Jersey Unreported Judgments

ROYAL COURT

(Samedi Division)

22 February 1999

Before: Sir Philip Bailhache, and

Jurats Rumfitt and de Veulle

MAGISTRATE'S COURT APPEAL

Richard John Hansford

-v-

AG

Appeal against a sentence of 30 months disqualification from driving ( with further sentencing after the preparation

of background reports) passed on 17 December 1998, following a guilty plea to:

1 count of: driving a motor vehicle after consuming alcohol in excess of the prescribed limit, contrary to Article 16(a) 1 of the Road Traffic (Jersey) Law 1956 ( as amended ).

Appeal allowed; sentence quashed; sentence of 24 months’ disqualification from driving substituted.

A D Robinson, Esq., Crown Advocate

Advocate R Tremoceiro for the Appellant

JUDGMENT

THE BAILIFF: On 17 December 1998, this Appellant pleaded guilty to an offence under the Road Traffic Law, of driving a motor vehicle with excess alcohol in his body.

The amount of alcohol in his body was considerable. He had consumed alcohol during the course of the previous evening, and during the early hours of Sunday 4 October. At 10.15 on that morning he went to the home of his estranged wife, and was later arrested and taken to Police Headquarters where the breath/alcohol reading was found to be 101micrograms per 100 millilitres of breath. He was in short some three times over the legal limit.

On 17 December, the facts having been outlined, the Relief Magistrate was invited to consider adjourning the case so that a background report could be prepared. The Relief Magistrate agreed to do so, but took it upon himself to impose an immediate disqualification of 30 months before remanding the case for the preparation of the social enquiry report.

As the argument unfolded during the course of this Appeal it became clear that the principal ground of complaint was that Defence Counsel appearing for the Appellant was not given the opportunity to mitigate before the disqualification of 30 months was imposed.

The proceedings unfolded, as appears from the transcript, in this way:

Crown Advocate Robinson conceded that he felt disquiet at the procedure adopted, and we agree. A disqualification is an important part of the sentence imposed for an offence of this nature, and it is of fundamental importance that an accused person, or Counsel on his behalf, should have the opportunity to say anything which he wishes to say in mitigation of sentence before that sentence is imposed.

Defence Counsel for the Appellant told us that it was becoming increasingly common in the Magistrates Court, for a sentence of disqualification to be imposed in advance of the remaining part of the sentence. We desire to say that this should not be an invariable practice. Generally speaking, the Magistrate should wait until he is in possession of all the available material- including the social enquiry report - if one has been ordered, before reaching a conclusion on the appropriate sentence to be imposed.

We recognise that in certain circumstances, for example, where the Magistrate believes that the accused person is an alcoholic, or where there is evidence of previous offending of this type, the Magistrate may consider that it is in the public interest that a disqualification should be imposed immediately, even if the case is to be adjourned for the preparation of a background report or for some other reason.

In such circumstances the Magistrate should warn the accused or Counsel appearing for him that he is minded to impose a disqualification immediately, and invite submissions, both on the desirability of so doing and in mitigation of the offence before the term of any disqualification is fixed. That clearly did not happen in this case.

Mr Tremoceiro submitted that the Appellant felt aggrieved at the summary nature of the sentencing process, while acknowledging that he had committed a serious offence. Given the unsatisfactory nature of the procedure adopted, the Court proposes to allow the Appeal, to quash the sentence imposed by the Relief Magistrate on 17 December 1998, and to substitute therefor a disqualification of 24 months.

Authorities

Road Traffic (Jersey) Law 1956: Article 16A

Wilkinsons Road Traffic Offences (18^th Ed’n) paras 4.392 to 4.395 and sentencing guidlines.

Mercier -v- Attorney General (1989) JLR Note 10

Attorney General -v- Whiteford (1991) JLR Note 12

Rodrigues -v- Attorney General (21 April 1997) Jersey Unreported

Temple -v- Attorney General (1 April 1998) Jersey Unreported [1998.067]