred during the police chase.
[19] Whereas count 1 specified that the appellant drove without the owner’s consent in Gawler South, without specifying a street.
I have noted that in Arthur the Solicitor-General accepted that, where an aggravated driving without due care offence was aggravated by a blood alcohol offence committed as part of the same course of events, the elements of the drink driving offence were wholly included within the aggravated due care offence. Gray J accepted that the concession was correctly made by the Solicitor-General and I agree.
The offences of driving while suspended and driving without permission of the owner were part of the same course of events as the police pursuit. The nature of the four types of aggravating circumstances identified in s 5AA(1b) of the CLCA are such that the aggravating circumstance must almost always have occurred prior to the commencement of the police pursuit. Thus, prior to the commencement of the pursuit, the defendant will have been driving a vehicle that is stolen or being used without the consent of the owner, or driving under a disqualification or suspension, or driving with a prescribed content of alcohol or under the influence of alcohol or a drug. Apart from the considerations to which I have already referred, a further flaw in the respondent’s argument is that count 2 did not refer to Adelaide Road but simply alleged that the pursuit had occurred at Gawler South. This suggests that the drafter of the complaint was not seeking to draw the temporal distinctions suggested by counsel for the respondent.
For these reasons I find that the Magistrate should not have accepted the guilty plea to count 1 and count 3. The different conduct alleged in those counts was wholly subsumed within count 2 because that conduct was an aggravating feature of count 2.
I turn to the appellant’s contention that the Court should not disturb the convictions on count 1 and 3 but should substitute a finding that count 2 was not an aggravated offence.
In Arthur, Gray J explained the operation of the autrefois convict doctrine in circumstances similar to the present matter in the following terms:[20]
[s]everal 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. 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.
[20] (2008) 101 SASR 529 at 537 [27] (Gray J).
In the present case, as all of the elements of the offences alleged in count 1 and in count 3 were wholly included in count 2, the appellant could not be convicted on counts 1 or 3. However, his guilty plea acknowledged that he had engaged in the aggravating conduct alleged in count 2. I accept the correctness of the respondent’s submission that it would be an artificial contrivance to disregard the aggravating features of the police pursuit offence so that the appellant is sentenced only for the basic offence. Moreover, I consider that it would be contrary to the interests of justice to adopt such an approach for the purpose of ensuring that the appellant is not classified as a serious repeat offender when he is sentenced for other matters currently before the District Court.
I do not accept the correctness of the appellant’s submission that the Court should not set aside his convictions on counts 1 and 3 when he has not appealed against those findings. His guilty pleas on counts 1 and 3 should not have been accepted. Upon that error coming to the attention of this Court, the record must be corrected by setting aside those convictions. Section 42(5) of the Magistrates Court Act empowers this Court to quash the convictions on counts 1 and 3. The appeal against conviction on count 2 must be dismissed.
Conclusion
For these reasons I dismiss the appeal. I set aside the convictions on count 1 and on count 3 on the basis of a plea in bar.