Hand, George v Abbott, John Albert [1981] FCA 85

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 prior 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 that occasion he was ordered to pay a fine of $200 and was further ordered to' be disqualified from holding a licence for a period of eight months. His dis- qualification had therefore been in operation for a period of about four months when he drove again.

The problem which arises in the case and from which the substantial ground of appeal arises is that it was the one occasion on 15 August 1980 which gave rise to both offences. It is not disputed that they were distinct offences, but what is said is that the magistrate took into account in relation to the offence of driving while disqualified the circumstances involved in the first offence. We understand it is not suggested that the magistrate treated the circumstance that the appellant was driving with excessive alcohol in his blood as a Matter of aggravation when imposing the penalty in relation to what we have called the second charge. Rather it is said that the same concomitant

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 necessity of 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 in the course of his statement of the

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 decide 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 a circumstance of

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 so, it would be proper to consider, in relation to that offence, circumstances of aggravation relating to the manner of driving. As 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 we find some error in the exercise of his discretion.

The penalties are in 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