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Court of Criminal Appeal 21 September 2016

Priovolidis v R

[2016] NSWCCA 201

Traffic & driving
CRIMINAL LAW SENTENCE APPEAL DOUBLE PUNISHMENT

Citation: Priovolidis v R [2016] NSWCCA 201
Court: NSW Court of Criminal Appeal
Date: 21 September 2016
Judge(s): Gleeson JA; Price J; Hidden AJ

Background

The applicant pleaded guilty in the Campbelltown Local Court to two driving offences arising from events on 21 August 2013. The first was police pursuit contrary to s 51B(1) of the Crimes Act 1900 (NSW), which criminalises failing to stop for police and then driving dangerously. The second was aggravated dangerous driving occasioning grievous bodily harm contrary to s 52A(4) of the same Act, with the aggravating circumstance being that the applicant was driving to escape police pursuit.

In the District Court, Conlon DCJ sentenced the applicant to 2 years and 6 months for the police pursuit offence, and a non-parole period of 3 years with a 3-year additional term for the aggravated dangerous driving offence. The total effective sentence was a non-parole period of 3 years and 6 months, with a total term of 6 years and 6 months. The applicant also received shorter concurrent terms for driving while disqualified and taking a conveyance without consent.

On appeal, the applicant raised a single ground: that the sentencing judge had punished him twice for the same elements, given that both offences shared the conduct of driving dangerously while escaping a police pursuit.

  • Whether the sentencing judge erred by imposing double punishment for elements common to both the police pursuit offence (s 51B(1)) and the aggravated dangerous driving offence (s 52A(4)).
  • Whether the two offences arose from a single episode or incident, or from separate and discrete sets of conduct.
  • Whether the applicant was precluded from raising the double punishment argument on appeal, having not raised it before the sentencing judge.

Decision

Gleeson JA, with whom Price J and Hidden AJ agreed, identified the central factual question as whether the two offences arose from a single episode or from separate acts of conduct. After analysing the agreed statement of facts, his Honour concluded that the two offences did not arise from the same episode. The police pursuit offence covered dangerous driving during earlier stages of the chase, which ended when police finally terminated their pursuit at 10.44 am. The aggravated dangerous driving offence arose from conduct that began at 10.45 am, when a second marked police vehicle commenced a fresh pursuit, ultimately leading to a head-on collision with a 72-year-old driver travelling in the correct lane.

Gleeson JA found that the two offences were temporally and factually distinct: different police vehicles were involved, the pursuit had been terminated and recommenced, the locations differed, and the collision occurred as a separate and subsequent act. The principle against double punishment, established in Pearce v R (1998) 194 CLR 610, requires a sentencing court to avoid punishing an offender twice for the same criminal conduct where offences share elements. However, that principle is not engaged where the offences reflect genuinely separate conduct, even if the legal elements of one offence technically overlap with those of another.

The Court noted that the sentencing judge's remarks, read as a whole, reflected an implicit distinction between the two episodes rather than a treatment of them as a single incident. There was no occasion for the sentencing judge to address double punishment because the facts did not give rise to it.

On the procedural question of whether the point could be raised for the first time on appeal, Gleeson JA indicated that, if it had been necessary to decide, he would have accepted that the double punishment principle is so fundamental that a failure to raise it at first instance would not preclude an appeal. However, given the conclusion on the substantive ground, this question did not need to be resolved.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • The double punishment principle under Pearce v R is not engaged simply because two offences share statutory elements. The critical question is whether, on the facts, the offences arose from a single episode of conduct or from separate and discrete acts.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a police pursuit offence under s 51B(1) and aggravated dangerous driving under s 52A(4) can be sentenced separately without infringing the double punishment principle, provided the underlying conduct is factually distinct.
  • A break in pursuit, a change in the police vehicles involved, different locations, and a subsequent collision can collectively establish that two driving offences arose from separate episodes rather than a single continuous act.
  • No error was established in the sentencing judge's approach, even though his Honour's remarks at times addressed the facts globally, because the implicit distinction between the two episodes was apparent from the judgment read as a whole.
  • Where the double punishment principle is raised for the first time on appeal, Gleeson JA indicated it would likely remain open to the applicant to do so, given the fundamental nature of the principle, though this was left as an observation rather than a formal holding.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 51B, 52A, 33, 110, 154I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 32, 44
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport Act 2013 (NSW), s 54
- Customs Act 1901 (Cth), s 233B

Cases
- Pearce v R (1998) 194 CLR 610; [1998] HCA 57
- Johnson v R (2004) 205 ALR 346; [2004] HCA 15
- Postiglione v The Queen (1997) 189 CLR 295
- R v Whyte (2002) 55 NSWLR 252
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
- Portolesi v R [2012] NSWCA 157
- White v R [2016] NSWCCA 190