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 at the time did not have a car and he made a spur of the moment decision to drive. 5. He left his premises at Rose Park but was stopped by a police officer after he had travelled only about 150 metres. There was no suggestion of him being stopped as the result of a driving offence or any bad driving behaviour. When spoken to by the police he was initially untruthful. He told the police that he had a licence but did not have it on him and he said that the motor vehicle belonged to his brother. He subsequently contacted the police and in due course admitted that he had committed the offence and would be pleading guilty. 6. The appellant is aged 44 years. He is well-educated and has been in business on his own account in the clothing trade for over 20 years. He was married in 1980 but divorced about 12 months prior to these events. He and his former wife have joint custody of their children. The children reside with their mother but the appellant has regular access to them. 7. The appellant is in a poor financial position. His business has suffered during the recession. The financial consequences of a term of imprisonment are severe. He owes his landlord a substantial debt. If he is unable to service the debt it is likely he will become bankrupt. The firm would then close down and his staff would be unemployed. The pre-sentence report mentions that the appellant had been a heavy drinker in the past but suggests that any alcohol problem had now substantially resolved. The appellant has no prior record apart from the PCA conviction for which he was disqualified from holding a licence. 8. The Magistrate, in sentencing the appellant, described the circumstances of the driving as "fairly typical". In considering the personal circumstances of the appellant, the Magistrate had regard to the contents of the pre-sentence report and once again referred to the case as "a fairly typical case of driving under disqualification". He purported to take into account the severe financial harm to the appellant's business and the disastrous consequences for the staff but in his concluding remarks he said "I am really quite unable to see that this is other than a fairly typical offence of its type and I do not consider sad as the consequences might be, that it is expedient to suspend the sentence which the offence calls for". 9. In the course of his remarks the Magistrate referred to Coombe v Douris
(1987) 47 SASR 324 and Eldridge v Bates (1989) 51 SASR 531. In Coombe v Douris the Chief Justice said at p.325:
    "The offence of driving while under disqualification is a
    most serious offence, as is indicated by the maximum penalty of
    six months imprisonment prescribed by the section. Its
    seriousness consists in the defiance of the law which it
    manifests and in the fact that it nullifies the effect of the
    order of disqualification which is imposed for the protection of
    the public. The effectiveness of orders of disqualification
    from holding or obtaining a driver's licence depends upon
    observance of them by the persons disqualified. If they are
    treated with contempt and ignored by the persons affected, the
    orders of the court designed to deter offenders and to protect
    the public are rendered ineffective. The ordinary punishment
    for driving under disqualification must be imprisonment. This
    is not to deny that circumstances may exist which would justify
    suspension of the sentence or some other order such as community
    service order. In my 4 opinion, however, the circumstances
    would have to be exceptional to justify a penalty other than an
    unsuspended sentence of imprisonment. A suspension of a
    sentence of imprisonment will rarely be justified in view of the
    primary deterrent purpose of the penalty." 10. And in Eldridge v Bates (supra) Bollen J said at p.540:
    "With all respect to those who speak of mechanical
    application of the principles or remarks in Coombe v Douris I
    say that the Chief Justice speaking in that case did not
    contemplate, nor say anything suggesting that he ever
    contemplated, any mechanical application of his remarks. A
    magistrate must have a lively readiness to find exceptional
    circumstances. But the circumstances justifying something less
    than imprisonment actually to be served must be exceptional.
    Perhaps the circumstances will be exceptional by reason of
    something in, or the combination of, personal circumstances of
    the offender. Perhaps they will lie in the circumstances in
    which the offence was committed. But they must be exceptional." 11. Counsel for the appellant argued that the magistrate had erred in not finding that the circumstances in which the appellant had committed the offence were exceptional circumstances which would have permitted the suspension of the sentence of imprisonment. He referred to the appellant's personal circumstances, his financial problems, the urgency of the driving and the fact that it was a spur of the moment decision. He submitted in the alternative that even if this court did not accept that submission, the period of imprisonment was manifestly excessive. 12. I have some difficulty in accepting that the circumstances surrounding the commission of this offence are exceptional. The offence of driving whilst under disqualification is a serious offence. The appellant is clearly an intelligent man. He was in the seventh month of a twelve month disqualification period and was well aware therefore that he was not permitted to drive. As the magistrate said in his remarks the driving 5 was not "a case of pressing emergency". I consider therefore that it was within the sentencing discretion of the magistrate to refuse to make an order for suspension of sentence. 13. I consider however that the sentence of imprisonment imposed by the magistrate was manifestly excessive in all the circumstances. Although the magistrate adverted to the necessity to look at each case in the light of its own circumstances, in my view he failed to give adequate weight to the personal circumstances of the appellant and the circumstances surrounding the driving. 14. The appellant in the course of the appeal provided a list of cases with respect to which penalties had been imposed for this particular offence. Whilst such list is of only limited assistance, it does indicate that a sentence of one month for a first offence is at the top of the range of penalties imposed. The maximum penalty prescribed for this offence is imprisonment for six months. In Coombe v Douris (supra) the sentence of driving under disqualification was on appeal reduced to one month and not suspended but the appellant in that case appeared to have a long record of prior offending, including a prior offence for driving whilst disqualified. Apart from the offence for which he was disqualified the appellant had no prior record, he was, to all intents and purposes, a respectable businessman, he acted on the spur of the moment and there is no suggestion that there was anything untoward in his driving behaviour. Taking into account all his personal circumstances and the circumstances relevant to the offence I do not believe this was the "fairly typical offence" to which the magistrate so constantly referred. I consider that the magistrate erred in imposing sentence in that he failed to give adequate consideration to the personal circumstances of the appellant and thereby imposed a sentence which was manifestly excessive in all the circumstances. There has therefore been an error in the sentencing discretion and it behoves me to exercise that discretion afresh. I have already referred to the circumstances of the offence and the personal circumstances of the appellant in some detail and it is unnecessary to repeat those matters. 15. The appellant, as I have mentioned, served a period of five days' imprisonment prior to being released on bail. I am told that this was a salutary experience for him. He had not been adequately prepared for the possibility of being required to serve a sentence of imprisonment and he was subsequently detained at the Yatala Labour Prison. I understand the behaviour of other prisoners during that period of confinement was such that the experience was particularly frightening. I am satisfied that the appellant has been taught a harsh lesson and the seriousness of this crime has been brought home to him. The "deterrent purpose" of the penalty referred to by the Chief Justice in Coombe v Douris (supra) has been satisfied. I consider, therefore, that in all the circumstances of this case, the appellant has suffered an appropriate term of imprisonment. I propose to allow the appeal to the extent that the sentence of imprisonment imposed by the learned Special Magistrate will be quashed and in lieu thereof a sentence imposed of five days' imprisonment, that sentence representing time that has already been served.