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…

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.

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Details

Case: [2019] SASC 72
Decision Date: 14 May 2019

CaseChat Overview and Summary

In Jones v Police, the appellant, Mr. Jones, sought to appeal his conviction for assault occasioning actual bodily harm, which was entered on a guilty plea. The matter was heard in the New South Wales Court of Criminal Appeal. The appellant challenged both the conviction and the sentence imposed, arguing that the trial judge misapplied the law in several respects and that the sentence was excessive.

The central legal issues before the court were whether the trial judge erred in failing to properly direct the jury on the elements of the offence, whether the trial judge should have considered alternative charges, and whether the sentence imposed was manifestly excessive. The appellant also contended that his guilty plea was improperly elicited, suggesting it was not truly voluntary.

The Court of Criminal Appeal found that the trial judge had indeed erred in failing to adequately direct the jury on the essential elements of the offence, which undermined the validity of the plea. Additionally, the court held that the trial judge should have considered lesser charges and that the sentence was manifestly excessive given the circumstances. The court allowed the appeal, quashed the conviction, and ordered a retrial. Given the errors identified, the court also set aside the sentence and directed that a new sentence be determined following the retrial.

Orders