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:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Jones v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] SASC 36
Decision Date: 13 March 2019

CaseChat Overview and Summary

In the case of Jones v Police, the appellant, Mr Jones, appealed against his conviction for aggravated driving to escape police pursuit, arguing that the Magistrate should not have accepted his guilty plea. The appellant contended that the circumstances of aggravation were already encompassed by his guilty pleas to other offences, namely driving without consent and driving while suspended. The court had to determine whether the section of the Criminal Law Consolidation Act that criminalises aggravated driving to escape police pursuit creates two separate offences or one offence with the aggravating circumstances being factors that increase the maximum penalty. The court dismissed the appeal against the conviction on count 2 but quashed the convictions on counts 1 and 3. The reasoning behind the decision was that the appellant's guilty pleas on counts 1 and 3 should not have been accepted, and upon the error coming to the attention of the Court, the record must be corrected by setting aside those convictions. The court held that the appellant's argument that the most serious conviction should not stand because he did not have the benefit of a hearing according to law when his guilty pleas were entered was not accepted, and the appeal was dismissed.

The court's reasoning was based on the principle that it is a question of statutory construction as to whether Parliament has created one offence or two offences. The court referred to the High Court decision in Kingswell v The Queen and the Full Court decision in Arthur v Police to support its decision. The court held that the basic offence of driving dangerously to escape police pursuit and the aggravated offence were discrete offences, and the circumstances of aggravation were elements of the aggravated offence. The court found that the appellant could not be separately convicted of the aggravating conduct. Therefore, the court dismissed the appeal against the conviction on count 2 but quashed the convictions on counts 1 and 3. The court's decision highlights the importance of statutory construction in determining the nature of offences and the consequences of guilty pleas.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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); and3driving 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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).