Rucioch v Police

Rucioch v Police
[2004] SASC 127
Magistrates Appeals (Criminal)

DOYLE CJ: Mr Rucioch has appealed against convictions recorded by the Magistrates Court and the sentence imposed by the Magistrates Court.
Mr Rucioch pleaded guilty to two charges charged on the one complaint. He was charged with driving a motor vehicle on Grand Junction Road without due care, contrary to s 45 of the Road Traffic Act 1961 (SA) (“the RTA”). He was further charged with being the driver of a motor vehicle on Grand Junction Road, who was turning right at an intersection with traffic lights, the intersection of Grand Junction Road and Eastern Parade, who did not give way to an oncoming vehicle that was going straight ahead at the intersection, contrary to Rule 62 (c) of the Australian Road Rules.
The first offence attracted a maximum penalty of a fine not exceeding $1,250.00; s 164A(2) of the RTA. On conviction, the Court had power to order that he be disqualified from holding or obtaining a driver’s licence; s 168(1) of the RTA. The second offence attracted a maximum penalty of a fine of $1,250.00; Rule 50(1) of the Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 1999. An offence against the provision of the Road Rules also attracts the power to disqualify under s 168(1) of the RTA: s 4(1) of the Acts Interpretation Act 1915 (SA).
After pleas of guilty were entered, the Magistrate heard submissions from the police prosecutor and from counsel for Mr Rucioch. No evidence was given on either side. The Magistrate had before her witness statements obtained by the police, and heard oral submissions from counsel for Mr Rucioch. The Magistrate recorded a conviction on each count, imposed a fine of $750.00, and ordered that Mr Rucioch be disqualified from holding or obtaining a driver’s licence for two years six months. I assume that the Magistrate exercised her powers under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose one penalty for the two offences.
The first ground of appeal is that the Magistrate erred in recording a conviction on both counts. Mr Dadds, counsel for Mr Rucioch, on appeal submitted that as each offence arose from the same facts, the Magistrate should have required the prosecutor to elect for a conviction on one or other count, and should not have convicted on each count. No such submission was put to the Magistrate.
The second ground of appeal is that the sentence is excessive. In support of this submission Mr Dadds argued that the Magistrate gave undue weight to the consequences of the offences, and insufficient weight to the fact that the offences involved momentary inattention, and insufficient weight to Mr Rucioch’s personal circumstances.
Mr Dadds also argued that the Magistrate was obliged to accept facts put in mitigation by counsel for Mr Rucioch, because those facts constituted a version of the facts reasonably open in the circumstances. He submitted that the Magistrate was not at liberty to reject the version of the facts put forward by counsel for Mr Rucioch, not having warned Mr Rucioch that she might not accept the submission, and that he should consider whether he wished to give evidence in support of his version of the events. Mr Dadds referred to and relied on the decision in Law v Deed [1970] SASR 374. As Mr Ahern, counsel for the respondent, properly pointed out, there was no ground of appeal raising this issue.
Facts
Mr Rucioch was driving a large truck west along Grand Junction Road, approaching the intersection with Eastern Parade. The intersection is controlled by traffic lights. The lights were green for westbound and eastbound traffic on Grand Junction Road. As I understand the circumstances, the traffic lights included lights that could display a red, amber or green arrow for westbound traffic turning right into Eastern Parade. However, there is no suggestion that those lights were displaying a green light, which would have indicated to the driver in Mr Rucioch’s position that he had priority over eastbound traffic approaching the intersection.
When Mr Rucioch approached the intersection, it was about 6.20am on a winter morning. It was dark. The road was dry. The street lights were on. Mr Rucioch was driving his truck adjacent to the centre line, because he was intending to turn right into Eastern Parade. He slowed as he approached the intersection.
At this time two or three motor cars were eastbound on Grand Junction Road, approaching the intersection. My impression is that the closest motor car to Mr Rucioch was about 50 metres or 60 metres from the intersection. About 40 or 50 metres ahead of these motor cars, and travelling in the lane closest to the centre of the road, was a motorcycle being ridden by Mr Woodman.
Mr Rucioch entered the intersection and began to turn right into Eastern Parade. As he began to turn right the approaching motor cars were about 50 metres from the intersection. Mr Woodman’s motorcycle was closer, and apparently within 15 metres or 20 metres of the intersection.
Almost immediately, the motorcycle collided with the truck. The circumstances indicate that Mr Woodman had no opportunity to take evasive action. At this stage the traffic lights for eastbound traffic were still green.
The Magistrate accepted that Mr Ruchioh did not see Mr Woodman, and thought that he had time to turn across the path of the approaching motor cars. She referred to Mr Rucioch’s driving as involving “momentary inattention and carelessness”. There was no suggestion that Mr Rucioch was affected by drugs or alcohol. The Magistrate proceeded on the basis, correctly in my opinion, that Mr Rucioch failed to see the motorcycle that was between him and the approaching motor cars.
The Magistrate did not refer to a submission by counsel for Mr Rucioch that he saw that two approaching vehicles had slowed and either stopped or were about to stop, and that this led Mr Rucioch to think it was safe to turn. Nevertheless, it is apparent that she did not accept that submission. Nor did the Magistrate refer to a submission that Mr Rucioch began his turn at a relatively low speed. I am unsure what finding the Magistrate intended to make on that point.
The Magistrate referred, not surprisingly, to the fact that Mr Woodman died as a result of his injuries. She recognised that although it was a case of momentary inattention, the consequences for Mr Woodman were terrible, and that the outcome was a tragedy for the members of Mr Woodman’s family. The victim impact statements available to the Magistrate reveal that the family of Mr Woodman had been devastated by his death.
The Magistrate accepted that Mr Rucioch was deeply sorry for what had happened, and was suffering from the realisation of the consequences of his own conduct. The Magistrate was aware that Mr Rucioch drove a truck for a living.
Appeal against conviction
Mr Dadds submitted that as the two offences arose from one set of facts, Mr Rucioch could not be convicted of more than one offence. He relied on the decision of a single Judge in Burton v Samuels (1973) 5 SASR 201.
I agree that the two offences arose from the same facts and from a single incident. Mr Rucioch’s conduct in turning to the right across the path of Mr Woodman, and his failure to yield right of way, provided the factual basis for the charge of driving without due care. Each charge arose out of Mr Rucioch’s driving of his truck after it entered the intersection and as he began to turn across the path of eastbound traffic.
I am not satisfied that the decision in Burton establishes the principle upon which Mr Dadds relied. Be that as it may, I agree that observations made by some members of the Full Court in R v O’Loughlin; ex parteRalphs (1971) 1 SASR 219 might be thought to support his submission. No reference was made by Mr Dadds to that case.
I considered the decision of the Full Court in O’Loughlin at some length in DAT v Police [2002] SASC 219; (2002) 83 SASR 237. I concluded that O’Loughlin does not establish a principle as broad as that submitted by Mr Dadds. I remain of that view.
In brief, in DAT v Police the circumstances were that the appellant pleaded guilty in the Youth Court to two offences committed while he was under an obligation imposed under the Young Offenders Act 1993 (SA). An obligation is similar to a bond. A condition of the obligation was that the appellant be of good behaviour. The appellant, during the period of the obligation, had committed two offences to which he pleaded guilty in the Youth Court. The commission of these offences was relied upon as constituting a breach of the obligation. The appellant argued that he could not be convicted of a breach of the obligation, because the conduct relied upon to prove the breach was the offences referred to, the appellant being treated for the purposes of the submission as having been convicted of those offences. The submission was, in effect, that to convict the appellant for breach of the obligation was to convict him twice for the same conduct, or to convict him of two offences in respect of the same or substantially the same set of facts. The decision of this Court in O’Loughlin was the basis for that submission. After referring to a number of decisions in point, I said at [37]:
“My view is that the reasoning of Zelling J and King J in Maple v Kerrison is that there is no common law bar to a prosecution for an offence of failing to comply with a condition or obligation to be of good behaviour, the proof of that offence being proof of a crime which is, to put it compendiously, part of the ordinary criminal law. It is no answer to a charge for an offence of breaching a condition or obligation to be of good behaviour that proof of that offence involves proof of facts which would be necessary and sufficient to procure a conviction for the offence under the ordinary criminal law. The reason for the conclusion is that the offence of breaching a condition or obligation to be of good behaviour is an offence different and distinct from a crime under the ordinary criminal law, and there is no common law principle against a person being convicted of different offences arising out of the same facts.
I will not repeat the reasoning that led me to that conclusion.
When I decided DAT v Police the decision of the High Court in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 was not drawn to my attention. I made no reference to it. Nor was it referred to by Mr Dadds or by Mr Ahern.
In Pearce the High Court considered the circumstances in which a person is entitled to enter a plea in bar to one or more counts on which the person is charged, when such a person is entitled to a stay of proceedings on one or more counts, and the approach to be taken to punishment in relation to one or more counts arising from the same facts.
In Pearce the Court rejected a submission that a plea in bar was available when a person was charged with an offence, having previously been prosecuted for “substantially the same” offence, or when a person is charged with different offences arising out of substantially the same set of facts: at [18]. The Court made reference to the decision in O’Loughlin in that context.
The Court referred to the enquiry to be undertaken when a person is charged with different offences arising out of substantially the same facts. The conclusion of the majority (McHugh, Hayne and Callinan JJ) is stated as follows at [20] and at [21]:
“[20]…At first sight this might suggest that it is appropriate to consider what witnesses would be called and what each of those witnesses could say about the events which gave rise to the charges. Closer examination reveals that the inquiry suggested is different; it is an inquiry about what evidence would be sufficient to procure a legal conviction. That invites attention to what must be proved to establish commission of each of the offences. That is, it invites attention to identifying the elements of the offences, not to identifying which witnesses might be called or what they could say. It is only if attention is directed to what evidence might be given, as opposed to what evidence was necessary, that the inquiry begins to slide away from its proper focus upon identify of offence to focus upon whether the charges arise out of the same transaction or course of events.
[21] Further, when it is said that it is enough if the offences are “substantially” the same, this should not be understood as inviting departure from an analysis of, and comparison between, the elements of the two offences under consideration.”
It is helpful to refer to the following passages, in which the majority explain the basis of their approach:
“[24]…On closer analysis, therefore, it may be that Wemyss and other cases that are said to support the proposition that a plea in bar is available when a person is charged with different offences arising out of the same set of facts do not do so. Moreover, there are sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other.
[25] Shifting attention to whether the offences arise out of the same conduct, or out of a single event or connected series of events, would be to substitute for a rule prohibiting prosecution twice for a single offence a rule that would require prosecuting authorities to bring at one time all the charges that it is sought to lay as a result of a single episode of offending. That would raise still further questions. How would a single episode of offending be defined? Would its limits be temporal or would they be founded in the intentions of the actor?”
Gummow J agreed with those views at [63], as did Kirby J at [106].
The decision in Pearce is the decision to be applied by this Court, and to the extent that anything said in O’Loughlin departs from that decision, it is to be disregarded. As I understand the High Court decision in Pearce, my decision in DAT v Police is consistent with Pearce.
Accordingly, the recording of a conviction on each count is open to objection, as a matter of law, only if the elements of each offence are the same, or if the elements of one offence are included in the other offence.
In the present case the elements of the offence of failing to give way (to express it briefly) involved proof that Mr Rucioch entered an intersection with traffic lights, that he turned right at that intersection, that at that time there were oncoming vehicles that were going straight ahead, and that he failed to give way to one of those vehicles. Failure to give way would require proof that the oncoming vehicles were sufficiently close to the intersection for Mr Rucioch’s conduct to amount to a failure to give way.
The elements of the offence of driving without due care involve proof that Mr Rucioch was driving a vehicle (an element of the failure to give way) and that he failed to exercise the care and consideration for another user of the road that a reasonably prudent driver would exercise. That failure could be established by proving that he turned across the path of an approaching vehicle. It would be relevant, while not essential in any way, to prove the presence of traffic lights and the obligation to give way under Rule 62 (c). They were incidental matters, but not elements of the offence. Even if there were no traffic lights at the intersection, the driving in question would amount to a failure to exercise due care. The same would apply if the incident occurred, not at an intersection, but as a result of Mr Rucioch turning across the roadway to enter private premises at the side of the road. Moreover, an element of the offence of driving without due care includes a qualitative assessment of his conduct, as distinct from a determination of the more limited question of whether, in the circumstances, he drove his truck into position, such that he failed to give way to the approaching vehicles.
Accordingly, the two offences are not the same, nor are the elements of one offence included within the other.
The Magistrate was entitled to enter a conviction on each count. Accordingly, it is not necessary to consider the significance of the fact that no objection was raised to her doing so.
Mr Dadds did not argue that it was an abuse of process for the prosecution to seek a conviction in respect of each count. It might be an abuse of process to do so in a case like this if, in the circumstances, it is oppressive to charge more than one offence. In that respect, observations made in O’Loughlin may be relevant, and all members of the High Court in Pearce recognised that the laying of multiple charges might be an abuse of process, even though no objection could be taken by way of a plea in bar; McHugh, Hayne and Callinan JJ at [29]-[30], Gummow J at [67], Kirby J at [117].
In the present case each count reflects different aspects of Mr Rucioch’s driving. The failure to give way and the driving without due care are both separate aspects of his driving. On the other hand, they are very closely linked, and it might be said that the case is borderline. Nevertheless, I am not satisfied that in the present case it is unfair or oppressive for a conviction to be sought on each count, but I repeat that no submissions were put on this point.
Accordingly, I dismiss the appeal against conviction.
Appeal against sentence
In imposing penalty the Magistrate had to bear in mind that each offence arose from a single incident, and that Mr Rucioch was not to be punished twice for elements that are common to each offence, or, I would add, for conduct that was common to each offence: Pearce at [40]. There is no indication that the Magistrate overlooked this point.
The Magistrate was entitled to have regard to the consequences of the offences, namely the death of Mr Woodman: McCormack v The Queen (unreported, Court of Criminal Appeal, 6 June 1991, Judgment number S2883). I reject the submission that the Magistrate’s reasons indicate that she gave undue weight to this matter.
However, I accept the submission that the penalty imposed is substantially greater than the level of penalty usually imposed for an offence of this kind and seriousness, when death results.
There is no point in trying to be precise in this respect, but decisions of which I am aware indicate that in cases of this general kind a fine of about $750.00 has been considered appropriate, and in addition an order that the offender be disqualified from holding or obtaining a driver’s licence for a period of about six months. I refer to the following cases simply by way of illustration: McCormack, R v Gathercole (2001) 34 MVR 156; [2001] SASC 248 Austin v Police ; (2001) 35 MVR 302; [2001] SASC 425.
In the circumstances, the sentence must be set aside and Mr Rucioch must be re-sentenced. It is not necessary to deal with the submission put by Mr Dadds based on the decision in Law v Deed. It suffices to say that the remarks in that case upon which Mr Dadds relied may have been overtaken, in part, by the decision of the High Court in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, and by decisions of this Court in R v Lobban [2001] SASC 392; (2001) 80 SASR 550 and in R v Haydon [2001] SASC 407; (2001) 80 SASR 560. However, I express no view on that matter, none of these cases having been the subject of submissions in any detail before me.
It is appropriate to sentence Mr Rucioch on the basis that he failed to see Mr Woodman travelling ahead of the approaching motor cars. In that respect his lookout and attention were deficient to a significant degree. A driver turning right at an intersection is under an obligation to take particular care to look for approaching vehicles, and to give way to them. That is the very thing that Mr Rucioch failed to do. I reject the submission that approaching vehicles had slowed or stopped at the intersection, causing Mr Rucioch to think that it was safe to turn. I also reject the submission that there was anything that could have caused Mr Rucioch to think that they had slowed or stopped. There is simply no basis for that submission. It is not reasonably open on the facts. Mr Dadds did not seek to lead evidence from Mr Rucioch on appeal. I am not prepared to accept this submission as to the circumstances of the offences.

Nevertheless, I accept that it is a case of momentary inattention, although inattention that had tragic results. I take into account Mr Rucioch’s good character, good record, the fact that he is genuinely remorseful, and the fact that he is dependent upon his licence for his livelihood.
I order that there be substituted for the order made by the Magistrate, an order imposing a fine of $750.00, and an order that Mr Rucioch be disqualified from holding or obtaining a driver’s licence for a period of eight months, commencing on a date to be fixed by me.

[2004] SASC 127

5 May 2004