Aggravated Police Pursuit Charge Withdrawn: Good Behaviour Bond Instead of Imprisonment
An aggravated charge of dangerous driving to escape a police pursuit was withdrawn after our written representations. The prosecution sought imprisonment, but the Berri Magistrates Court imposed a supervised good behaviour bond and no term of imprisonment.
Our client was charged with aggravated dangerous driving to escape a police pursuit under section 19AC of the Criminal Law Consolidation Act 1935 (SA), with drink driving and with driving unlicensed. After our written representations, the prosecution withdrew the section 19AC charge and proceeded instead on dangerous driving and failing to stop under the Road Traffic Act 1961 (SA). Our client pleaded guilty to four counts at the Berri Magistrates Court.
Outcome at a glance
- Aggravated dangerous driving to escape a police pursuit (section 19AC) withdrawn
- Guilty pleas to four counts, with convictions recorded on each
- Dangerous driving (section 46 of the Road Traffic Act): discharged without further penalty on a two year supervised good behaviour bond under section 97 of the Sentencing Act 2017 (SA), with community service and alcohol and drug abstinence conditions, and 12 months disqualification
- Drink driving, category 2 (section 47B): $900 fine, the minimum for a first category 2 offence, and 6 months disqualification backdated to the date of the offence
- Driving unlicensed (section 74 of the Motor Vehicles Act 1959 (SA)): $700 fine
- Failing to stop (section 40H(5) of the Road Traffic Act): discharged without further penalty
- No term of imprisonment, immediate or suspended
Overview
Shortly after midnight, police activated their warning lights and directed our client to stop. He did not stop. He accelerated away for about 400 to 500 metres before police turned off their warning equipment and stopped following. There was no collision, no injury and no passenger.
He was over the limit at a category 2 reading, which is .08 or more but less than .15 grams of alcohol in 100 millilitres of blood. His licence had lapsed without his knowledge. He made no admission about why he did not stop, so the prosecution’s case on his intention rested on inference from his conduct.
Police charged him with:
- aggravated dangerous driving to escape a police pursuit under section 19AC of the Criminal Law Consolidation Act, aggravated by the alcohol reading;
- driving with a prescribed concentration of alcohol under section 47B(1)(a) of the Road Traffic Act; and
- driving unlicensed under section 74 of the Motor Vehicles Act 1959 (SA).
The challenge: an aggravated charge and a prosecution seeking imprisonment
Section 19AC applies to a person who, intending to escape pursuit by a police officer or to cause a police officer to engage in a pursuit, drives a motor vehicle in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to any person. Under section 5AA(1b)(c), the offence is aggravated if it is committed with a blood alcohol concentration of .08 grams or more in 100 millilitres.
The maximum penalty for an aggravated offence is 5 years imprisonment. On conviction, the court must disqualify the driver for at least 2 years, and that disqualification cannot be reduced or mitigated.
Early in the matter, the prosecution’s position was that imprisonment was appropriate. Its case had other difficult features:
- the police material included an alleged speed figure;
- it relied on driving after police stopped following; and
- the alcohol reading was charged twice, as the circumstance of aggravation on the section 19AC count and again as a separate drink driving count.
Our approach
1. Written representations on the section 19AC charge
We wrote to the prosecution challenging the section 19AC charge on four points:
- whether it could prove the specific intention to escape police, when that intention rested on inference;
- the speed allegations;
- its reliance on driving after police had stopped following; and
- the duplication between the circumstance of aggravation and the separate drink driving count.
The prosecution withdrew the section 19AC charge. It proceeded instead on dangerous driving under section 46 of the Road Traffic Act and failing to stop under section 40H(5). It agreed to allege no specific speed and no extreme speed, and recorded in its own facts that the vehicle data had not been verified.
2. Settling the factual basis
The agreed facts were confined to the 400 to 500 metres during which the police warning equipment was activated. Driving after police lost sight of the vehicle was excluded as uncharged conduct.
3. An evidence-led plea
We put our client’s rehabilitation before the Court in documents:
- his family had sought treatment for his alcohol use a month before the offence;
- he began treatment with his GP, a psychologist and alcohol and other drug counselling within days of his arrest;
- he completed a traffic offender intervention program before his first court appearance;
- he served eight weeks on supervised bail, and every alcohol and drug test was negative; and
- character references and a letter of apology.
The bundle was indexed and paginated. We prepared written submissions and appeared in person.
4. The sentencing principles
The submissions relied on four authorities:
- Good character can matter on sentence where the offence is an isolated lapse. In Ryan v The Queen [2001] HCA 21, Gummow J explained why ([68]).
- A sentencing court is entitled to consider all the conduct of the accused, but cannot take into account circumstances of aggravation that would have warranted a conviction for a more serious offence (The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at 389).
- To the extent that two offences contain common elements, it would be wrong to punish the offender twice for the elements that are common (Pearce v The Queen [1998] HCA 57 at [40]).
- In Laidlaw v Police [2008] SASC 340, an aggravated police pursuit in which police estimated speeds of about 100 km/h over about a kilometre ([6], [7]), the Supreme Court resentenced the driver and suspended the sentence ([41]). The Court also said that being pursued by police cannot, of itself, amount to an aggravating feature of the offending ([26]).
Outcome
The prosecution withdrew the aggravated section 19AC charge. Our client pleaded guilty to four counts, and convictions were recorded on each. The Berri Magistrates Court:
- for dangerous driving, discharged him without further penalty on entering into a two year supervised good behaviour bond, with community service and alcohol and drug abstinence conditions, and disqualified him for 12 months;
- for drink driving, fined him $900, the minimum for a first category 2 offence, and disqualified him for 6 months, backdated to the date of the offence;
- for driving unlicensed, fined him $700; and
- for failing to stop, discharged him without further penalty.
The prosecution had sought imprisonment, while not opposing suspension. No term of imprisonment was imposed, immediate or suspended. The Court accepted that our client had addressed his drinking before the Court required it, and before he was charged.
Key takeaways
- Section 19AC requires proof of a specific intention to escape police, or to cause a police pursuit. Where that intention rests on inference, testing it early can lead to the aggravated charge being withdrawn.
- Where a circumstance of aggravation duplicates a separate charge, the overlap can be raised in negotiation and on sentence.
- Rehabilitation that starts before the charge, proved by documents, carries weight that promises do not.
- Compliance on supervised bail can be evidence that a community-based order will work.
Related traffic results and guides
- Police pursuit charges in South Australia
- Police pursuit charge withdrawn: no conviction for a P-plater
- Dangerous driving in South Australia
- Reckless and dangerous driving
- Drink driving in South Australia
- Driving unlicensed
- Section 97 good behaviour bonds
- What are aggravated circumstances?
Speak with Talon Legal about police pursuit charges
If you have been charged after failing to stop for police, or with dangerous driving to escape a pursuit, get advice before you enter a plea. Book a same-day free 30-minute consultation or call (08) 7094 2021 to speak with a senior traffic lawyer, or read more on our Traffic Lawyers Adelaide page and our Berri Magistrates Court page.
This case study describes one matter. Every case turns on its own facts, and past results do not guarantee a similar outcome.
