HERMEL v POLICE No. SCGRG-00-26 [2000] SASC 34

2 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.

3 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.

4 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.

5 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."

6 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 means of concurrent or cumulative sentences. Section 18A authorises a total penalty which might exceed the maximum penalty for any one of the offences to which the global sentence is passed, but the sentence cannot exceed the total of the maximum penalties which could be imposed in respect of the individual offences.

7 It is my view that in those cases where a global term of imprisonment is imposed, the individual offences must be punishable by a term of imprisonment. An offence punishable by way of a fine only cannot be one of the offences in respect of which a term of imprisonment is imposed. It would be quite wrong for such an offence to contribute to a composite penalty of imprisonment. The effect would be to impose a term of imprisonment for an offence punishable by a fine, albeit that the sentence of imprisonment, being a global penalty, was passed in respect of a number of offences. A sentence of imprisonment is imposed in respect of each of the offences notwithstanding that the offences are grouped together for the purpose of the composite sentence and it is impossible to identify the contribution which each of them has made to the total.

8 The inappropriateness of this course is also illustrated by the decision in R v Major [1998] SASC 7089; (1998) 70 SASR 488 where it was held that the proper approach to sentencing under s 18A of the Criminal Law (Sentencing) Act is to consider the sentence which would have been imposed for each offence separately and then consider whether the sentences would have been imposed cumulatively or concurrently. Of course the principle of totality would also have to be taken into account before finally fixing the penalty.

9 It follows that the learned magistrate erred in passing a global sentence of imprisonment on the appellant for offences which included the two offences of failing to stop after an accident. As I have pointed out, these two offences were punishable by fine only.

10 Even if a global sentence has not been imposed, I am of the view that the offences of failing to stop after an accident, having been charged as separate offences, could not have been taken into account as an aggravating feature in determining whether or not a sentence of imprisonment should have been imposed in respect of the offence of driving under the influence of alcohol. The effect of charging the offences of failure to stop after an accident was to separate them from the conduct involved in the offence of driving under the influence and to render the appellant liable to the imposition of fines in relation to this aspect of his conduct.

11 The consequences of proceeding in this manner were discussed in Samuels v Young (1978) 19 SASR 406. The defendant in that case was charged on a complaint which contained two counts, driving a motor vehicle whilst there was present in his blood the prescribed quantity of alcohol and driving a motor vehicle at a speed which was dangerous to the public. The interrelationship between the two offences was considered by the Full Court in the context of sentencing. Their Honours said (409):

"As regards sentence the broad rule is that a defendant is not to be punished twice for the same act or conduct. In principle, it is open to the court to take bad driving into account as a circumstance of aggravation in fixing the punishment for an offence under s 47 or s 47b. This will normally be done if there is no separate charge covering the bad driving. Where, however, there is a charge specifically dealing with the bad driving or some aspect of it, the court ought to deal with the bad driving or the particular aspect of it under that charge, and exclude it from consideration when fixing the punishment for the offence under s 47 or s 47b. In particular, where there is a second count alleging bad driving and that offence carries a minimum penalty, as in the present case, it would generally be wrong for the court to take the bad driving into consideration when fixing the punishment for the offence under s 47 or s 47b."

12 In McDougall v Betts (1979) 21 SASR 429 the Full Court commented on the previous decision in Samuels v Young in the following passage:

"The guidance afforded by that case, however, must be understood in the context of the case that was before the Court. It was a case in which, upon any view of the facts, imprisonment was not an appropriate penalty. In affirming the principle that the manner of driving may be taken into account in a charge under s 47 or s 47b of the Act as a circumstance of aggravation, when the manner of driving has not itself been dealt with as a separate charge, it envisages that the circumstances of aggravation might properly be reflected in the amount of the fine or the period of disqualification or both; but to merge the manner of driving, bad as it might be, with a relatively minor breach of s 47 or s 47b i.e. when the level of consumption of alcohol is relatively low, and thereby to treat an offence under those sections as sufficiently serious to merit imprisonment, is apt to lead to error, by distorting the essential feature of the conduct thereby proscribed.

Notwithstanding the guidance given in Samuels v Young (1978) 19 SASR 406, it still seems to be the practice in courts of summary jurisdiction to withdraw the 'bad driving' charges, upon a plea to a charge under s 47 or s 47b. It seems to us that in some cases, particularly those which might call for a discretionary sentence of imprisonment, a court will be in a better position to evaluate the seriousness of a breach of those sections - which as we have said are primarily aimed at the excessive consumption of alcohol by drivers - if the bad driving is punished as a separate offence, provided, of course, that the offender is not punished twice for the same conduct. But again, there can be no general rule of law, or of practice, and each case must be prosecuted and dealt with according to its own facts. There may be cases in which the court cannot properly evaluate a breach of s 47 without regard to the manner of driving. Kester v Marsh (1979) 21 SASR 348 was such a case, where there was no evidence of the blood alcohol level, and there may be others."

13 In my view s 18A does not overcome the difficulty discussed in these cases. Apart from the question of the legality of using s 18A to pass a global sentence of imprisonment for a series of offences, some of which cannot be punished individually with imprisonment, it seems inappropriate to use an offence which is specifically charged and which is punishable by a fine only in order to evaluate the seriousness of another offence which is punishable by imprisonment. I think it can also be said that the offence of failing to stop after an accident is more remote from the commission of the offence of driving under the influence than the element of dangerous driving which was under consideration in Samuels v Young.

14 It is clear from his remarks that the learned magistrate took into account the offences of failing to stop after an accident in evaluating the seriousness of the offence of driving under the influence and regarded this aspect of the appellant's conduct as one of the matters which raised the offence of driving under the influence to the level of seriousness which justified an immediate sentence of imprisonment. In my view this involved an error of principle which requires this court to set aside the global penalty and consider the matter afresh.

15 If the circumstances of the offence of driving under the influence in this case are restricted to the fact that the appellant was driving under the influence of liquor; that his blood alcohol level was .2 grams per 100 millilitres of blood; that he was involved in the two accidents and that he had the previous driving record to which reference has been made, then I think the case come close to the borderline of an immediate term of imprisonment. However, it is also relevant to take into account the fact that the appellant had been consulting a psychiatrist prior to the commission of these offences. Dr Raeside's report refers to the appellant being involved in a motor vehicle accident on 20 November 1998 which resulted in him suffering physical disabilities and psychiatric consequences. In Dr Raeside's view the appellant developed an acute stress disorder and a major depressive disorder as a result of the accident. He was suffering from the depressive disorder and taking medication for it at the time of the present matters. He is still suffering from this condition at the present time.

16 In the light of these considerations I have reached the conclusion that the appropriate penalty in this case is a fine close to the maximum for the offence of driving under the influence and further fines of $250.00 on each of the offences of failing to stop after an accident.

17 For these reasons the appeal against sentence will be allowed, the sentences imposed by the magistrate will be set aside and in lieu thereof the appellant will be fined the sum of $1,000 for the offence of driving under the influence and a fine of $250.00 on each of the offences of failure to stop after an accident. The appellant will be disqualified from holding or obtaining a driver's licence for a period of two years from 22 December 1999.