Nicholas Richard Kloeden v SA Police No. SCGRG93/1895 Judgment No. 4312 Number of Pages 4 Criminal Law and Procedure General Matters - [1993] SASC 4312

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA NYLAND J

CWDS
Criminal law and procedure - general matters - appeal against penalty - appellant convicted of driving whilst disqualified from holding a licence - disqualified for PCA offence - spur of moment decision to drive - no pressing emergency - no exceptional circumstances - 44 year old businessman with no prior record other than PCA offence - Magistrate failed to give adequate weight to personal circumstances of appellant and circumstances of offending - sentence manifestly excessive - appeal allowed - sentence of imprisonment of one month reduced to five days already served. Motor Vehicles Act 1959 (SA) s.91. Coombe v Douris (1987) 47 SASR 324 and Eldridge v Bates (1989) 51 SASR
531, applied.

HRNG ADELAIDE, 10 November 1993 #DATE 7:12:1993
Counsel for appellant:     Mr P Amey
Solicitors for appellant:    Stratford and Co
Counsel for respondent:     Ms Baumanis
Solicitors for respondent: Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 NYLAND J This is an appeal against penalty. On the 29th day of July 1993 the appellant appeared in a Court of Summary Jurisdiction at Adelaide in the State of South Australia and pleaded guilty to the offence that on the 12th day of March 1993 at Rose Park in the said State he drove a motor vehicle on a road, namely Alexandra Avenue, whilst he was disqualified from holding or obtaining a licence contrary to provisions of s.91 of the Motor Vehicles Act 1959. 2. The defendant pleaded guilty. He was remanded to appear on 13/8/93 for submissions as to penalty. At that time his counsel requested a pre-sentence report and the appellant was further remanded to appear on 16/9/93. On that date the pre-sentence report dated 14/9/93 was provided to the court. At the conclusion of submissions the learned Special Magistrate imposed a sentence of imprisonment for a period of one month commencing forthwith. The appellant served five days of the sentence prior to being released on bail pending this appeal. 3. The appellant had been disqualified from holding or obtaining a driver's licence on the 4th day of August 1992 for a period of twelve months for an offence of exceeding the prescribed concentration of alcohol following his apprehension by a random breath test station. 4. The present offence occurred on 12th of March 1993. The appellant was due to leave for his holidays and was attempting to finalise a number of urgent business matters. He had not driven his car prior to the occasion on which he was stopped. He had been attempting to sell the vehicle prior to the driving in question. The appellant found himself in the situation of having no money in his possession at the time and he was unable to use his push bicycle to carry stock. The appellant panicked at his situation. He had not had a holiday for over ten years and was particularly worried about getting away on time and also obtaining the stock. The staff employed by him…

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: Nicholas Richard Kloeden v SA Police No. SCGRG93/1895 Judgment No. 4312 Number of Pages 4 Criminal Law and Procedure General Matters [1993] SASC 4312
Case: [1993] SASC 4312
Decision Date: 7 December 1993

CaseChat Overview and Summary

Nicholas Richard Kloeden appealed against the penalty imposed by a magistrate for driving while disqualified from holding a licence. Kloeden pleaded guilty to the offence and was sentenced to one month's imprisonment. The appeal centred on the severity of the sentence, which was deemed excessive by the court. Kloeden was a 44-year-old businessman with no prior criminal record, apart from the offence for which he was disqualified from holding a licence. The circumstances of the offence involved Kloeden driving due to a spur-of-the-moment decision while attempting to finalise urgent business matters before going on holiday. The court considered the appellant's personal circumstances, including his financial difficulties and the impact on his business, which were not adequately weighed by the magistrate.

The legal issues before the court were whether the magistrate erred in not finding exceptional circumstances that would have justified a suspended sentence and whether the sentence imposed was manifestly excessive. The court found that while the circumstances of the offence were not exceptional, the sentence was indeed excessive. The magistrate had failed to adequately consider the appellant's personal circumstances, including his financial situation and the nature of the offence, which was not driven by any pressing emergency or prior pattern of offending. The court emphasised the need for a magistrate to be ready to find exceptional circumstances, as per the case of Eldridge v Bates, and to consider each case in light of its own circumstances. In this case, the court concluded that the sentence was manifestly excessive given Kloeden's personal circumstances and the nature of the offence.

The court allowed the appeal and reduced the sentence to five days, which had already been served by the appellant. The reasoning was that the appellant had been sufficiently deterred by the experience of imprisonment and the seriousness of the crime had been adequately conveyed to him. The court exercised its discretion to impose a sentence that it deemed appropriate under the circumstances.

Orders