MCTERNAN v Police - [2009] SASC 78

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MCTERNAN v POLICE
[2009] SASC 78
Reasons for Decision of The Honourable Justice Kelly
27 March 2009
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PLEAS - SPECIAL PLEAS - PLEA OF AUTREFOIS ACQUIT OR AUTREFOIS CONVICT - WHETHER SUFFICIENT BAR - TEST
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING UNDER INFLUENCE OF INTOXICATING LIQUOR OR A DRUG - SENTENCE AND PENALTY
Appeal against sentence and conviction - appellant pleaded guilty to one count of driving whilst under the influence of alcohol and one count of aggravated driving without due care - on the first count appellant was sentenced to four weeks imprisonment and licence disqualification for eighteen months - on the second count he was sentenced to two months imprisonment and a licence disqualification of six months - sentences of imprisonment suspended upon the appellant entering into a bond to be of good behaviour for three years - whether the two offences were duplicitous - whether the magistrate erred in failing to take into account the two month licence disqualification appellant had already served.
Held: appeal against conviction dismissed - appeal against sentence allowed - plea of autrefois convict is not available on the complaint - the offences of driving whilst under the influence and aggravated driving without due care are not duplicitous - sentences of imprisonment and length of licence disqualifications were manifestly excessive - appellant sentenced afresh on both counts to a fine of $1800 and a total period of sixteen months licence disqualification.
Road Traffic Act 1961 s 45, s 47(1)(a), s 47B, s 47IAA(9), referred to.
Arthur v Police (2008) 101 SASR 529, distinguished.
R v O'Loughlin; Ex Parte Ralphs (1971) 1 SASR 219, discussed.
Carr v Western Australia (2007) 232 CLR 138, considered.

MCTERNAN v POLICE
[2009] SASC 78
Magistrates Appeal
Kelly J

The appellant appealed against a conviction and sentence imposed in the Mount Gambier Magistrates Court on 7 May 2008.
The appellant originally filed a notice of appeal on 15 May 2008 appealing against the sentence only. At the hearing of the appeal the appellant sought permission to amend the notice of appeal in order to incorporate an appeal against conviction as well.
On 7 May 2008 the appellant was convicted on his plea of guilty to one count of driving a motor vehicle whilst under the influence of alcohol contrary to Section 47(1)(a) of the Road Traffic Act 1961 (‘the Act’), one count of an aggravated offence of driving a motor vehicle without due care contrary to Section 45 of the Act and one count of failing to give his name and address to another driver after being involved in a motor vehicle crash contrary to Rule 287 of the Australian Road Rules. Another count of driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol contrary to Section 47B (1)(a) of the Act was withdrawn.
For the offence of driving under the influence of alcohol the appellant was sentenced to four weeks imprisonment and disqualified from holding or obtaining a driver’s licence for a period of eighteen months. For the aggravated offence of driving without due care the appellant was sentenced to two months imprisonment and disqualified from holding or obtaining a driver’s licence for the statutory mandatory minimum period of six months. For the offence of failing to stop and to give his name and address after a motor vehicle crash, the appellant was convicted and fined the sum of $400.
The learned magistrate ordered that both sentences of imprisonment be served concurrently and that the respective licence disqualification periods would also be concurrent. The sentences of imprisonment were suspended upon the appellant agreeing to enter into a bond to be of good behaviour for a period of three years.
On 16 January 2009 I made orders dismissing the appeal against conviction and allowing the appeal against sentence. On that date I ordered that both sentences of imprisonment imposed by the magistrate be set aside. On the first count of driving under the influence of alcohol the appellant was fined the sum of $800 and the order of the magistrate on 7 May 2008 disqualifying the appellant from holding or obtaining a driver’s licence, was amended to reduce the period of disqualification from eighteen months to sixteen months. In relation to the offence of aggravated driving without due care the appellant was fined the sum of $1,000 and the order of the magistrate made on 7 May 2008 disqualifying the appellant from holding or obtaining a driver’s licence, was increased from six months to twelve months. I ordered that both periods of disqualification were to be served concurrently from 7 May 2008. There is no appeal in relation to the offence of failing to give name and address and the penalty of $400 imposed by the magistrate remains.
I indicated at the hearing that I would deliver my reasons at a later date. Following are my reasons for making those orders.
Upon application of the appellant, the hearing of this appeal was originally deferred awaiting the decision in Arthur v Police (2008) 101 SASR 529. Consequent on the handing down of that decision the appellant sought and was granted permission to amend his notice of appeal to include a ground that the offence of driving under the influence of alcohol (count 1) and the offence of aggravated driving without due care (count 3), were duplicitous. The appellant contended that a plea in bar of autrefois convict was available to him and the prosecution ought to have been called upon to elect whether it wished to proceed with either count 1 or count 3, but not both.
The appeal against sentence was primarily based on the submission that the imposition of terms of imprisonment, whether in relation to count 1 or count 3, was excessive and the length of the disqualification imposed was also manifestly excessive. It was also contended that the sentencing magistrate had erred by failing to observe that the appellant had already served a period of approximately two months disqualification by virtue of the mandatory disqualification provisions under s 47IAA(9) of the Act. The appellant submitted that the combination of these circumstances was such that the overall sentence imposed by the magistrate was unduly harsh and disproportionate to the appellant’s offending.
Background
The appellant was originally charged with four offences under the Act: the offence of driving under the influence, exceeding the prescribed concentration of alcohol, aggravated due care and failing to comply with the duties of a driver after a crash.
The charges arose out of an episode of driving behaviour on 9 March 2008 on the Riddoch Highway in the South East. The appellant had earlier attended a rodeo at Keith and was driving home at about 2.20 am in the morning. There were other vehicles on the highway, in particular one that was travelling at the speed limit of 110 kilometres per hour. The appellant overtook that vehicle at a speed of approximately 130 kilometres per hour and in doing so collided with the side of the vehicle. Despite having sideswiped the vehicle and being aware of the collision, the appellant chose to drive on and accelerated at speeds of up to 150 kilometres per hour.
The police were called and the appellant was eventually stopped and charged by the police with the four offences. At the time of his apprehension by the police he swayed backwards and staggered into the side of the utility he had been driving. The police formed the opinion that he was plainly under the influence of alcohol. Even though the police were aware at that time, that the appellant was deaf and had a speech problem, the arresting police officer formed the view that his speech was more slurred than usual and more difficult to understand. A breath analysis test conducted by the police revealed a blood alcohol concentration of 0.183 grams per 100 millilitres of blood.
At the date of the offending the appellant was 23 years old and had no relevant prior convictions. A report from a psychologist of Health Services Australia was tendered before the magistrate. That report confirmed that the appellant suffered a severe intellectual disability and that he is virtually unemployable. It also confirmed that in addition to his severe intellectual disability he had some social and behavioural difficulties which further impacted on his ability to hold employment in any capacity. The magistrate accepted that the appellant’s disability impacted upon his decision to drive. However, he took the view that the appellant’s offending was very serious as it represented a grave risk to the safety of other people on the road.
When sentencing the appellant for the offence of driving whilst under the influence of alcohol, the magistrate expressly excluded from consideration, the driving which caused the collision with the other vehicle on the highway. He stated that he would take that conduct into account when dealing with the offence of aggravated due care.
Nevertheless the magistrate took the view that both the offence of driving under the influence and the offence of aggravated due care were sufficiently serious to warrant terms of imprisonment. The magistrate expressly took into account the element of duplication with respect to the licence disqualification he imposed for both offences. In taking that into account he imposed a licence disqualification for a period of eighteen months for the offence of driving under the influence of alcohol. For the offence of aggravated due care he imposed the minimum period of disqualification of six months and made the periods of disqualification concurrent. The magistrate appears to have made a minor error in relation to the calculation of the period of licence disqualification by failing to take into account the period of just over two months already served by the appellant as a consequence of a notice issued under the provisions of s 47IAA of the Act. The police withdrew count 2 which was the charge of exceeding the prescribed concentration of alcohol contrary to s 47B of the Act.
Appeal against conviction
The appellant submits that notwithstanding the withdrawal of count 2 (the PCA offence), the plea in bar of autrefois convict arises in respect of the convictions recorded on the offence of driving under the influence of alcohol and the offence of aggravated driving without due care. Those counts were originally framed as follows:
Count 1 On the 9^th day of March, 2008 at Willalooka in the said State drove a vehicle namely a Ford utility (SA) VOB-034 on a road namely Riddoch Highway whilst he was so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the said vehicle
Section 47 (1)(a) of the Road Traffic Act, 1961.
This is a summary offence.
Count 3 On the 9^th day of March, 2008 at Willalooka in the said State drove a vehicle namely a Ford utility (SA) VOB-034 on a road namely Riddoch Highway without due care.
Section 45 of the Road Traffic Act, 1961.
This is an aggravated offence.
It is further alleged that the circumstances of aggravation are that at the time of the offence, the vehicle was driven in contravention of section 47 of the Road Traffic Act 1961 and there was present in his blood a concentration of 0.080 grams or more of alcohol in 100 millilitres of blood.
This is a summary offence.
On appeal the respondent sought permission to amend count 3 by deleting, as a circumstance of aggravation, the fact that the vehicle was driven in contravention of s 47 of the Act. Thus, the aggravating circumstance relied on by the prosecution in respect of count 3 was the circumstance that there was present in the appellant’s blood a concentration of 0.08 grams or more of alcohol.
Notwithstanding that permission was granted to amend the complaint in those terms, the appellant maintained the submission that a conviction in relation to both counts 1 and 3 represented punishment for the same offence.
The appellant’s argument was that notwithstanding the fact that the magistrate explicitly excluded from consideration the circumstance of the collision in convicting the appellant of the count of driving under the influence of alcohol, the facts and circumstances constituting the gist of both the driving under the influence offence and the aggravated due care offence, were the same.
In these circumstances the appellant contended that he was entitled to rely on the plea in bar of autrefois convict. It was argued that in proceeding on both counts 1 and 3 the prosecution was effectively seeking two penal sanctions for almost identical conduct. In making this submission the appellant relied on Arthur v Police.
In Arthur Gray J considered issues of duplicity and a plea in bar of autrefois convict where an offender had pleaded guilty to offences of driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol contrary to s 47B of the Act, an offence of aggravated due care, (aggravated by the fact that the offence was committed while there was present in the offender’s blood a concentration of 0.08 grams or more of alcohol contrary to s 45 of the Act) and an offence of driving a motor vehicle while his licence was suspended contrary to section 70E(5) of the Criminal Law (Sentencing) Act 1988.
After an extensive analysis of the relevant authorities Gray J concluded in Arthur that s 45 of the Act created multiple offences. At [25]-[26] he said:
However, there are difficulties in applying this approach where the circumstances of aggravation in themselves constitute separate offences. If one or more of the circumstances is alleged it may not be possible to know, at least after a general jury verdict, whether one or more of the circumstances had been proved. On the other hand if there is a conviction for the aggravated offence it probably follows that a plea in the nature of autrefois acquit or convict is available even if it may not be known which particular plea in bar is applicable.
There is reason to treat careless driving causing death or serious injury as a separate offence. There is a substantial qualitative difference between careless driving causing death or injury on the one hand and careless driving accompanied by any of the circumstances described in s 45(3)(b). To adopt the approach of Bray CJ in Romeyko, careless driving causing death is not merely a different way of committing the offence of careless driving in the accompanying culpable circumstances set out in s 45(3)(b). Recognising as separate offences, careless driving, careless driving causing death or serious injury, and careless driving in culpable circumstances provides consistency with the group of offences of reckless driving, reckless driving causing death or serious injury and aggravated reckless driving causing death. Further, it is to be observed that it is unlikely that Parliament intended a single act of driving to be punishable several times over if more than one of the aggravating circumstances in s 45(3)(b) were proved.
Footnotes omitted
His Honour went on to conclude on the facts of the matter before him that a plea of autrefois convict was available to the offender on the charges contained on that particular complaint.
Although it was not necessary to his conclusion in that matter, in deference to the arguments before him his Honour also expressed the view obiter that a plea of autrefois convict would be available in the event that an offender is charged with an aggravated due care offence aggravated on account of excessive speed, or driving under the influence, or driving whilst disqualified, or driving while there was present in his blood a concentration of 0.08 grams or more of alcohol, where the offender has been separately charged with any or all of those offences.
It appears from the judgment that the respondent in Arthur conceded that the elements of each of those separate offences are necessarily wholly included in the offence of aggravated due care where that particular offence is pleaded as an aggravating circumstance. Accordingly a plea of autrefois convict would be available in relation to any of the offences separately charged on such a complaint or information.
In this case notwithstanding the amendment to count 3 of the complaint by deleting as a circumstance of aggravation the allegation that there was present in the appellant’s blood a concentration of 0.08 or more of alcohol, the appellant contended that nevertheless the elements of the aggravated due care offence were wholly incorporated in the elements of count 1, being the offence of driving under the influence of alcohol.
In my view, this is not a case where the elements of the offence of driving under the influence of alcohol are wholly incorporated in the elements of the aggravated due care offence charged. To conclude that they were, would be tantamount to finding that the charge of driving under the influence contrary to s 47 of the Act and the charge of driving with a prescribed concentration of alcohol contrary to s 47B of the Act, have, on the facts of this case, merged.
Whilst it may be accepted that the two offences arose from the same set of facts and from a single episode of driving, it is necessary to examine more closely the elements of each offence to determine whether they are the same or whether the elements of one are wholly included within the other.
The elements of an offence of driving under the influence contrary to s 47 of the Act are:
·that the appellant either drove or attempted to put a motor vehicle in motion,
·that whilst he did so, he was so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle.
The elements of the offence of driving without due care aggravated by the fact that the appellant had a blood alcohol of 0.08 grams or more contrary to s 45(3)(b)(iii) of the Act are:
·that the appellant drove a motor vehicle without due care or attention or without reasonable consideration for other persons using the road,
·at the time of committing the offence of due care there was present in his blood a concentration of 0.08 grams or more of alcohol in 100 millilitres of blood.
It can be seen that the elements of the offence nominated as the aggravated circumstance for the due care offence are not present in either of the offences for which the appellant was convicted. In my view, applying the same reasoning, a plea of autrefois convict is not available to the appellant on the amended complaint. It is readily apparent that one can drive a motor vehicle at a level of 0.08 or more and yet still not drive the motor vehicle contrary to s 47. The two offences are not the same and a conviction on one is not necessarily a bar to conviction on the other.
In R v O’Loughlin; Ex parte Ralphs (1971) 1 SASR 219 the court found on the facts of that case that there was sufficient identity between the acts or omissions constituting the two offences to make it improper for the defendant to have been convicted of the second charge (the PCA offence), as well as the first (the DUI offence) and that the second charge should have been dismissed. In making that finding the court was influenced by the magistrate’s reliance on the blood alcohol reading of the defendant in concluding that he had driven under the influence of alcohol.

In the circumstance of this case there was an abundance of evidence in addition to the blood alcohol reading suggesting that the appellant was driving under the influence of alcohol. His vehicle was travelling at about 130 kilometres per hour. In addition, when the appellant’s vehicle was finally stopped by police he was observed to be staggering backwards and forwards, unable to maintain a standing position and he fell over to the rear of the vehicle. The police could smell a strong odour of alcohol about him and his speech was slurred more than usual. In making that observation the police officer took into account that the appellant normally spoke with a speech impediment.
In these circumstances I consider there was nothing unfair or unjust in convicting the appellant for the aggravated offence of driving without due care on the basis of the blood alcohol level at the relevant time and also convicting him of the offence of driving under the influence.
Moreover the magistrate was careful when sentencing the appellant for the offence of driving under the influence of alcohol, to exclude from his consideration the collision the appellant had with the vehicle.
On the view which I have taken of the facts in this case, it is not, strictly speaking, necessary to resolve the issue of whether s 45(3)(b) creates one or more offences. It has been suggested that if s 45(3)(b) creates only one offence, then the consequence of that will be that the common law rule against double punishment is to that extent, modified.
I do not consider that to be necessarily so. The careless driving caught by s 45 is made more serious because of the particular aggravating circumstance or circumstances alleged. A penalty imposed in the higher range is still a penalty for the careless driving and not, as in this case, for the offence of driving a motor vehicle while there is present in the blood the prescribed concentration of alcohol.
In my view the amendments to s 45 of the Act show a clear Parliamentary intent to escalate penalties for careless driving where that driving is accompanied by one or more certain circumstances, whether those circumstances give rise to a separate offence or not.
In reaching this conclusion I have also been influenced by the consideration that to conclude otherwise would have the effect of significantly undermining the legislative scheme in the Act which provides for escalating penalties and other sanctions for second and subsequent offenders convicted of certain drink and drug driving offences.
S 47 and s 47B both provide for escalating penalties depending on whether the offence is a category one, two or three offence and depending on whether the person has been convicted on a second or subsequent occasion. Section 47J is a section empowering the court in the case of a person who has been previously convicted of a prescribed offence to submit to an examination to determine whether that person suffers from alcoholism or addiction to other drugs or both. Certain consequences follow depending on the assessment. A prescribed offence for the purpose of that section includes offences against s 47(1) and s 47B(1) and in particular second and subsequent offences. Section 47J empowers the court to disqualify a person from holding or obtaining a driver’s licence and a person may only be issued with a new licence subject to such conditions as the court thinks desirable to protect the safety of the public.
If every time an offender who commits the offence of careless driving in circumstances where the driving is aggravated by the commission of one or more of the offences referred to in s 45(3)(b) produced a result that the offender could plead autrefois convict in relation to any or all of the circumstances set out in s 45(3)(b) if a separate offence was charged, then the integrity and efficacy of the statutory scheme referred to above would be considerably undermined.
I cannot think that Parliament by its amendments to s 45 of the Act intended such a result. Moreover, such an interpretation does not sit easily with the provisions of either s 45(3)(b)(iv) or s 45(4) of the Act. As Gleeson CJ observed in Carr v Western Australia (2007) 232 CLR 138 at [143] legislation rarely pursues a single purpose at all costs. I consider the same observation could be made about the amendments to s 45 of the Act particularly in the light of the statutory scheme set out in Part 3 of the Act.
For these reasons I am yet to be persuaded that s 45(3)(b) of the Act creates separate offences in respect of each of the aggravating circumstances referred to therein. Nevertheless as I acknowledged earlier on the view of the facts which I have taken, it is not necessary to resolve that issue in this case.
For the reasons earlier expressed I concluded that the two counts were not duplicitous and accordingly the appeal against conviction was dismissed.
The Appeal Against Sentence
The appellant is twenty three years old. He has no prior convictions. There is no dispute that he suffers from an intellectual disability for which he has been in receipt of a disability support pension for some years. He also suffers from a hearing disability and a speech impediment. He made a decision, albeit a bad decision, to leave the rodeo at Keith and drive home after being victimised by another group at the rodeo. His explanation for continuing to drive along the highway even after colliding with the other vehicle because he was still frightened, was credible in the light of the undisputed disabilities suffered by the appellant.
In all of the circumstances I consider that a sentence of imprisonment for a first offender in these particular circumstances was manifestly excessive.
There is no doubt that the appellant’s decision to drive home in his condition created an actual and potential risk to other road users. The person whose car he sideswiped was very fortunate that no more serious damage was caused. Therefore it was appropriate that a substantial period of licence disqualification should be imposed to act as an effective deterrent to this young offender.
It was for these reasons that I set aside the order of the magistrate in relation to the order for imprisonment and substituted fines and disqualification periods as follows. The orders made were:
1. Appeal against conviction in relation to counts 1 and 3 is dismissed.
2. appeal against sentence is allowed.
3.The order of the magistrate in relation to the suspended sentence of imprisonment upon the appellant entering into a bond is set aside.
4.On count 1, the appellant is fined $800. The order of the magistrate made on 7 May 2008 for licence disqualification is amended to reduce the disqualification period to 16 months.
5.On count 3, the appellant is fined $1,000. The order of the magistrate for licence disqualification is increased to 12 months. The disqualification is to be served concurrently with the period of disqualification to be served in relation to count 1.
6.For the offence of failing to give name and address, the appellant is fined $400.
7.Total period of disqualification is therefore 16 months from the date of magistrate’s order.