Laidlaw v Police

[2008] SASC 340

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

LAIDLAW v POLICE

[2008] SASC 340

Reasons for Decision of The Honourable Justice Sulan (ex tempore)

24 November 2008

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY - GENERAL PRINCIPLES

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING

Appeal against conviction and sentence - appellant pleaded guilty in Magistrates Court to one count of drive with excess blood alcohol and one count of aggravated dangerous driving to escape police pursuit - factor of aggravation that appellant's blood alcohol was in excess of legal limit at time of police pursuit - appellant sentenced to 15 months' imprisonment - whether plea of guilty to aggravated dangerous driving to escape police pursuit is a bar to conviction for drive with excess blood alcohol - whether Magistrate erred in considering appellant's attempt to escape police pursuit an aggravating feature of the offending.

Held:  Where the offence of drive with excess blood alcohol is also alleged as an aggravating factor in offence of dangerous driving to escape police pursuit autrefois convict prevents conviction for that offence - conviction for drive with excess blood alcohol set aside - appellant resentenced.

Held:  Magistrate erred in considering appellant's attempt to escape police pursuit an aggravating feature of the offending when that is an element of the offence.

Criminal Law Consolidation Act 1935 (SA) s 19AC; Road Traffic Act 1961 (SA) s 40H, s 45, s 46, s 47B, referred to.
Arthur v Police [2008] SASC 213, applied.

LAIDLAW v POLICE
[2008] SASC 340

Magistrates Appeal

1. SULAN J: The defendant was charged on information with five offences all arising out of an incident which occurred on 16 February 2008 at Mount Gambier, in which he drove a motor vehicle in a reckless manner and at a speed which was dangerous to the public whilst being pursued by police officers.

2. He was charged with the following offences: aggravated dangerous driving to escape police pursuit contrary to s 19Ac of the Criminal Law Consolidation Act 1935; dangerous driving contrary to s 46 of the Road Traffic Act 1961 (“RTA”); careless driving contrary to s 45 of the RTA; failing to stop a vehicle contrary to s 40H(5) of the RTA; and, finally, driving whilst having the prescribed concentration of alcohol in his blood contrary to s 47B(1)(a) of the
   RTA.

3. As to the first count, it was alleged that the offence was an aggravated offence. The circumstance of aggravation alleged by the prosecution was that the offence was committed whilst there was present in the defendant’s blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood.

4. On 18 March 2008, the defendant appeared unrepresented in the Mount Gambier Magistrates Court.  He pleaded guilty to the first count, being aggravated dangerous driving to escape police pursuit, and guilty to the fifth count, being driving whilst having a prescribed concentration of alcohol in his blood.  The prosecution accepted these guilty pleas in full satisfaction of the information.

5. The Magistrate ordered a pre-sentence report. The matter was adjourned until 12 May 2008 for submissions on penalty.  On that date, the defendant was represented by counsel.

6. The circumstances of the offending are that, at about 4.50 am on Saturday, 16 February 2008, police observed the defendant driving in a motor vehicle in a southerly direction along Ferrers Street, Mount Gambier, at a speed which police estimated was in excess of 100 kilometres per hour. The defendant’s vehicle stopped at the intersection of Lake Terrace East and Ferrers Street, turned into Lake Terrace East and then accelerated. The police activated the dome lights and sirens and accelerated in an attempt to catch the defendant’s vehicle.

7. The defendant’s vehicle did not slow down and continued to travel at speeds of around 100 kilometres per hour along Lake Terrace East for about one kilometre. The police observed the defendant’s vehicle make a number of left‑hand and right‑hand turns along various roadways. Although the defendant’s vehicle had to slow to turn the corners, it was observed as travelling too quickly and at times was on the incorrect side of the road. The vehicle appeared to collide with a kerb on the incorrect side of the road during one of the manoeuvres.

8. Eventually, the defendant’s vehicle collided with a telegraph pole. There were skid marks visible along the road which indicated that the vehicle had been travelling on the incorrect side of the road for approximately 20 metres prior to colliding with the telephone post. When police approached the vehicle, they observed a female passenger in the front seat. The defendant was seen to get out of the vehicle and run from the police. He was pursued by a police officer, who located him in the rear yard of premises some distance away.

9. The defendant was arrested and taken to the Mount Gambier police station, where he submitted to a breath analysis which gave a reading of .216 grams of alcohol in 210 litres of breath.  The police officer who administered the breath analysis noted that he appeared to be effected by alcohol.

10. Police estimate that they had pursued the defendant for more than two kilometres. The defendant told the police that the reason for his conduct was that he had been drinking and wanted to get away from them.  The defendant’s counsel made submissions. The circumstances of the offending were not in dispute. The defendant’s counsel referred to his personal circumstances.

11. The defendant admitted a number of previous convictions.  He has a number of previous convictions for driving offences. On 6 September 2001, he was convicted of driving an unregistered and uninsured vehicle. On 10 January 2002, he was convicted of driving a motor vehicle without due care. On 7 February 2002, he was convicted of driving whilst under disqualification and driving an unregistered and uninsured vehicle. On 29 April 2003, he was convicted of driving an unregistered and uninsured vehicle. On 16 February 2004, he was convicted of driving at a speed dangerous to the public whilst on provisional licence. On 17 September 2007, he was convicted of moving into the path of a driver, causing a traffic hazard.

12. The defendant is Aboriginal and is now aged 25.  He has participated in community development programs and worked within the forestry agencies in the Parks and Wildlife Program protecting significant Aboriginal sites. His attendance at these programs has been good.  As a result of his work within the program, he has been offered a mechanical apprenticeship at an automotive workshop in Mount Gambier.

13. The defendant’s prospective employer has placed the defendant’s future on hold pending the outcome of the proceedings before the Magistrate. The prospective employer confirmed that the defendant has a strong work ethic and is a conscientious employee. He said that he has supported the defendant as much as practically possible.  The Magistrate was provided with a letter from the defendant’s prospective employer, who indicated that he would employ the defendant if the defendant was available for employment.

14. The pre-sentence report refers to the defendant having decided to go out and have drinks with friends after he had been informed that he had been accepted into a mechanic’s apprenticeship. He did not intend to consume as much alcohol as he allegedly consumed. He told the reporter that he realised at the time that he drove that he was committing an offence. The defendant was anxious about losing the opportunity to complete the mechanical apprenticeship and was concerned about the future.

15. Counsel for the defendant advised the court that the defendant had completed year 8 at high school and later went on to TAFE, where he completed years 9, 10 and 11. He had difficulty in obtaining employment, but he has shown aptitude sufficient for him to obtain an apprenticeship.

16. In sentencing the defendant, the Magistrate referred to the circumstances of the offending and to the personal circumstances of the defendant. He referred to the pre-sentence report and noted that the defendant appears to have insight into his offending and accepts it may result in a term of imprisonment. The Magistrate observed:

    You claim to comprehend how serious the consequences of your offences could have been. It seems you may know now of the consequences but you gave scant regard to the safety of the young girl that was in the car with you and for the rest of this community. The dangerousness of your driving was utterly self apparent. Plainly apparent when eventually you crashed into a Stobie pole out of control.

    I note you are of Aboriginal extraction and I have asked whether there is any significance in your Aboriginality in terms of relevance to the facts of this offending. I am told there is none.

    In conclusion then Mr Laidlaw this is a serious offence. The high speeds, you circled the township of Mount Gambier or drove in a circle. It was a grave risk to the community. There was a demonstrable loss of control at your hands throughout it all you carried a young female passenger. You had a very high blood alcohol concentration. You have prior convictions and for driving in a manner dangerous to the public. This offence is made aggravated by the reason of the fact that you were deliberately seeking to escape the police pursuit and took them on in a high-speed chase. And all this conduct for your own selfish reason that you didn’t want to lose your licence. Furthermore, you knew that you had been drinking significantly. You had no reason to get in the vehicle at all that evening.

17. The Magistrate observed that the offence was aggravated and that the maximum penalty was five years imprisonment.  He further noted that the limit of the penalty that he was able to impose was two years imprisonment. He concluded that the only appropriate penalty in the circumstances was imprisonment and he considered that a starting point of 20 months was the appropriate starting point, which he reduced to 15 months having regard to the defendant’s plea of guilty.

18. The Magistrate referred to general and personal deterrence and observed that the defendant had a previous conviction for driving in a manner dangerous to the public. The Magistrate declined to suspend the sentence and he imposed what he said was a merciful non-parole period of seven months imprisonment. He suspended the defendant from driving a motor vehicle for three years.

19. The grounds of appeal are that the sentence was manifestly excessive, that the learned Magistrate should have suspended the sentence and that the Magistrate erred by accepting a plea of guilty and convicting the defendant on the charge of driving with a blood excess alcohol, as it was penalising the defendant twice.

20. Ms McDonald, who appeared for the respondent, conceded that the Magistrate was in error in accepting a plea of guilty to the count of driving with an excess amount of alcohol in the blood and imposing a sentence of $1000 and a licence disqualification of 18 months.

21. The case of Arthur v Police [2008] SASC 213 – which was delivered on 11 August 2008, after the Magistrate had dealt with the defendant’s case – is applicable to the present case. One of the grounds of appeal in that case was that the appellant, having pleaded guilty to aggravated careless driving, the circumstance of aggravation being that the drove a motor vehicle whilst there was present in his blood a prescribed concentration of alcohol, argued that the Magistrate should have refused to accept the plea on the ground that the offence of aggravated driving a motor vehicle without due care included the offence of driving a motor vehicle with an excessive amount of alcohol in the blood. The appellant argued that, because of this, the offence of driving with a prescribed concentration of alcohol in the blood was subsumed into the offence of aggravated driving without due care.

22. The learned Judge in that case reviewed the authorities and observed that the principal focus of the rule underlying pleas in bar is a rule against repeated prosecution for a single offence.

23. His Honour said at [27]:

    Several offences may be committed in the offence 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 for the rule underlying pleas in bar is a rule against repeated prosecution for a single offence. A plea in bar operates to provide the 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. (footnotes omitted)

24. His Honour made the following observations at [39]:

    The Solicitor-General further accepted that in cases where an aggravated due care offence is aggravated by blood alcohol (meaning the blood concentration is .08 grams of alcohol or more in 100 millilitres of blood), and the offender has been charged with a separate excess blood alcohol offence which is category a 2 or 3 offence committed as part of the same course of events, the elements of the offence separately charged are necessarily wholly included within the aggravated due care offence. In these circumstances it was correctly acknowledged that a plea of autrefois convict is available in the present case in relation to the excess blood alcohol offence separately charged.

25. The comments of the judge are apposite to the circumstances of this case. In this case a plea of autrefois convict is available in relation to the excess blood alcohol offence. Ms McDonald, who appeared for the respondent, conceded this to be the case and agreed the conviction on that count should be set aside.

26. Ms McDonald observed that although it was not a ground relied on directly by the defendant, it appears that the Magistrate erred in considering the offence of aggravated dangerous driving to escape police pursuit was aggravated by reason of the fact that the appellant was deliberately seeking to escape a police pursuit. Ms McDonald conceded that the Magistrate was in error in regarding an element of the offence as an aggravating feature of the defendant’s conduct. She accepted that the Magistrate had fallen into error in that he appeared to have regarded the offending as a more serious example of the kind of offending, merely by having regard to an element of the offence as an aggravating feature.  In this regard, the Magistrate was in error.  The offence might be aggravated by conduct which is beyond the elements of the offence, but the fact that the defendant was being pursued by police cannot, of itself, amount to an aggravating feature of the offending.

27. The Magistrate regarded the offending as at the higher end of the scale of offending of this nature.  His starting point was 20 months’ imprisonment, which is five-sixths of the maximum sentence he could impose.  He was in error in considering that the defendant’s conduct in avoiding the police was an aggravating factor when it was an element of the offence. 

28. I allow the appeal against conviction for the offence of driving whilst having the prescribed concentration of alcohol in the blood.  The conviction is set aside.

29. As to the first count, the offence of aggravated dangerous driving to escape police pursuit, the appeal is allowed and the sentence is set aside.  I am now required to re-sentence the defendant.

30. The defendant was in custody from 12 May 2008 to 5 June 2008, being a period of approximately three and half weeks.

31. I have now received affidavits sworn on 19 November 2008 from Francis Melton Hart, the prospective employer to whom I have earlier referred, and a further affidavit from the defendant.

32. In his affidavit the defendant deposes that, since he was released on bail pending appeal, he has continued to work at the premises of Mr Hart, where he wishes to commence an apprenticeship in due course, if permitted to do so.  He states that he intends to take up the apprenticeship, which is still on offer, as soon as he knows the outcome of this appeal.

33. He deposes that Job Find has made $3000 available to sponsor his apprenticeship with AJ’s Automotive.  The moneys are available as an assistance to Aboriginal people.  The money will be available as soon as he commences the apprenticeship.

34. He is living at his previous address with Mr Kym Mulraney, who is the father of a friend.  Mr Mulraney suffers from ill health, and the defendant has been caring for him for the past six years.

35. Mr Hart deposes that he is the owner of an automotive repair business in Mount Gambier.  Since the defendant has been released on bail, he has been working for five days a week with Mr Hart on a voluntary basis.  He is unable to employ the defendant as an apprentice until he knows the outcome of these proceedings.

36. Mr Hart says that the defendant is an excellent worker who wants to learn and make a future for himself.  He hopes to have the defendant sign his apprenticeship papers and commence on 1 January 2009.

37. It is clear from the material that has been provided to me that the defendant has good prospects of rehabilitation.  His earlier offending occurred when he was much younger.  His counsel submitted that he is now of the age where he realises the seriousness of offending of this nature.  His counsel further submitted that, notwithstanding his earlier convictions, this offending did not reflect any current pattern of conduct or behaviour on the part of the defendant.

38. The offending is serious offending.  I have had regard to all matters personal to the defendant.  The offending must result in a sentence of imprisonment.  Those who drive dangerously and refuse to stop when police seek to have them stop must realise that such conduct is likely to result in a sentence of imprisonment.  In this case the defendant was aware that he was being pursued by the police.  He was aware that he had consumed too much alcohol and he attempted to avoid the police.  He caused danger to himself, to his passenger, to other road users and to the police who were pursuing him.

39. The defendant has previous convictions for driving offences, and he must realise that those who continue to offend in this manner must face the prospect of imprisonment.

40. I have had regard to the fact that the maximum sentence for this offence is five years’ imprisonment.  I note that the prosecution chose to have the matter dealt with in the Magistrates Court, where the maximum penalty is two years’ imprisonment.  I accept that the defendant is truly contrite and that he has reasonable prospects of employment, and a reasonable future ahead of him if he completes his apprenticeship.

41. If it had not been for the defendant’s plea of guilty, I would have sentenced him to 12 months’ imprisonment.  I reduce that sentence to nine months’ imprisonment, having regard to his plea of guilty.  I take into account that he has spent almost one month in custody, and I therefore reduce the sentence to eight months’ imprisonment.  The personal circumstances of the defendant and his prospects of rehabilitation are such that I consider good reason exists to suspend the sentence.  The sentence will be suspended upon the defendant entering into a bond in the sum of $100 to be of good behaviour for two years.  I also order that the defendant be disqualified form holding or obtaining a driver’s licence for a period of three years, to take effect from 12 May 2008.