Evans v Friemann

[1981] FCA 85

IN THE FEDERAL COURT OF AUSTRALIA ) )

NORTHERN TERRITORY DISTRICT REGISTRY	)	No. NTG. 27 of 1980
)

DIVISION	GENERAL	)
BETWEEN:

GEORGE HAM) Appellant

and

JOHN ALBERT ABBOTT Respondent

FOX, MUIRHEAD, REASONS FOR JUDGMENT 5 FEBRUARY 1981

TEMPORE) McGREGOR (EX JJ

FOX J:	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