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Hermel v Police

Hermel v Police

Case [2000] SASC 34 24 February 2000

Criminal Liability

Sentencing

Breach of Contract

Unconscionable Conduct

Contempt of Court

Criminal Law

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HERMEL v POLICE
[2000] SASC 34

Magistrates Court

1................ DUGGAN J....... The appellant has appealed against a sentence imposed on him in the Elizabeth Magistrates Court in relation to traffic offences. He pleaded guilty to one count of driving under the influence of liquor and two counts of failing to stop his vehicle after it had been involved in two accidents. The three offences arose out of a connected series of incidents which took place on 24 April 1999 at Parafield Gardens.

The court was told that the appellant was driving his utility on the occasion in question when it was involved in an accident at a roundabout. The appellant drove on and was involved in a second collision with another vehicle approximately 300 metres from the site of the first accident. The appellant did not stop his vehicle and drove to his home at Parafield Gardens.
Police officers arrived at the appellant’s home shortly after these incidents. The appellant was unsteady on his feet, his speech was slurred and he could not stand without assistance. A breath analysis revealed a concentration of alcohol of .2 grams per 100 millilitres of blood.
The learned sentencing magistrate imposed one penalty for the three offences. The appellant was convicted and sentenced to imprisonment for one month. The magistrate ordered the sentence to take effect immediately. The appellant was also disqualified from holding or obtaining a driver’s licence for two years. The appellant has two previous convictions for driving while there was present in his blood a prescribed concentration of alcohol. However, these offences were committed in 1990 and 1992 respectively and the present offence was not a “subsequent offence” which attracted the higher penalty provided for by s 47 of the Road Traffic Act 1966.
In the course of his sentencing remarks the learned magistrate said:
“Making of orders for imprisonment for charges of driving under the influence in this State are quite rare. I approached the case on the basis that it is only in the most serious of cases that motorists are, in this State, imprisoned for offences of this nature. The occurrence of two serious incidents, followed by your failure to stop after each of them, when examined, in my opinion, as I said to your counsel at the outset, render this a case of great seriousness and, in my opinion, the matter merits a sentence of imprisonment.”
At the hearing of the appeal I raised with counsel a difficulty in relation to the form of the sentence. The maximum penalty for the particular category of failing to stop and report an accident which is charged in the present case is a fine of $2,000. The appellant was sentenced to a global penalty of imprisonment for one month. The power to impose one sentence for a number of offences (Criminal Law (Sentencing) Act 1988 s 18A) was introduced principally to overcome the often awkward and artificial process of constructing an appropriate punishment for a series of offences by…

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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Details

AGLC: Hermel v Police [2000] SASC 34
Case: [2000] SASC 34
Decision Date: 24 February 2000

CaseChat Overview and Summary

The case of Hermel v Police involved the appellant appealing against a sentence imposed on him by the Elizabeth Magistrates Court for traffic offences. The appellant had pleaded guilty to driving under the influence of liquor and two counts of failing to stop his vehicle after being involved in two accidents. The court had sentenced him to one month imprisonment and disqualified him from holding or obtaining a driver’s licence for two years. The appellant argued that the sentencing magistrate erred in imposing a global penalty for the offences and in considering the failure to stop offences as an aggravating factor for the driving under the influence offence. The court considered whether the magistrate had correctly applied the sentencing provisions and whether the penalty was appropriate.
The court found that the magistrate had erred in imposing a global penalty for offences that included those punishable by fine only. It held that an offence punishable by a fine cannot contribute to a composite penalty of imprisonment and that such a penalty would be inappropriate. The court also found that the magistrate had erred in considering the failure to stop offences as an aggravating factor for the driving under the influence offence. It held that separate charges for bad driving should be dealt with under those charges and excluded from consideration when fixing the punishment for the driving under the influence offence. The court held that the magistrate had erred in principle and that the appeal against sentence should be allowed. It set aside the sentences imposed by the magistrate and imposed a fine of $1,000 for the driving under the influence offence and $250 for each of the failure to stop offences. The court also ordered that the appellant be disqualified from holding or obtaining a driver’s licence for two years.

The final orders of the court were that the appeal against sentence be allowed, the sentences imposed by the magistrate be set aside, and in lieu thereof the appellant be fined the sum of $1,000 for the offence of driving under the influence and a fine of $250 on each of the offences of failure to stop after an accident. The appellant was also disqualified from holding or obtaining a driver’s licence for a period of two years from 22 December 1999.

Orders