Parsons v Police - [2008] SASC 339

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
PARSONS v POLICE
[2008] SASC 339
Reasons for Decision of The Honourable Justice Sulan (ex tempore)
20 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 two counts of driving whilst disqualified and one count of aggravated dangerous driving to escape police pursuit - factor of aggravation that appellant disqualified from driving at time of police pursuit - appellant sentenced to 10 months' imprisonment - whether plea of guilty to aggravated dangerous driving to escape police pursuit is a bar to conviction for driving whilst disqualified.
Held: Where the offence of driving whilst disqualified is alleged as an aggravating factor in offence of dangerous driving to escape police pursuit autrefois convict prevents conviction for that offence - conviction for driving whilst disqualified set aside - appellant re-sentenced.
Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Law Consolidation Act 1935 (SA) s 19AC; Motor Vehicles Act 1959 (SA) s 91; Road Traffic Act 1961 s 45, referred to.
Arthur v Police [2008] SASC 213, applied.
R v Cameron (2002) 209 CLR 339; R v Carr (2008) 101 SASR 13; R v Harris; R v Simmonds (1992) 59 SASR 300; R v Shannon (1979) 21 SASR 442; R v Slater (1984) 36 SASR 524; Siganto v The Queen (1998) 194 CLR 656, discussed.

PARSONS v POLICE
[2008] SASC 339
Magistrates Appeal

SULAN J: This is an appeal against sentence. The defendant was charged with three separate sets of offences committed in 2007.
On 18 January 2007 the defendant drove a motor vehicle whilst he was disqualified from holding or obtaining a driver’s licence contrary to s 91 of the Motor Vehicles Act 1959 (SA). The penalty for that offence includes a licence disqualification for two years. He also drove an unregistered and uninsured vehicle.
He pleaded guilty to those offences at the Christies Beach Magistrates Court on 15 June 2007. The matter was transferred to the Adelaide Magistrates Court. On 15 March 2007 the defendant drove a vehicle whilst he was disqualified from holding or obtaining a driver’s licence. He also drove a motor vehicle in a culpably negligent manner or recklessly or at a speed dangerous to the public while attempting to escape police pursuit, contrary to s19AC of the Criminal Law Consolidation Act 1935 (SA).
The maximum penalty for that offence is five years imprisonment or disqualification for a minimum period of two years because the offence was an aggravated offence. That matter was transferred to the Adelaide Magistrates Court. On 3 September…

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.

Continue reading Parsons v Police

Details

AGLC: Parsons v Police [2008] SASC 339
Case: [2008] SASC 339
Decision Date: 20 November 2008

CaseChat Overview and Summary

The appellant in Parsons v Police was convicted in the Magistrates Court for two counts of driving while disqualified and one count of aggravated dangerous driving to escape police pursuit. The appellant, having pleaded guilty, was sentenced to 10 months' imprisonment. The appeal before the court was against both the conviction and the sentence, with the primary legal issue being whether a guilty plea to the aggravated dangerous driving offence could bar a conviction for the offence of driving while disqualified, where the latter was cited as an aggravating factor in the dangerous driving offence.

The court was required to determine the applicability of the principle of autrefois convict, which prevents a person from being convicted of an offence for which they have already been convicted or acquitted, in the context of the appellant's situation. The appellant argued that by pleading guilty to the aggravated dangerous driving offence, which included the fact of being disqualified from driving as an aggravating factor, he could not be convicted separately for the offence of driving while disqualified. The court needed to assess whether this argument was legally sound.

The court found that the principle of autrefois convict applied in this case, and therefore the appellant could not be convicted of driving while disqualified when it had been cited as an aggravating factor in the offence of dangerous driving to escape police pursuit. Consequently, the conviction for driving while disqualified was set aside, and the appellant was re-sentenced for the remaining offences. The court's decision highlighted the importance of ensuring that a defendant is not subjected to multiple convictions for the same underlying factual circumstances.

The final orders of the court involved setting aside the conviction for driving while disqualified and re-sentencing the appellant for the remaining offences. The court's ruling emphasised the need to avoid double jeopardy and ensure that a guilty plea in one offence does not result in a conviction for a separate but related offence when the latter is cited as an aggravating factor in the former.

Orders