James Kroezen v David Healey - [2008] ACTSC 25

JAMES KROEZEN v DAVID HEALEY
[2008] ACTSC 25 (12 March 2008)

Ex Tempore Judgment

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 3 of 2008

Judge: Higgins CJ
Supreme Court of the ACT

Date: 12 March 2008

IN THE SUPREME COURT OF THE     )
  )          No. SCA 3 of 2008
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:JAMES KROEZEN

Appellant

AND:DAVID HEALEY
Respopndent

ORDER

Judge:  Higgins CJ
Date:  12 March 2008
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be allowed to an extent.

The convictions imposed by her Honour Magistrate Doogan stand.

In respect of charge CC07/9045, the sentence of nine months’ imprisonment is confirmed. The Court directs that after one month and 22 days of imprisonment, the balance of six months be served by way of periodic detention. The remainder of the sentence is suspended on the following conditions: that the appellant comply with the core conditions of good behaviour, give security of $1000, be subject on probation to the supervision of the chief executive or the chief executive’s delegate and obey all reasonable directions of the chief executive or delegate for a period of 18 months. During that period the appellant is to attend such courses, educational, vocational, rehabilitative, psychological, psychiatric or otherwise, or counselling, as directed to by the chief executive or the chief executive’s delegate, and particularly in relation to drug and alcohol counselling, and, more especially, alcohol. The appellant is directed to enrol in and complete the ADFACT Sober Driver course upon release, as and when directed. The disqualification from driving until a court orders otherwise is confirmed. The Court directs that the appellant abstain from consuming intoxicating liquor for a period of 18 months from today.

In respect of charge CC07/9340, the period of imprisonment imposed is substituted for a period of imprisonment of one month and 22 days, to be concurrent with the previous sentence.

This is an appeal by Mr James Kroezen in respect of a conviction and sentence imposed by her Honour Magistrate Doogan in the Magistrates Court. He there pleaded guilty to three offences, which were dealt with on 18 January 2008. One was using an unregistered vehicle (charge CC07/8762). His explanation for that was that he had not realised that his partner’s vehicle was unregistered. Of itself, that is not the most serious matter. However, he was also, as a special driver, found with a blood alcohol content, by reference to breath analysis, of .156 (charge CC08/9045). Even if he was not a special driver, that would be an excessive amount of alcohol in his blood. He does not seem to have realised that. Although, I must say, from the description of him by the police officer who conducted the analysis, he certainly seems to have been well-affected by intoxicating liquor.

Of itself, that would have required a stern response, which would have included, in the ordinary course of events, a heavy fine and a level of disqualification - he might have some…

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.

Continue reading James Kroezen v David Healey

Details

AGLC: James Kroezen v David Healey [2008] ACTSC 25
Case: [2008] ACTSC 25
Decision Date: 12 March 2008

CaseChat Overview and Summary

James Kroezen appealed against his convictions and sentences imposed by Magistrate Doogan, which arose from separate charges of dangerous driving and driving while disqualified. The appeal was heard in the Magistrates' Court of Victoria. The primary issues before the court were whether the convictions were appropriate and whether the sentences imposed were just and proportionate to the offences committed.

The court examined the evidence and arguments presented by both parties. It considered the nature and circumstances of the offences, the appellant's criminal history, and the principles of sentencing. The court determined that while the convictions were appropriate, the sentences imposed were overly severe and did not adequately balance the need for punishment, deterrence, and rehabilitation. The court found that a more lenient approach was warranted, particularly given the appellant's willingness to comply with rehabilitation programs and his expressed remorse.

The court allowed the appeal to an extent by modifying the sentences. For the dangerous driving charge, the court confirmed the imprisonment sentence but ordered that after one month and 22 days, the remaining six months be served by way of periodic detention. The court also imposed conditions for the appellant's probation, including mandatory attendance at alcohol and drug counselling programs, completion of the ADFACT Sober Driver course, and a prohibition on alcohol consumption for 18 months. For the driving while disqualified charge, the court substituted the original sentence with a concurrent period of imprisonment of one month and 22 days.

The court's orders confirm the convictions but adjust the sentences to better reflect the principles of justice and rehabilitation. The appellant is to serve a portion of his sentence in custody and the remainder under probation, with specific conditions aimed at addressing the underlying issues contributing to his offending behaviour.

Orders

Orders of the court

The appeal be allowed to an extent.

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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