Kroezen v Healey [2008] ACTSC 25

1. 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.

2. 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 difficulty reducing the mandatory period, or the default period - but he came before her Honour with six prior convictions for drink driving. Her Honour was, understandably, moved to wonder what it would take in order to get the message through to the appellant that this kind of conduct was both criminal and irresponsible. Her Honour determined to sentence him for the offence of being a special driver and repeat offender driving with more than the prescribed concentration of alcohol by convicting him and sentencing him to imprisonment for nine months. She did suspend that period of imprisonment after six months.

3. She imposed a good behaviour order in respect of the remaining three months, which included conditions that he give security of $1,000, be subject to the supervision of the Chief Executive of Corrective Services for 12 months, attend educational, vocational and other programs, et cetera, particularly in relation to drug and alcohol counselling. He was to enrol in and complete the ADFACT Sober Driver course upon release, and was disqualified from driving until a court orders otherwise. In respect of the drive while disqualified (charge CC07/9340), he was sentenced the maximum term of imprisonment of six months, to be served concurrently with the other sentence. To some extent that was, I suppose, a nominal imposition of the maximum penalty, without it adding to the penalty already imposed.

4. Before me there has been tendered some fresh evidence. First, fresh evidence consisting of two reports from Ms Lioulios - who is a doctor of psychology and a neuropsychologist - in the sense that those reports do confirm her Honour's perception that something drastic needed to be done to get through to Mr Kroezen. However, it does indicate that that which has happened, in her opinion at least, got through to him. Though, I suspect he needs more reminder than simply his most recent experience. I will address that in a moment.

5. Also tendered before me was the evidence of Ms Wedrat, the appellant's partner. Her evidence did raise a matter that was not put before her Honour. In that sense it is not fresh evidence, but it was, certainly, new evidence. It did indicate that the business, which the appellant and Ms Wedrat acquired in June 2007, is under stress as a result of his incarceration and, in effect, it is an accumulating stress which may have drastic consequences if it continues. I suppose there is still a question over the business as to whether it will be viable in the longer term, but it is certainly not being helped by Mr Kroezen being in prison. Of course, if imprisonment is the only available option, then the effect on others is, unfortunately, inevitable.

6. However, in this case I am told, and I read into the neuropsychological reports, two things. One is, of course, that Mr Kroezen's poor impulse control may not be entirely his fault, although it is not a question of fault so much as a question of facing the facts. If you have poor impulse control, Mr Kroezen, you do not drink with it. So, it seems to me that, given that new information, a different course can, and should, be followed.

7. What I propose to do, therefore, Mr Kroezen, is this: I propose to allow the appeal to an extent. Obviously, the convictions will stand. There is no appeal against the conviction and fine for the offence of driving an unregistered vehicle, so that stands.

8. In respect of the second matter, the conviction stands, the sentence of nine months' imprisonment will be confirmed but I direct that, after one month and 22 days of imprisonment, the balance of six months is to be served by way of periodic detention. That should remind you, Mr Kroezen, every week of what you have escaped from; that is, full-time imprisonment. Bear in mind too that it would be reimposed upon you, that is, full-time imprisonment, should you not attend as required at the periodic detention centre and compliantly obey directions that you are given.

9. The remainder of the sentence, which is suspended, is suspended upon terms similar to those her Honour imposed. That is, on condition that you comply with the core conditions of good behaviour and, further, give security of $1,000, to 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. I believe, Mr Kroezen, you need a bit more than the 12 months her Honour had in mind. I believe you need 18 months to make sure that you have understood the lesson that this should be teaching you. During that period you are to attend such courses, educational, vocational, rehabilitative, psychological, psychiatric or otherwise, or counselling, as you are 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.

10. I reiterate her Honour's direction that you enrol in and complete the ADFACT Sober Driver course upon your release, as and when directed. Her Honour disqualified you from driving until a court orders otherwise, and that is confirmed. I also direct that, for the period of 18 months, you abstain completely from consuming intoxicating liquor. That is a good excuse for anybody that wants to give you a drink, "Sorry, I'm on a Court order, I can't."

11. Practically every time you drink, you seem to have got into trouble. I understand you are not a, shall we say, continuous drinker but you do seem to get into trouble when you do have a session. For that reason, you are prohibited from consuming liquor for that period of 18 months from today.

12. So far as getting your licence back is concerned, that will be a matter for you to satisfy a court in due course that your attitude is such, that your behaviour is such, that you are no longer likely to be a danger on the roads. I make no comment about whether you can do that within or after the 18-month period or at any particular time. That will be up to you, on such advice that you may obtain from such legal advisers as you consult. That is the penalty which I substitute for that which her Honour imposed.

13. You can safely assume this, Mr Kroezen, that had it not been for the report of Ms Lioulios, had it not been for the evidence which Ms Wedrat gave, I would have thought that her Honour's penalty was pretty well-deserved, given the circumstances - the high reading and the previous history. It is impossible not to take that into account in determining what an appropriate penalty would be.

14. In relation to charge CC07/9340, I reduce the period of imprisonment, noting that the period was the maximum, and I uphold the appeal. Instead of the period of imprisonment imposed, I substitute a period of imprisonment of one month and 22 days, to be concurrent with the previous sentence.

15. Mr Kroezen, you have probably been told this before - the good behaviour order is, of course, to be obeyed strictly. Should you fail to do so, you are brought back to court and dealt with as if that good behaviour order did not exist. You have a suspended portion of a sentence of three months. The options for a court, when faced with a breach of a good behaviour order, are either to activate the suspended sentence or take such other action as may seem appropriate, but you can be re-sentenced.

16. Mr Kroezen, I hope you understand there is to be no more driving, because you are disqualified, and you are not, for 18 months, to drink at all. You may even find you get to like it.

17. Mr Kroezen, on release from here, you will need to report forthwith to Corrective Services at Eclipse House to arrange for ongoing supervision.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the respondent: ACT Director of Public Prosecutions