Simon John Baillie v R No. SCCRM93/366 Judgment No. 4307 Number of Pages 9 Criminal Law and Procedure

[1993] SASC 4307

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL LEGOE(1), MOHR(2) AND BOLLEN(3) JJ

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - information, indictment or presentment - appellant pleaded guilty according to the information to driving in a manner which was dangerous to the public and by such negligence caused bodily harm to another person - on the information sheet the of fence was designated as a 'major indictable offence' - the appellant was sentenced by using higher penalties applicable for offences where grievous bodily harm was caused even though this was not pleaded. Held - the sentencing judge breached the rules of practice by exposing the appellant to higher penalties to which he had not pleaded - sentence reduced accordingly major indictable offence relates to the court of law in which charge to be heard and not to length of sentence to be imposed - discussion of procedure for laying informations and Supreme Court and District Court Rules relating to informations. Criminal Law Consolidation Act 1935 (SA) ss.19a. and 275 and Summary Procedure Act 1921 (SA). R v Hietanen (1989) 51 SASR 510, applied. R v Moore CCA unreported judgment number 1777 21/9/89, distinguished.

HRNG ADELAIDE, 15 November 1993 #DATE 22:12:1993
Counsel for appellant:     Mr C J Kourakis
Solicitors for appellant:    Elston and Gilchrist
Counsel for respondent:     Mr B J Jennings QC
Solicitors for respondent: Director of Public Prosecutions

ORDER
Appeal allowed.

JUDGE1 LEGOE J This is an appeal against a number of sentences imposed in the District Court. The appellant pleaded guilty either in the Magistrates Court or the District Court to four traffic offences committed on 6 October 1991, and a number of further complaints relating to a series of different offences in February, March, April and May 1993. 2. Further, he was charged on the information with a number of offences which occurred on 24 February 1993. The main offence in that information was the centre of the matters canvassed in this appeal. That charge is set out in the reasons of my brother Mohr J. I add some remarks of my own relating to the procedure which governs the laying of charges and allegations of aggravating circumstances where higher penalties are prescribed in the relevant legislation. 3. In this appeal the relevant procedure arises by virtue of sub-s.(4) of s.19a. of the Criminal Law Consolidation Act 1935 (SA), which prescribes different levels of penalty for an offence against sub-s.(3) where (a) "grievous bodily harm was caused to a person", and lesser penalties for the same offence where "grievous bodily harm was not caused to any person". 4. The relevant facts in this appeal are conveniently summarised in the reasons of my brother Mohr J. The appellant was committed for sentence on 24 May 1993. The committal was ordered pursuant to Part V of the Summary Procedure Act on the charge of driving a motor vehicle on 2 24 February 1993 at Malvern "in a culpably negligent manner etc. which was dangerous to the public and by such negligence etc. caused bodily harm to another person". 5. His plea of guilty was presented to the District Court on the basis that he caused bodily harm. If "grievous" bodily harm was to be alleged then the relevant particulars should have been incorporated in the information. No such allegation was made. It was stated in the information that "this offence is designated as a major indictable offence". In my opinion, such a statement relates only to the relevant court which by law is seised of the jurisdiction to hear and determine the charge and not to the length of the sentence that should be imposed. 6. In R. v Hietanen (1989) 51 SASR 510, King CJ (Mohr and Prior JJ concurring) held "there is one offence of causing bodily harm by dangerous driving". The maximum penalty differs according to the various criteria specified by the legislation; (see sub-s.(4) and King CJ at p.512). King CJ (Mohr J. concurring and Prior J dissenting in part) held (p.514) that:
    "Where a statute fixes penalties for an offence by
    reference to circumstances of aggravation, there is a rule of
    practice that the circumstances which would expose the accused
    to the higher penalties must be pleaded in the charge and, if
    the issue is joined, adjudicated by the tribunal of fact. The
    situation is different from the ordinary case in which there is
    but one maximum and the question is the range within that
    maximum which is relevant." 7. In R. v Moore, Court of Criminal Appeal, unreported judgment number 1777, dated 21 September 1989, Mohr J (at p 3) noted the Crown had argued that it was 3 unnecessary for the information to allege the circumstances of aggravation, i.e. "to allege 'grievous' rather than mere 'bodily' harm". 8. As the injuries sustained in that case "clearly fell within the more serious category" the decision in that case did not resolve the question in this appeal as to how should "the sentencing judge decide whether or not the injury sustained falls within one category or another". That question was answered in R. v Hietanen (supra). 9. In this case the learned sentencing judge said in his report:
    "I sentenced Mr Baillie on the basis that he had pleaded
    guilty to an offence of cause bodily harm by dangerous driving
    on 24 February, 1993, in circumstances where grievous bodily
    harm was done to the driver of the vehicle with which Mr
    Baillie's stolen vehicle collided on the day in question. That
was my understanding of the basis of his plea of guilty." 10. The learned sentencing judge further states that if he misapprehended the basis of the plea: "(that is, that the other driver concerned did not sustain grievous bodily harm in the collision) then the sentence of four years imprisonment for that offence was plainly inappropriate". The procedure for laying informations. 11. The information upon which this appellant was charged with the s.19a. offence was laid pursuant to s.101 of the Summary Procedure Act 1921 (SA). That section reads: "101 (1) Where a person is suspected of having committed an indictable offence triable in this State, an information may be laid, in accordance with the rules, charging that person with that offence." 12. It must be reduced to writing; sub-s.(2). It must be filed in the court as soon as practicable after it is laid; sub-s.(3). Rule 19 of the Magistrates Court Rules 1992, governs the form of written informations (Form 4). Rule 19.08 reads: "An information shall state as to each charge whether it is a major indictable, minor indictable or summary offence". 13. Rule 19.10 reads: "An information shall comply with rule 15.02." 14. Rule 15.02 reads: "Where a complainant or informant seeks an order of forfeiture, compensation, additional penalty, destruction or the like, the complaint or information must so state." 15. Pausing there, it is clear that the information laid in this matter charging the appellant with an offence against s.19a. of the Criminal LawConsolidation Act did charge him with the one offence (see R. v Hietanen, supra), but there was no statement alleging his offence was one whereby he caused grievous bodily harm and therefore rendered him liable to more severe penalties. 16. Minor indictable offences inter alia are those where the maximum term of imprisonment does not exceed five years; s.5(3)(a)(ii) of the Summary Procedure Act. By s.19a. sub-s.4(b)(i) of the Criminal Law Consolidation Act states that where "grievous bodily harm was not caused to any person" the maximum penalty for a first offence, which this offence was in the case of this appellant, is four (4) years imprisonment and disqualification from holding or obtaining a driver's licence for one (1) year or "such longer period as the 5 court orders". Therefore the offence charged in the absence of any allegation of "grievous" bodily harm was a minor indictable offence and the statement that it was "major" cannot be read as particulars of an allegation of aggravation (see Rule 15 02 of the Magistrates Court Rules, supra). 17. In the Supreme Court or District Court, persons may be put on trial at any criminal sessions "on an information presented to the court in the name and by the authority of the Director of Public Prosecutions" (s.275(1) of the Criminal Law Consolidation Act). The general law and enactments "relating to indictments and to the manner and form of pleading ..." applies to procedures in those courts; (s.275(2) of that Act). The Rules for "informations" are contained in Schedule 3 to the Act. Those rules provide generally for a statement as to the particulars of the offence and any alternative offences (see Rule 4(4) and 5(1) thereof). 18. In this case the circumstances which would expose the accused to higher penalties were not pleaded and therefore there was a breach of the rule of practice; see R. v Hietanen (supra). As there was a reasonable possibility that there could have been a finding that the injury to the other motorist (see the facts in the reasons of my brother Mohr J.) was not "grievous" that sentence cannot stand; see R. v. Hietanen (supra). 19. I agree with Mohr J that the appeal be allowed for the purpose of reducing the sentence on the count of causing bodily injury by dangerous driving from four years to two years. I further agree that the licence 6 disqualification of 10 years should be set aside and a period of four years substituted. 20. As far as the appeal against the sentences imposed on all the other (numerous) summary offences is concerned, I totally agree with the reasons expressed by my brother Mohr J that this part of the appeal should be dismissed. 21. Therefore I agree with the orders proposed by Mohr J. 22. I should add to the various statutory procedures laid down in the legislation and court rules that the Director of Public Prosecutions, having the responsibility pursuant to s.275(1) of the Criminal Law Consolidation Act to present informations for the trial of accused persons, presumably has the responsibility of deciding in the case of persons committed to the District or Supreme Courts for sentence, whether the facts involve questions as to higher penalties in cases of aggravation, such as the present case. 23. This point was not argued. But I draw the attention of the authorities to the circumstances of the form in which the charge under s.19a. of the Act was presented to the District Court for sentencing. If, as I think should have been the case, it was considered a proper case for the higher penalties in cases of "grievous" bodily harm, then the appropriate pleading and particulars should have been formally presented to the District Court.

JUDGE2 MOHR J The appellant appeared before the Magistrates Court at Adelaide charged on information with numerous offences arising from his driving of a motor vehicle on the 24th February 1993 at Malvern and other places. 2. The main offence for the purpose of this appeal was alleged in the information to be:-
    "On the 24th February 1993 at Malvern in the said State
    drove a motor vehicle in a culpably negligent manner, or
    recklessly, or at a speed, or in a manner which was dangerous to
    the public and by such negligence recklessness or other conduct
    caused bodily harm to another person. Section 19b of the
    Criminal Law Consolidation Act 1935. This offence is designated
a Major Indictable Offence." 3. As stated there were numerous other driving offences committed on the same day and I will return to consider these in due course as I will return to the numerous other offences which were dealt with at the same time. 4. The appellant pleaded guilty to all of the offences alleged to have been committed on 24th February 1993 when called upon to plead in the Magistrates Court. He was committed for sentence to the District Court. In due course, either in the Magistrates Court or before the District Court he pleaded guilty to the other offences already mentioned. 5. The offence of which the appellant was convicted on the count of causing bodily harm by dangerous driving is created by Section 19a of the Criminal LawConsolidation Act 1935. The relevant subsections are (3) and (4) and are as follows:-
    "(3) A person who -
     (a) Drives or rides a vehicle or an animal in a culpably
    negligent manner, recklessly, or at a speed or in a manner
    dangerous to the public;
     and
     (b) by that culpable negligence, recklessness or other
    conduct, causes bodily harm to another, is guilty of an
    indictable offence.
     (4) The penalty for an offence against subsection (3) is as
    follows:-
     (a) where a motor vehicle was used in commission of the
    offence and grievous bodily harm was caused to a person -
        (i) for a first offence - imprisonment for a term not
    exceeding 10 years and disqualification from holding or
    obtaining a driver's licence for 5 years or such longer period
    as the court orders;
        (ii) for a subsequent offence - imprisonment for a term not
    exceeding 15 years and disqualification from holding or
    obtaining a driver's licence for 10 years or such longer period
    as the court orders;
     (b) where a motor vehicle was used in commission of the
    offence but grievous bodily harm was not caused to any person -
        (i) for a first offence - imprisonment for a term not
    exceeding 4 years and disqualification from holding or obtaining
    a driver's licence for one year or such longer period as the
    court orders;
        (ii) for a subsequent offence - imprisonment for a term not
    exceeding 6 years and disqualification from holding or obtaining
    a driver's licence for 3 years or such longer period as the
    court orders;
     (c) where a motor vehicle was not used in commission of the
offence - imprisonment for a term not exceeding 2 years." 6. The effect of these subsections was considered in R. v. Hietanen (1989) 51 SASR 509. In that case it was authoritively laid down that as a rule of practice where the prosecution sort to rely on an allegation that grievous bodily harm was caused by the dangerous driving that allegation should be pleaded. Thus if the allegation was made but the accused pleaded "Guilty" to dangerous driving but was "Not Guilty" to the allegation of "grievous bodily harm" a trial could ensue leaving it to the jury to decide the point. 7. In the present case the allegation was not made in the information and the accused pleaded "guilty" to the information as drawn and was committed for sentence on that plea. 8. The sentence imposed was the maximum for the offence if grievous bodily harm was caused. As the learned sentencing Judge acknowledged in his report to this Court he had sentenced under the misapprehension that the plea had been made on the basis that grievous bodily harm had been caused. He acknowledged that if grievous bodily harm had not been caused then the sentence was plainly inappropriate. 9. A similar situation arose in Hietanen (supra) and the Chief Justice dealt with the matter by considering the bodily harm done in the two counts there considered. After remarking that grievous bodily harm envisaged harm that was "really serious" and went on to point out:- "Although it (the bodily harm) need not necessarily be life threatening, some idea of the degree of seriousness envisaged may be gained by the reflection that an intent to cause grievous bodily harm is sufficient to constitute the mental element of the most serious crime known to law, namely murder, and that causing grievous bodily harm with intent to do so attracts a maximum punishment of imprisonment for life; Criminal Law Consolidation Act, s21." 10. He then went on to consider the injuries caused by that offender and had no doubt that in one case grievous bodily harm had been caused. As to the other he said:-
    "I think that in relation to the second count there is at
    least a reasonable possibility that, if the circumstance of
    aggravation had been properly alleged and left to a jury, the
    jury would not have found the harm suffered by the victim to be
    'grievous'. There was no allegation that the harm was serious
    in the charge to which the appellant pleaded guilty. There was
    therefore no admission of the circumstance of aggravation which
    would expose the appellant to the higher range of penalties.
    The finding made by the judge was not within his power or
    function to make. As there is a reasonable possibility that a
    jury would not have found the harm to be 'grievous', I consider
    that the sentence in relation to the second count cannot stand." (p.515) 11. In my opinion this is the situation here. This court must consider the injuries caused to the victim and decide whether or not there is a reasonable possibility that a jury, if it had considered the matter, would have decided they were "grievous". 12. The victim in this case was a 75 year old man. He was the driver of the car struck by the appellant's vehicle. He suffered no loss of consciousness but was found on admission to hospital to have an abrasion to the vertex of his scalp, an abrasion over the right side of the jaw with considerable swelling and tenderness over the anterior sternum. X-ray examination revealed possible fracture of the lower right ribs but clinically they were diagnosed as fractured. He was treated with oxygen and because his injuries were considered serious he was admitted to the surgical ward for the management of his chest injuries. He left hospital after five days having been treated with analgesics and chest therapy. By that time the pain from his injuries had resolved. According to a "victim impact statement" dated 5th April 1993 the victim was said to have "limited movement of his right side and this has caused him to stop work on his farm and stop playing lawn bowls. The victim has not driven a motor vehicle to this date as he is fearful of being involved in another accident". no medical evidence was adduced as the sequelae of the victims injuries. 13. In my opinion, in the words of the Chief Justice cited above, there was at least a reasonable possibility that, if the circumstance of aggravation had been left to a jury, the jury would not have found the harm suffered by the victim to have been "grievous". Accordingly I would allow the appeal for the purpose fo reducing the sentence on the count of causing bodily injury by dangerous driving from 4 years to 2 years. The driving itself as will be seen was appalling and must rank among the higher categories of dangerous driving. 14. On the day in question the appellant had at Mount Barker taken a vehicle without the consent of its owner. He then proceeded to drive towards Adelaide along the freeway and Mount Barker Road. He had an excess of alcohol in his blood. He had no licence, in the course of his journey he "side swiped" another vehicle and did not stop. He was pursued by the driver of the car "side swiped" who attempted to stop him, he left the Mount Barker road and drove down Cross Road at an excessive speed until he came to the intersection of that road with Duthie Street. That intersection is controlled by traffic lights. The lights were against the appellant. Other traffic had stopped in obedience to the lights. The appellant crossed to his incorrect side of the road and proceeded to attempt to cross the intersection in disobedience of the lights. He collided with the victim's car which was crossing the intersection. The learned sentencing Judge categorised the appellant's offences as follows:-
    (1) Driving (2) Drugs (3) Dishonesty (4) Street offences.
     He then proceeded to impose sentence under the various
    categories thus:-
     "DRIVING 1. Excess alcohol 6/10/91 Fine $350.00 in default 7
    days imprisonment payment forthwith.
     2.(a) Cause bodily harm by dangerous driving Imprisonment for
    4 years (b) Illegal use Imprisonment for 6 months, cumulative

    upon the 4 years imprisonment (c) No licence Fine $300.00, in
    default 6 days imprisonment, payment forthwith (d) Drive without
    due care Fine $600.00, in default 12 days imprisonment, payment
    forthwith (e) Fail to stop Fine $800.00, in default 16 days
    imprisonment payment forthwith (f) Fail to comply with traffic
    lights Fine $650.00, in default 13 days imprisonment, payment
    forthwith (g) Excess alcohol Fine $400.00, in default 8 days
    imprisonment, payment forthwith Seven offences all on 24/2/93
    part of the same course of conduct but separate incidents.
     3.(a) Illegal use of motor vehicle on 18/4/93 Imprisonment for
    9 months, cumulative (b) No licence on 18/4/93 Fine $600.00, in
    default 12 days imprisonment, payment forthwith Total of 5
    years and 3 months imprisonment Disqualified from holding or
    obtaining a driver's licence for 10 years
     DRUGS 1.(a) Possess cannabis on 24/2/93 Fine $100.00, in
    default 2 days imprisonment, payment forthwith (b) Possess
    equipment on 24/2/93 Fine $50.00, in default 1 day imprisonment,
    payment forthwith 2. Smoke cannabis on 26/4/93 Fine $50.00, in
    default 1 day imprisonment, payment forthwith 3. Possess pipe
    on 14/5/93 Fine $100.00, in default 2 days imprisonment, payment forthwith.
     DISHONESTY (a) Shoplifting (Larceny) on 10/3/93 Imprisonment
    for 7 days (b) Shoplifting (Larceny) on 7/5/93 Imprisonment for
    10 days (c) Larceny on 26/5/93 Imprisonment for 3 months (d)
    Larceny on 27/5/93 Imprisonment for 4 months (e) Attempted
    break, enter and larceny on 27/5/93 Imprisonment for 8 months
    (f) Larceny on 18/6/93 Imprisonment for 6 months The above
    sentences are concurrent (g) Illegal interference on 20/6/93
    Imprisonment for 8 months (h) Larceny on 20/6/93 Imprisonment
    for 3 months (i) Larceny on 20/6/93 Imprisonment for 3 months
    The above sentences are concurrent but cumulative on sentences
    imposed in (a) to (f) Total of 16 months imprisonment
     STREET OFFENCES (a) Carry offensive weapon on 18/4/93
    Imprisonment for 1 month (b) Damage property on 28/5/93
    Imprisonment for 7 days (c) Carry offensive weapon on 17/6/93
    Imprisonment for 6 weeks (d) Wilful damage on 25/6/93
    Imprisonment for 10 days (e) Disorderly behaviour on 21/7/93
    Imprisonment for 14 days These sentences are concurrent but
    cumulative on other sentences Total of 6 weeks imprisonment.
     IN SUMMARY Driving offences - imprisonment 5 years 3 months
    Dishonesty offences - imprisonment 1 year 4 months Street
    offences - imprisonment 6 weeks Total imprisonment - 6 years 8
    months 2 weeks NPP 4 years 2 months Licence disqualification 10
    years Sentences to commence on 27/8/93 Government Levies
    $730.00" 15. The appellant's counsel submitted that the penalties imposed, apart from that for causing bodily harm by dangerous driving, which I have already dealt with, were excessive. I am not persuaded that taken as a whole they were. The course of conduct disclosed was deplorable and in its totality well merited the penalties imposed. I would not interfere except in one particular. The period of disqualification from holding or obtaining a driving licence was 10 years. That is the penalty if the circumstance of aggravation of the main offence had been made out. In the circumstances, as I have found this did not amount to the aggravated offence this period should be reduced. Section 19a(b) provides for disqualification for one year or such longer period as the court orders, there should, in my opinion be a reduction in the period of disqualification. As I have said the appellant's driving on this occasion taken in its entirety and culminating in the final collision was appalling with the added factor of excessive consumption of alcohol. I would set aside the order for disqualification for ten years and substitute therefore the period of 4 years. 16. The effect of the foregoing is to reduce the appellant's overall sentence from 6 years 8 months and 2 weeks to 4 years 8 months and 2 weeks. A non-parole period of 4 years and 2 months was fixed. I would reduce that to a period of 2 years.

JUDGE3 BOLLEN J I agree with the order proposed by Mohr J. I agree with everything which Legoe and Mohr JJ have written.