Evans v Friemann

Case [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

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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.

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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