R v REES - [2023] SADC 49

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)

R v REES
[2023] SADC 49
Judgment of her Honour Judge McIntyre
24 April 2023
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA - AFTER COMMITTAL FOR SENTENCE ON PLEA OF GUILTY
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
The defendant was charged with four counts related to her driving a motor vehicle dangerously, crashing, injuring her passengers and fleeing the scene. The defendant pleaded guilty to all four charges in the Magistrates Court and the matter was committed to the District Court for sentence where the defendant was arraigned and the allocutus was administered. Count one was aggravated causing serious harm by dangerous driving. Prior to sentencing submissions being heard, the victim in relation to count one died as a result of her injuries. The Director of Public Prosecutions (DPP) filed an ex officio Information charging the offence of aggravated causing death by dangerous driving. The defendant pleaded guilty to that offence and the allocutus was administered. The DPP has declined to withdraw count one.
The defendant has applied by way of interlocutory application for orders that she be permitted to withdraw her guilty plea for count one or, in the alternative, that this Court grant a stay of proceedings in relation to the defendant being sentenced for that charge.
Held:
1. The application to withdraw the plea on count one is dismissed.
2. The application to stay proceedings in relation to count one is granted.
Criminal Law Consolidation Act 1935 (SA) ss 19A(1), 19AB(3), 19 AB(2); Criminal Procedure Act 1921 (SA) s 119, referred to.
R v HJS [2020] SASC 142; Stropin v The Queen [2021] SASCA 50; R v De Simoni (1981) 147 CLR 383; Hassan v The Queen [2022] SASCA 56; Pearce v The Queen (1998) 194 CLR 610, considered.

R v REES
[2023] SADC 49
Criminal: Decision

The defendant has applied by way of interlocutory application for an order that she be permitted to withdraw the guilty plea that was entered on count one on the Magistrates Court Information dated 24 June 2021 or, in the alternative, that this Court grant a stay of proceedings in relation to the defendant being sentenced for that charge. For the reasons that follow, I dismiss the application to withdraw the plea, but I will grant a stay of proceedings in relation to that charge.
Background
The defendant was committed for sentence to the District Court of South Australia on one count of aggravated causing serious harm by dangerous driving and one count of aggravated causing harm by dangerous driving contrary to s 19A(3) of the Criminal Law Consolidation Act 1935 (SA) (the Act) together with two counts of leaving the scene of an accident after causing harm or serious harm by careless use of a motor vehicle contrary to s 19AB(2) of the Act.
In the early hours of 3 December 2020, the defendant was driving her Mitsubishi Lancer in the Barossa Valley. The two victims were passengers. Mr Lawrence was seated in the front passenger seat and Ms Hamilton was seated in the rear centre seat. Police attempted to pull the defendant’s vehicle over for a traffic stop but the defendant accelerated away. Police pursued her vehicle for a time noting that she increased her speed and drove through a stop sign without slowing down or stopping. Police determined that the defendant’s driving was too dangerous to continue safely, and they discontinued the pursuit. Shortly after, the defendant lost control of her vehicle and collided with a stobie pole in Daly Street in Gawler East. The defendant and Mr Lawrence got out of the car, but Ms Hamilton was badly injured and unresponsive in the car. The defendant asked whether Ms Hamilton was dead. Mr Lawrence put his fingers to Ms Hamilton’s neck and told the defendant that he could not feel a pulse. The defendant panicked and ran away. Ms Hamilton was not dead; rather she had sustained life threatening injuries including a severe traumatic brain injury. She was taken to hospital by ambulance.
The charges were laid by Information dated 24 June 2021. The defendant pleaded guilty to all four charges in the Magistrates Court on 16 September 2021. On 12 November 2021, the defendant was arraigned in the District Court following committal for sentence and the allocutus was administered. There were some delays in listing the matter for sentencing submissions owing to a change in legal representation for the defendant. Submissions were ultimately listed during the week commencing 14 November 2022.
Sadly, Ms Hamilton, who had remained in hospital and hospice care following the accident, died as a result of her injuries on 13 November 2022. Sentencing submissions were adjourned and the Director of Public Prosecutions (DPP) filed an ex officio Information on 20 February 2023 charging the offence of aggravated causing death by dangerous driving contrary to s 19A(1) of the Act. The defendant pleaded guilty to that offence on 29 March 2023 and the allocutus was administered. The DPP has declined to withdraw the charge of aggravated causing serious harm to Ms Hamilton. For this reason, the defendant pursues this interlocutory application.
Leave to withdraw a guilty plea
A person who has been committed to a superior court for sentence in relation to a charge of an offence is required to obtain permission from the superior court for a change of plea under s 119 of the Criminal Procedure Act 1921 (SA).
Section 119 confers a very wide discretion in a court to permit the withdrawal of a plea in circumstances where it is in the interests of justice to do so. The approach to be taken is conveniently summarised in the decision of Doyle J in R v HJS.[1]
In the case of an application on appeal to withdraw a plea of guilty following a conviction upon the basis of that plea, the test is whether the circumstances in which the plea was entered involved a miscarriage of justice. By reason of the solemn nature of the acknowledgment of guilt ordinarily inherent in a plea of guilty, and the high public interest in the finality of legal proceedings, the courts have generally approached attempts on appeal to set aside a guilty plea with significant caution.
Similar considerations govern an application at first instance. However, in considering whether it is appropriate to exercise the Court’s discretion at first instance to permit a defendant to withdraw or change his plea, much may depend upon the timing of the application. While any application to withdraw or change an apparently informed and deliberate plea of guilty should be approached with some caution, the public interest in the finality of litigation is less of a concern when the Court has not yet acted upon the plea in any significant way. Indeed, prior to the relatively recent introduction of s 119 of the Criminal Procedure Act, the position had been that a defendant did not require the Court’s permission to change his plea prior to his first arraignment in a superior court.
While s 119(1) now requires that a defendant who has been committed to a superior court for sentence obtain the permission of that court in order to change his plea in relation to the relevant charge, it also confers an unfettered discretion upon the court to grant that permission. It will be sufficient to obtain this permission that the court is satisfied that it is in the interests of justice that the defendant be permitted to change his plea.
(citations omitted)
[1] [2020] SASC 142 at [77]-[79].
The general common law principles governing the withdrawal of a guilty plea apply. These are conveniently summarised in Stropin v The Queen as follows:[2]
[2] [2021] SASCA 50 at [34].
The principles which apply at common law were helpfully summarised in the Judge’s ruling at [15]. For convenience, we reproduce those principles here:
1     A plea of guilty involves an admission by a defendant of all the essential elements of the offence;
2     Courts approach attempts to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This rests on the public interest in the finality of legal proceedings and that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of all of the necessary legal ingredients of the offence;
3     As a general rule, an informed and deliberate plea of guilty should be treated as final unless it can be established that a miscarriage of justice has occurred;
4     A person may plead guilty and be held to that plea although the plea is made “upon grounds which extend beyond that person’s belief in his guilt”;
5     The onus is on the defendant to establish grounds that to hold him or her to their plea of guilty would result in a miscarriage of justice;
6     There is every reason why an informed and deliberate guilty plea should be treated as final and that, after entry of such a plea, the defendant should face the necessity of persuading the Court that a miscarriage of justice would result if bound by the plea. That rule however rests upon an informed and deliberate plea, and not on a plea based, possibly, on an amorphous and uncritical understanding;
7     A court will not likely set aside a conviction founded on a plea of guilty and in general terms will only do so if it is established to the satisfaction to [sic] the court that the making of the plea has been induced by material mistake, or by some improper threat or promise on the part of a police officer or other person in authority and that but for the inducement to plead it would not have been made;
8     A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding provided the plea is entered in the exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence;
9     Whereas the presence or absence of a genuine consciousness of guilt on the part of the defendant is a relevant consideration, the ultimate test is whether there has been a miscarriage of justice.
(citations omitted)
This is an unusual situation because the defendant freely admitted, and continues to admit, all the essential elements of the offence. Hers was an informed and deliberate plea of guilty. It was, moreover, an appropriate plea in the circumstances that prevailed at the time it was entered. I do not think it can be said that a miscarriage of justice has occurred. Accordingly, I do not give permission for the defendant to withdraw the guilty plea that was entered on count one on the Magistrates Court Information.
Stay of proceedings
The defendant’s alternative argument is that a permanent stay of sentencing for count one ought to be granted in the interests of justice. She accepts that she should be sentenced for the more serious offence of causing death. The defendant contends that the serious harm charge has been completely subsumed in the cause death charge and that to pursue both charges is an abuse of process. The prosecution, on the other hand, contends that this is not the case because the defendant’s actions caused both the death of the victim and almost two years of serious harm. The prosecution submits that it would be contrary to the De Simoni principle if the sentence for the cause death took into account the serious harm that was suffered during that period.[3] I do not agree.
[3] R v De Simoni (1981) 147 CLR 383.
In Hassan v The Queen, Doyle JA said the operation of the De Simoni principle did not require the sentencing judge to ignore the context and surrounding circumstances in which the offending occurred:[4]
In some cases there may be a degree of difficulty, and perhaps artificiality, in determining where the circumstances of the offending end, or must otherwise be ignored, on the basis that to take them into account would be to punish the offender for an offence of which he or she has not been convicted. In the present case, the R v De Simoni principle operated to prevent the appellant being punished for unlawfully entering the victim’s home knowing that (or being reckless as to whether) the victim was at home. But it did not require that the sentencing judge ignore that the assault took place in the context and circumstances I have described.
(citations omitted)
[4] Hassan v The Queen [2022] SASCA 56 at [66].
This will always be a question to be determined according to the particular facts and circumstances of each case. It is therefore important to look at the circumstances of this case. The relevant portions of s 19A of the Act are as follows:
19A—Causing death or harm by use of vehicle or vessel
(1)     A person who—
(a)     drives a vehicle or operates a vessel in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to any person; and
(b)     by that culpable negligence, recklessness or other conduct, causes the death of another,
is guilty of an indictable offence.
…
(3)     A person who—
(a)     drives a vehicle or operates a vessel in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to any person; and
(b)     by that culpable negligence, recklessness or other conduct, causes harm to another,
is guilty of an indictable offence.
The particulars of the offences alleged in the two charges, and the elements of the offences, are identical except in relation to the nature of harm caused by the relevant driving; specifically, whether the harm was serious harm (s 19A(3)) or death (s 19A(1)). The circumstances of aggravation alleged are identical in both charges. The maximum penalty for each of the offences is the same: life imprisonment.
The prosecution referred to the decision of the High Court in Pearce v The Queen in support of the proposition that the prosecution of multiple charges where charges contain different elements, and one charge is not wholly included in the other, does not constitute an abuse of process. [5] The plurality, McHugh, Hayne and Callinan JJ, said that:[6]
The decision about what charges should be laid and prosecuted is for the prosecution. Ordinarily, prosecuting authorities will seek to ensure that all offences that are to be charged as arising out of one event or series of events are preferred and dealt with at the one time. Nothing we say should be understood as detracting from that practice or from the equally important proposition that prosecuting authorities should not multiply charges unnecessarily.
There was, however, no abuse of process in charging this appellant with both counts 9 and 10. The short answer to the contention that the charging of both counts was an abuse of process is that because the offences are different (and different in important respects) the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose. To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni, would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused’s conduct that could have been charged separately.
(citations omitted)
[5] (1998) 194 CLR 610.
[6] At [30]-[31].
It is however clear that where two offences contain common elements it is wrong to punish the offender twice for the commission of those common elements. As the plurality in Pearce went on to say:[7]
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
[7] At [40].
During argument there was discussion as to how a sentence in relation to the two offences could be fashioned. The prosecution contended that the Court could sentence concurrently for the offending and, to the extent that there was a need to reflect in the sentence any difference in the sentence because of the outcome, this could be outlined in the sentencing remarks. The difficulty with this proposition is revealed by the factual circumstances in Pearce where the sentencing judge imposed identical terms of imprisonment on both counts and made those sentences wholly concurrent. In the circumstances of that matter, it was found that prima facie this doubly punished the appellant for the one act. The plurality said:[8]
Looked at overall, it may well be said that the effect of the sentences imposed on this appellant was not disproportionate to the criminality of his conduct. Nevertheless, we consider that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm. Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count.
[8] At [49].
Plainly there was no improper or ulterior purpose for the laying of the cause death charge. However, I consider that the failure to withdraw the first charge is vexatious and oppressive and amounts to an abuse of process.
The overlap between the two offences is very significant. Ms Hamilton is the victim in both. The defendant’s criminality in respect of each is precisely the same. The defendant’s actions took place on 3 December 2022. All matters over which the defendant had any control ceased then. The only difference between the two counts is the consequence. The defendant has always accepted responsibility for the consequences of her actions. She pleaded guilty to causing serious harm and has acknowledged causing death by her most recent plea. A sentencing exercise that fixed an appropriate sentence for each offence and then considered questions of cumulation or concurrence would be a highly technical and artificial exercise. I note the comments in Pearce that it is highly undesirable that the sentencing process should become any more technical than it is already. I also note that it would likely result in two convictions rather than one.
In many respects the laying of two charges is simply a question of timing. Had Ms Hamilton died at the scene of the accident the defendant would have only been charged with cause death. Had Ms Hamilton died a matter of weeks following the accident it is unlikely that the defendant would have been charged with causing serious harm for those weeks in addition to causing death. In this matter, De Simoni does not operate to prevent the Court from taking into account the consequences of the defendant’s conduct including the serious harm caused to Ms Hamilton and the effect upon her and her family of the significant period between the accident and Ms Hamilton’s death. The defendant’s submissions did not contend otherwise. Notions of criminality and appropriate punishment can be dealt with in sentencing for the cause death offence.

Accordingly, I consider that it is appropriate to grant the application to stay sentencing for count one on the Magistrates Court Information.