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
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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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.