[2006]JRC147
ROYAL COURT
(Samedi Division)
17th October 2006
Before : |
Sir Philip Bailhache, Kt., Bailiff, and Jurats Georgelin and Allo. |
The Attorney General
-v-
Jeronimo Hernandes
Appeal by the Prosecution against the sentence of 15 months' disqualification from driving passed by the Magistrate's Court on a guilty plea to a charge of:
1 count of: |
Being drunk in charge of a motor vehicle contrary to Article 28 (1) (b) of the Road Traffic (Jersey) Law, 1956. |
Mrs S. Sharpe, Crown Advocate.
Advocate S. E. Fitz for the Defendant.
JUDGMENT
THE BAILIFF:
1. This is an appeal by the Attorney General pursuant to Article 21 of the Magistrate's Court (Miscellaneous Provisions) (Jersey) Law, 1949 questioning the proceeding before the Assistant Magistrate on 14th August 2006, when the defendant, Jeronimo Hernandes was sentenced for an offence of driving after consuming an excessive amount of alcohol contrary to Article 28 (1) of the Road Traffic (Jersey) Law 1956, to a fine of £400, or 1 week's imprisonment in default, and disqualification for holding a driving licence of 15 months.
2. The material facts can be shortly stated. The defendant was involved in a road traffic accident and breathalysed by the police. He was later found to have a concentration of alcohol of 52 microgrammes per 100 millilitres of breath and was over the limit prescribed by law.
3. He was presented before the Assistant Magistrate when the facts were outlined by the Centenier. The Centenier concluded his address by stating "There is no trace, sir", thereby indicating that the defendant had no previous convictions recorded against him.
4. Unfortunately, through no fault of the Centenier, who had been misinformed, this was incorrect. What had happened was that the police officer conducting the requisite computer check had searched under the name Hernandez instead of Hernandes.
5. In fact the defendant had three previous convictions for driving after consuming excess alcohol. In 1975 he was fined £40 and disqualified for 12 months. In 1990 he was sentenced to 4 days' imprisonment and disqualified for 3 years. In 1998 he was fined £500 and disqualified for 3 years.
6. Having been convicted of an offence under Article 28 (1), within the last 10 years the defendant should have been disqualified for a minimum period of 3 years. Article 28 (2) provides:
"A person convicted of an offence under paragraph (1) shall, unless the court for special reasons think fit to order otherwise and without prejudice to the power of the court to order a longer period of disqualification, in the case of a first offence, be disqualified for a period of 12 months and in the case of a second or subsequent offence committed within 10 years of the last such offence, for a period of 3 years, for holding or obtaining a licence."
7. Counsel for the Attorney General accordingly submits that the Magistrate's decision was wrong in law and should be set aside. The Court is invited to substitute for the 15 months' period of disqualification a period of 3 years.
8. Advocate Fitz who appeared for the defendant opposes the appeal on the ground that there was no error of law on the part of the Assistant Magistrate. She submits that there was an error of fact on the part of the Crown when the background was outlined and that the Magistrate imposed a perfectly lawful and proper sentence on the basis of the facts presented to him. Counsel illustrated the argument by referring to a hypothetical situation, where the Magistrate is misinformed as to the level of a defendant's intoxication and imposes a lesser penalty than would have been the case if the true facts had been presented to him. In such circumstances counsel submitted it would not be open to the Attorney General to appeal by way of case stated under the procedure set out in Article 21 of the 1949 law.
9. While that argument may have considerable merit in the context of the hypothetical situation to which counsel has referred, it is not, in our judgment, of equal force given the underlying facts of this appeal. Article 21 (1) of the 1949 law provides:
"Any person who was a party to any proceeding before the Magistrate's Court or is aggrieved by the conviction, order, determination or other proceeding of the Magistrate's Court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the Magistrate to state a case for the opinion of the Royal Court on the question of law or jurisdiction involved:
Provided that a person shall not make an application under this Article in respect of a decision which by virtue of any enactment is final."
10. The relevant words of this paragraph are "on the ground that it, (i.e. the order), is wrong in law or is in excess of jurisdiction". The Assistant Magistrate had no jurisdiction to impose a disqualification of less than 3 years on the defendant. The legislature has seen fit to limit the discretion of the Court by requiring that a defendant who has been convicted during the previous 10 years of an offence under Article 28 must be disqualified for a minimum period of 3 years.
11. The Assistant Magistrate, albeit mistakenly, exceeded his jurisdiction by imposing a disqualification of 15 months. The situation is no different in principle from that which obtains where a magistrate imposes a penalty greater than that permitted by the statute. Having exceeded his jurisdiction the Assistant Magistrate committed an error of law and his order cannot be allowed to stand.
12. In considering what period of disqualification should be substituted counsel for the defendant addressed a number of submissions to us on the basis that the Court should not act to the detriment of a defendant to correct an error made by the prosecution. It would, counsel submitted, be unfair to the defendant to expose him to double jeopardy because of an error affecting his sentence caused by a mistake on the part of the prosecution. Counsel referred to a passage from Taylor on Appeals, Sweet and Maxwell London 2000 p.492.
"In deciding whether to increase a sentence and if so by how much the court will also take into account the double jeopardy principle. This sets out the Court's recognition of the defendants anxiety and trauma of being re-sentenced under the reference procedure."
It is this element in particular that distinguishes the Court's approach to Crown appeals from defence appeals.
13. In Attorney General's reference No 15 of 1992/1993 14 Criminal Appeal Reports Sentencing 324 Lord Taylor CJ stated that
"Where the court has to consider whether to alter the sentence or not it must have in mind that to vary a sentence that has already been passed on which the offender has become used to accepting as his desserts to something more severe is in itself a form of punishment. Some allowance needs to be made for the fact that the reference causes suspense and anxiety a second time for the offender whilst he is waiting to know the outcome".
14. Counsel drew further support for this principle from a decision of this Court in AG -v- Cassin [2006] JRC 050 where the Court erroneously imposed a suspended sentence of youth detention which the statute did not empower it to do. The Court exercised its inherent jurisdiction to treat the sentence as a nullity and to substitute another sentence in its place.
15. The Court stated:
"Counsel for the defendant has argued persuasively that any sentence which we now impose should not place the defendant in a worse position than he was when he left the Court having been sentenced.
In the circumstances of this case we accept that submission. Cassin left the Court last week in the knowledge that if he behaved himself during the next two years he would suffer no further penalty. The only sanction available to us which would achieve the same effect is a binding over order. Ordinarily, this would be completely inappropriate for the serious offence to which the defendant pleaded guilty, but in the unusual and unfortunate situation which the Court has created for itself it is the only solution.
16. Counsel also referred to a number of decisions of the English Court of Appeal when considering the power of the Crown Court to increase a sentence in the exercise of its jurisdiction under section 155 of the Powers of Criminal Courts Sentencing Act 2000, to vary a sentence imposed within the preceding 28 days. Some of these cases are helpfully collected in Blackstones Criminal Practice 2003 at p.1514. The learned authors conclude at paragraph 18.37:
"That the obvious use of the power in the PCC SA 2000 Section 155 is to correct minor errors made by the court when passing sentence. It is also clear that the power may be used to benefit the offender by reducing his sentence if, on reflection, the judge considers that he was originally too harsh".
17. Whether the power should be used substantially to increase sentence has been a matter of some controversy but recent decisions indicate that in appropriate circumstances it may be so used. The important distinction to be drawn between all these cases and the instant appeal is that in the former the Court was exercising a discretion which was either unfettered or subject to constraints within which the Court was acting.
18. What counsel for the defendant is effectively asking us to do is to impose a sentence which is not permitted by law. The legislature has decreed, for very understandable reasons of public policy, that those who expose the public to risk by driving motor vehicles after consuming an excessive amount of alcohol should be disqualified for holding a driving licence. Where the offender has committed the same offence in the preceding 10 years the court is mandated, unless there are special reasons to order otherwise, to impose a disqualification of not less than 3 years.
19. Counsel did not suggest that there were any special reasons to order otherwise in this case and the court accordingly has no discretion in the matter. Furthermore, we do not think the defendant will in any event suffer any injustice. This is the fourth time that he has been convicted of driving a motor vehicle after consuming an excessive amount of alcohol. He could hardly have complained in our view if the Magistrate, being in possession of the true facts as to his criminal record, had imposed a disqualification which exceeded three years. We think it is unfortunate that the police officer investigating the record of the defendant made this simple error and we hope that greater care will be taken in future to ascertain from official documents, for example the driving licence or certificate of insurance, how a defendant's name is spelt. Having said that, the appeal must succeed. The disqualification of 15 months is quashed and we substitute therefore a period of disqualification of three years.
20. The necessity for this appeal was in no way the fault of the defendant and we accordingly order the prosecution to pay out of public funds the costs of the defendant.
Authorities
Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949.
Road Traffic (Jersey) Law 1956.
Taylor on Appeals Sweet and Maxwell London 2000 p 492.
Criminal Appeal Reports Sentencing 324.
Powers of Criminal Courts Sentencing Act 2000.
Blackstones Criminal Practice 2003 at p 1514.