Jersey Unreported Judgments

2001/153A

ROYAL COURT

(Samedi division)

23^rd July 2001

Darren Stuart Lewis

-v-

The Attorney General

Appeal by Darren Stuart Lewis against a £300 fine with 3 months disqualification from driving, imposed by the Magistrate's Court on 14^th June 2001, following a guilty plea to:

Appeal allowed; sentence quashed; appellant granted absolute discharge.

Advocate R. Juste for the Appellant.

Advocate C. Yates on behalf of the Attorney General .

JUDGMENT

THE BAILIFF:

1.        This appellant pleaded guilty to an offence of speeding and was sentenced by the Magistrate on 14^th June 2001 to a fine of £300 and to disqualification for holding a driving licence for 3 months.  He admitted driving his car along Victoria Avenue on 11^th March, at about 1pm, at great speed.  The police evidence was that as he passed the officer at the western end of the lower park a speed of 86 miles per hour was recorded.  Traffic was moderate at the time and there were no other vehicles in the immediate vicinity, although it was beginning to rain and the road surface was damp. 

2.        Ordinarily, it would be difficult to say that the penalty imposed by the Magistrate was excessive in any way.  Indeed, no appeal was brought against the fine.  The appellant appealed only against the disqualification, which counsel submitted was manifestly excessive in the unusual circumstances of the case.  

3.        Those unusual circumstances were that at the time when the speed was recorded the appellant's three week old baby was choking in the back of the car.  The appellant was panicking and was desperate to get her to the Accident and Emergency department of the General Hospital.  By the time the appellant was stopped by the police on the Esplanade, this crisis had passed because the child had vomited and released the blockage in her throat and the appellant had decided to take her directly to his General Practitioner instead.  

4.        This account could not be directly corroborated by medical evidence, but there was a letter before the Magistrate from the Consultant Paediatrician at the General Hospital confirming that the child did suffer from a medical condition which predisposed her to choking episodes.  It is important to state that the factual background was accepted by the Magistrate and it was against  that background that he passed sentence.  The appellant panicked when he noticed his baby daughter choking and put his foot down on the accelerator in order to get her to the hospital as soon as possible. 

5.        In passing sentence, the Magistrate stated; "I find this quite a difficult decision to make because although I accept that you were motivated by concern for your daughter, I cannot see that any reasonable concern could possibly justify somebody driving at 86 miles an hour in a 40 mile an hour zone, in conditions which are wet."  It is that reasoning which Miss. Juste, who appears for the appellant, contends is unreasonable in all the circumstances of the case. 

6.        We have some sympathy for the Magistrate because the speed at which the appellant was driving was grossly excessive.  Even in an emergency there are limits beyond which a driver should not go.  For example, he should not expose pedestrians or other drivers to risk by driving dangerously, or even carelessly in the crisis of the moment.  But there is no evidence here of any such risk.  Indeed, the prosecution abandoned a charge of careless driving in the Magistrate's Court.  The road was, it seems, clear and unobstructed when this high speed was reached. 

7.        We think that this is a case where the Magistrate, having heard from counsel what the mitigation was, might well have taken it upon himself to hear evidence as to the precise circumstances, because they were certainly very unusual.  But he did not take that course and we are, accordingly, bound by his acceptance that the appellant responded to an emergency caused by the baby choking in the back of his car. In those circumstances we think that any reasonable father would have done exactly what the appellant did and put his foot down with a view to getting the child to hospital as soon as possible.  In the very unusual circumstances of this case no moral blame, in our judgment, attaches to the appellant at all.

8.        We accordingly find that the Magistrate's decision was unreasonable in all the circumstances of the case.  We allow the appeal and logic compels us to quash the entire sentence, including the fine.  There will be substituted an absolute discharge and Miss. Juste you will have your costs here and below.    

Authorities

Pipon-v-AG (16^th August 1999) Jersey Unreported; [1999/143];

Weaver-v-AG (10^th October 1994) Jersey Unreported;

Ashton-v-AG (15^th June 1998) Jersey Unreported; [1998/98];

AG-v-Kane (1965) JJ 501.

DPP-v-Bristow [1998] RTR - February-March 100.

Pannetier-v-AG (11^th April 1994) Jersey Unreported.