The court will proceed to deliver judgment in this
matter.
I will now deliver the judgment and reasons
of the court.
The appellant, George Hand, was charged with two
offences occurring on 15 August 1980. One was an
offence under section
8(2)(a)
of the Traffic Act
1949
as amended of having
a concentration of alcohol
in his
blood equal to
80 milligrams or more of alcohol per
100 millilitres of blood, namely, 260 milligrams of of alcohol per 100 millilitres of blood. The other
was under section
55(8) of the same Act of driving
a motor vehicle whilst disqualified.
He pleaded guilty
to both offences and was fined in respect of the first he was sentenced to six weeks' imprisonment and his
and his licence was suspended for a pe iod of 12 months.
licence to drive was suspended for
a period of six
months.
1
The
appellant appealed only against the sentence
in respect of the second charge
and that appeal
was
dismissed by the Supreme Court.
The disqualification arose
from his only
p r i o r
offence, that of driving
a motor vehicle on 6 March
1980 while having the concentration
of
140 milligrams
of alcohol per
100 millilitres of
blood.
On
tha t
occasion he
was ordered to
pay a f i n e of $200 and was
further ordered to'be disqualified
from holding
a
l icence for
a
period of eight
months.
H i s d i s -
qual i f icat ion had
therefore been
in operation for
a period of about four
months when he drove again.
The
problem which
ar ises in the case
and
from
which the substantial
ground of appeal arises
i s
tha t i t was the one occasion on 15 August 1980 which
gave
rise
to both offences.
It
i s not disputed
that
they were
distinct offences, but
what
i s sa id is
that the magistrate took into account in relation
to the offence
of
drlving while disqualified the
circumstances
involved
in
the f i r s t o f f ence .
We
understand
i t
i s
not suggested that the magistrate
treated the circumstance that the appellant
was
driving
w i t h
excessive alcohol in his blood as
a
matter of aggravation when imposing the penalty in re la t ion to what we have called the second charge.
Rather
i t is aaid that the
same
concomltant
circumstances
were
taken into account twice.
L
The undisputed facts were that the appellant
lost control of the vehicle, possibly from excessive
speed, and that it slewed across the opposite line
of traffic onto the dirt fringe and into
a stormwater
drain, rolling over and eventually coming
to rest on
its roof. He was uninjured himself. He gave evidence
and explained
how it was that
he felt himself under
the necessityof driving the car on the particular
occasion so he could pay his staff.
His evidence
was to the effect that he had not driven at any other
time during the period of disqualification.
He said
that he would have known at the time he took the car that he had more than the permissible amount of alcohol in his blood.
The magistrate considered the circumstances at
some length and not unnaturally mentioned all the
relevant matters at the one time in the course of his
recitation of the facts. Unfortunately, he did not
draw any distinction when coming to penalty as to which
circumstances he regarded as being relevant to the
one charge and which of the circumstances he regarded
as relevant to the other.
It is therefore submitted
to us that we should assume that he took into account
in relation to the second charge all the adverse matters
mentioned m the course of his statement of the
circumstances and his reasons.
3
Whereas in the present case, two offences arise
out of the same or closely related circumstances, it
is important that courts not increase the penalty
in relation to either offence by taking into account
the same circumstances of aggravation
in relation to
both. In this regard
we agree with what was said by
the Full Court of the Supreme Court of South Australia
in Samuels
v Young (18 September 1978, unreported).
It will not always be easy to determine which circumstances should be regarded as applicable to the one offence and which are applicable to the other
or, if they are relevant to both, to declde to which
they should be related.
We imagine the situation has
for many years been dealt with
on a common sense basis
by magistrates, by their making sure one way or another
that they do not in fact increase the penalties by
duplication.
On a charge of driving whilst disqualified the
basic ingredients are, of course, (a) driving, and
(b) being disqualified at the time. If the
disqualification arose from an earlier case of driving
with excessive alcohol
in the blood, this may well be
a relevant circumstance for consideration in the
ordinary case, but where there is
a separate charge
dealing with this matter related to an occasion when
the defendant was driving whilst disqualified, it
would normally be more appropriate to relate the
two
similar offences and not to treat the alcohol content
of blood
on the later occasion as
circumstance of
4
aggravation in relation to the offence of driving
whilst disqualified.
It may be a matter of mitigation that the driving
during the period of disqualification was only for
a
very short distance and was conducted safely and, if
s o , it would be proper to consider, in relation to that
offence, circumstances of aggravation relating to the
manner of driving. A s the decision in Samuels
v Young
shows, the manner of driving can
be related to the
excessive alcohol charge if there were two concurrent
charges relating to the same circumstances, yet
no
specific charge related to bad driving.
Our difficulty in the present case is in being
sure what the magistrate did. We are not entitled
to remit the matter for his consideration unless
w
find some error in the exercise of his discretion.
The penalties are
m our view plainly not excessive.
We would agree with them. It seems probable to
us
that, notwithstanding the magistrate considered both
matters together, he did in the end perform a division
between the aggravating circumstances which ensured
that the appellant was not disadvantaged.
In this
connection it is worthy of some note that the maximum custodial penalty for driving while disqualified is six months and that the period of suspension of six
months, which the magistrate imposed, is the minimum
period provided for by the legislation. His Honour the
judge from which the present appeal comes seems
to have
taken a similar view of the situation.
5
In our opinion the appeal
should be dismissed, and
we so order.
6
Details
AGLC
Evans v Friemann [1981] FCA 85
Case
[1981] FCA 85
Decision Date
CaseChat Overview and Summary
The case of Evans v Friemann concerns an appeal against a sentence imposed on George Ham (the appellant) for two traffic-related offences. The appellant was found guilty of driving with a blood alcohol concentration exceeding the legal limit and driving while disqualified. The appeal pertains solely to the sentence imposed for the second charge. The matter was heard in the Federal Court of Australia, Northern Territory District Registry.
The central legal issue before the court was whether the magistrate erred in his sentencing by considering the same circumstances in relation to both charges, potentially leading to an increased penalty. Specifically, it was argued that the magistrate had taken into account the appellant's previous offence, which involved driving with excessive alcohol, as an aggravating factor for the charge of driving while disqualified. The court had to determine whether this constituted a misapplication of the law and whether it warranted the appeal's success.
The court examined the magistrate's sentencing process and noted that while the circumstances were presented together, the penalties imposed were within the statutory limits. The court referenced the Full Court of the Supreme Court of South Australia's decision in Samuels v Young, which emphasized the need to avoid increasing penalties by considering the same circumstances for multiple charges. The court concluded that although the magistrate did not explicitly distinguish between the circumstances relevant to each charge, it was likely that he had effectively separated them in his sentencing. Therefore, the penalties were deemed appropriate and the appeal was dismissed.
In conclusion, the Federal Court of Australia upheld the sentence imposed on the appellant and dismissed the appeal. The court found that there was no clear evidence of the magistrate improperly considering the same circumstances for both charges, and that the penalties were not excessive.