Jones v Police (No 2) - [2019] SASC 72

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JONES v POLICE (NO 2)
[2019] SASC 72
Judgment of The Honourable Justice Parker
14 May 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA
CRIMINAL LAW - SENTENCE
The appellant appealed against his conviction for the offence of aggravated driving dangerously to escape police pursuit contrary. The appeal against conviction for that offence was dismissed, but the appellant’s convictions on two other counts were quashed. Subsequently, parties jointly sought that, in light of these orders, the appellant be resentenced on all offences for which he pleaded guilty and was sentenced for on 17 February 2017.
Held, per Parker J, resentencing the appellant on nine counts:
1. Because the convictions on two of the ten counts for which the appellant pleaded guilty to and was sentenced for on 17 February 2017 were quashed, it is necessary that he be resentenced on all counts (at [7]).
2. All of the sentences were well within the range of sentences reasonably available for the particular offences and no other error is apparent (at [12]).
Criminal Law Consolidation Act 1935 (SA) ss 19AC, 86A; Motor Vehicles Act 1959 (SA) s 91; Sentencing Act 2017 (SA) s 53, referred to.
Jones v Police [2019] SASC 36, considered.

JONES v POLICE (NO 2)
[2019] SASC 72
Magistrates Appeal: Criminal

PARKER J: The appellant appealed against his conviction for the offence of aggravated driving dangerously to escape police pursuit contrary to s 19AC of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). For the reasons I published on 13 March 2019, I dismissed the appeal against conviction for that offence but quashed his convictions on two other counts.[1] The circumstances of the offending are set out in detail in my earlier judgment and I will only repeat that material to the extent necessary.
[1] Jones v Police [2019] SASC 36.
The appellant had pleaded guilty and was sentenced for several offences on 17 February 2017. However, only three of those guilty pleas were directly relevant to the appeal. Those offences occurred on 29 November 2016 and were:
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 appellant only appealed against the decision of the Magistrate to accept his guilty plea for the aggravated police pursuit offence. The circumstances of aggravation were, first, the appellant was driving the vehicle without the consent of the owner and, secondly, his licence had been suspended. He asserted in the appeal that the circumstances of aggravation were already encompassed by his guilty pleas to the separate offences of driving without consent and driving while suspended.
The appellant sought an order 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. He did not challenge his conviction for the driving without consent and driving while suspended offences.
At the time of the appeal, the appellant was being prosecuted for other offences in the District Court. If his conviction for the aggravated police pursuit offence was not set aside on appeal he would be a “serious repeat offender” under s 53(1) of the Sentencing Act 2017 (SA). If he is properly classified as a serious repeat offender that may have serious consequences when he is sentenced by the District Court.
For the reasons stated in my earlier judgment, I dismissed the appeal against conviction of the offence of aggravated driving dangerously to escape police pursuit. Although the appellant had not appealed against his conviction on the driving without consent and driving while suspended offences, I nevertheless quashed his convictions on those counts 1 and 3. I did so on the basis that his guilty plea to those two counts should not have been accepted by the Magistrates Court. That was because the alleged conduct was the same conduct that was the aggravating feature of the police pursuit offence.
Following the delivery of my earlier judgment, the parties have jointly pointed out that the appellant had pleaded guilty to a number of other offences on 17 February 2017 that were not referred to in his appeal. However, because I had quashed his convictions on the two counts that I have mentioned, it was necessary that he be resentenced on all counts. I accept that joint submission and now proceed to resentence the appellant for those offences that were the subject of his guilty plea on 17 February 2017.
The offences for which the appellant was sentenced on 17 February 2017 (in addition to the three counts mentioned at paragraph [2] above) were:
1Use or have possession of a prohibited weapon on 24 February 2015. The appellant was convicted without penalty.
2Breach of home detention bail on 15 April 2016 when the appellant was located in a hotel. After noting the appellant’s prior offences for breaching bail, the Magistrate indicated that he would have imposed a sentence of one month imprisonment, but he reduced that to three weeks so as to give credit for his guilty plea.
3Breach of bail on 20 June 2016 by failing to report. The appellant was convicted without further penalty.
4Speeding on 18 October 2016. The appellant was convicted and fined $300.
5Driving while disqualified on 18 October 2016. After noting that the appellant had prior convictions for this type of offending, the Magistrate indicated that he would have imposed a sentence of imprisonment for four months, but his Honour reduced that to two months and 24 days in recognition of the appellant’s guilty plea.
6The appellant was convicted of driving a motor vehicle with methamphetamine in his oral fluid or blood on 18 October 2016. He was convicted and fined $900 and his licence disqualified for three months.
7Breach of bail on 18 October 2016. That offence involved the removal of the home detention electronic monitoring transmitter and going absent without leave. The appellant was not detected for what the Magistrate described as “some time”. His Honour indicated that but for the plea of guilty he would have imposed a sentence of imprisonment for three months, but reduced that to imprisonment to two months and three days in recognition of the guilty plea.
The appellant also received sentences totalling eight months and two weeks in recognition of his guilty pleas for the three offences on 29 November 2016 referred to in paragraph [2] above. But for those pleas the Magistrate indicated that he would have imposed a sentence of 10 months for the aggravated police pursuit offence and one month for each of the driving while suspended and the driving without consent offences. His Honour also suspended the appellant’s licence for two years upon his conviction for these three counts.
The total head sentence imposed by the Magistrate for all offences was imprisonment for 12 months, five weeks and 27 days. His Honour also fixed a non-parole period of eight months commencing from 17 December 2016. In addition to the sentence of imprisonment, the appellant was also required to pay a total fine of $1,200 and his licence was disqualified for two years and three months.
The effect of my earlier judgment is that the appellant should not have been convicted for the offences of driving without consent and driving while suspended which occurred on 29 November 2016. The convictions on the other seven counts for which he was sentenced on 17 February 2017 remain undisturbed, as does the conviction for the aggravated police pursuit offence.
There has been no submission put to the Court that there was any error made by the Magistrate in the sentences he imposed on 17 February 2017. The grounds of appeal have been confined solely to a challenge to the conviction for the aggravated offence of driving dangerously to escape police pursuit. Nevertheless, because I must resentence the appellant on all counts, I have carefully considered the sentencing remarks made by his Honour. I am satisfied that all of the sentences were well within the range of sentences reasonably available for the particular offences and no other error is apparent. I therefore impose sentences identical to those fixed by the Magistrate in respect of the seven offences listed in paragraph [8] above.
It is also necessary to resentence the appellant on the aggravated police pursuit offence in light of the fact that the appellant’s convictions on the counts of driving without consent and driving while suspended have been set aside. The starting point adopted by the Magistrate for those two offences was imprisonment for one month on each count. It was apparent that the Magistrate granted a discount of 30% in recognition of the early guilty plea. The original sentence for the three offences committed on 29 November 2016 was eight months and two weeks. That sentence incorporated a discount of 30%. I consider that the starting point of 10 months adopted by the Magistrate for the aggravated police pursuit offence was appropriate. I also consider it appropriate to reduce that sentence by 30% to imprisonment for seven months.
The end result is that, on the remaining eight counts for which the appellant pleaded guilty on 17 February 2017, I impose essentially identical sentences to those imposed by the Magistrate. Due to having quashed two convictions, the total head sentence imposed on the appellant for all offences he pleaded guilty to on 17 February 2017 is reduced from 12 months, five weeks and 27 days to 11 months, three weeks and 27 days. Because that sentence exceeds 12 months, it is necessary to fix a non‑parole period. I fix a non-parole period of seven months commencing from 17 December 2016. The fine of $900 imposed upon conviction for the charge of driving with methamphetamine in the appellant’s system stands, as does the fine of $300 imposed for speeding, and also the total licence disqualification of two years and three months.
I will make orders to give effect to the sentence as varied above.