Jersey Unreported Judgments

[2007]JRC136

ROYAL COURT

(Samedi Division)

13^th July 2007

The Attorney General

-v-

Jose Carlos Baroca Figueira

Sentencing by the Inferior Number of the Royal Court following a guilty plea to:

Age:  31

Plea: Guilty (Count 2).  Not Guilty (Count 1) - no evidence on this count.

Details of Offence:

31 year old defendant of previous good character save for minor motoring matters dealt with at Parish Hall level.  On the night preceding the fatal crash he did not go to bed until 3.00 am.  He got up at 2.00 pm and took a milligram dose of amitriptyline hydrochloride, a drug with well known sedative effects which should not be used if the taker intends to drive and certainly not mixed with alcohol.  These had been prescribed by his doctor for 'sleep difficulties'.

That evening he drove two friends to town in his van.  Over the course of the evening he consumed sufficient alcohol to place him some one and a half times over the drink drive limit.  At 1.30 am he and his friends left the wine bar.  CCTV footage showed the defendant staggering down the street.  He then drove them across the Island to St Mary, one passenger sitting loose in the back of the van amongst the defendant's work tools.  At about 2.40 am the defendant drove headlong into a granite gate pillar of St Mary's Parish Church at a speed of about 31 mph.  His front seat passenger, not wearing a seat belt, was killed instantly.  The rear passenger sustained a broken spine and was permanently paralysed from the chest down.  The defendant told a witness who attended the scene moments afterwards that he had fallen asleep at the wheel.

Expert toxicological evidence suggested that the amitriptyline taken 12 hours earlier continued to impair the defendant's ability to drive safely, (especially in conjunction with the alcohol), at the time of the crash.  Evidence from the surviving passenger suggested that the defendant had been drifting in and out of consciousness throughout the journey.

In interview, the defendant told a number of lies.  He did not accept that the alcohol or drugs had adversely affected his driving at all.  He continued to talk down the amount he had drunk when interviewed by the Probation Officer.  He was assessed as posing a moderate risk of re-offending.

The Crown, in reliance on the English authority of R -v- Cooksley, identified the following aggravating features listed in the headnote to that judgment: (a) consumption of both alcohol and drugs, (h) driving when knowingly deprived of adequate rest - the fact that he fell asleep at the wheel spoke for itself in this respect, (i) driving a dangerously loaded vehicle - the rear passenger had neither seat nor seatbelt to protect him in the event of a crash, (k) previous convictions for poor driving - though dealt with at Parish Hall, these findings of culpability, including for careless driving and driving whilst holding a mobile 'phone, were indicative of a cavalier attitude to the rules of the road, (m) serious injury to one or more victims in addition to a fatality.

Details of Mitigation:

The Crown identified the following mitigating features from Cooksley - (a) early guilty plea; (b) genuine remorse.

Previous Convictions:

None.

Conclusions:

The Crown took a starting point derived from Cooksley of 5 years' imprisonment.  The Court agreed with this starting point. 

Mandatory re-test following expiry of the ban.

No recommendation for deportation.

Sentence and Observations of Court:

5 years starting point.

Ordered to take a re-test.

M. T. Jowitt Esq., Crown Advocate.

Advocate D. Gilbert for the Defendant.

JUDGMENT

COMMISSIONER:

1.       It is fortunately not usual for this Court to have to sentence someone for having caused death by careless driving whilst under the influence of drink or drugs.  The facts of this case which have been carefully analysed by Crown Advocate Jowitt are particularly harrowing.

2.       Figueira had taken three tablets of a drug called amitriptyline hydrochloride some 12 hours before he attempted to drive home.  On the Sunday in question he took the tablets, which had been prescribed for sleep difficulties, after some 11 hours sleep.  There was a clear warning not to mix the tablets with alcohol and that is, sadly, exactly what Figueira did.  He took two companions into town later that evening in his van.  Mr Da Silva sat in the back without the benefit of a seat and De Sousa sat in the passenger seat.

3.       Figueira had been drinking fairly heavily, because we have seen his movements, before he drove his van on the fateful journey, on the CCTV, and it is quite clear to us that he should not have been driving at all.  A calculation from the hospital analysis shows that he had around 132 milligrams of alcohol per 100 millilitres of blood at the time of the crash.  The legal limit is 80.  As we've said the CCTV of his walking up Bath Street shows that he is staggering in his gait.

4.       The drug in question was apparently prescribed to help Figueira to sleep.  He hadn't gone to bed until 3 o'clock in the morning of the Sunday, but he had slept until 2 o'clock in the afternoon.  In the early hours of Sunday morning he had felt there was too much alcohol in his system and he had taken a taxi to his home.  He told the Probation Officer that he had had too much to drink, but he took the tablets on waking.  They were prescribed to help him sleep and were to be taken, according to Doctor Cameron his General Practitioner, at night.  According to the Prosecution evidence he had had nothing to eat that day, but according to the Defence he had taken stew with his two friends before they set out.

5.       At about 2 o'clock in the morning on Monday, with Da Silva in the back of the van and De Sousa in the passenger seat not bothering to wear a seat belt, Figueira, according to Mr Da Silva, braked sharply and repeatedly on the journey home.  This suggests to the Crown, and we accept the analysis, that this was a reaction to his momentarily nodding off from time to time. Da Silva says that the last sudden breaking was just before the Defendant drove straight into the wall permanently injuring one man and killing the other. 

6.       It appears from analysis that the Defendant was not taking the prescribed drug on a regular daily basis.  This explains according to the experts a lack of any trace of it in his blood when he was taken to hospital. 

7.       His words to a Portuguese speaking taxi driver, who came to the scene shortly after the crash, are prophetic.  They were "I was just driving along and I guess I fell asleep.  The next thing I realised is I crash."  He has told many stories since then, including that he was blinded by the lights of an oncoming car, but he is obviously traumatised by the consequences of the crash.

8.       We have carefully considered the English Court of Appeal case of R -v- Cooksley [2003] All ER 40 and we have to balance the fact that the Defendant did not intend to cause death or serious injury.  We have in fact read with concern the facts detailed in the Probation Officer's Report that apparently when Mr Da Silva was taken to his home in St John he quite adamantly refused to get out of the van, even at one stage crying like a baby.  The Defendant apparently decided to leave Mr Da Silva in the back and drive to Mr De Sousa's home, who lived quite near him.  It is quite clear from the R -v- Cooksley that causing death by dangerous driving, and causing death by careless driving while under the influence of drink or drugs, are very similar and in Jersey the maximum sentence is one of 10 years' imprisonment.  It is also clear from that leading case that an immediate prison sentence will result from such a proven charge. 

9.       Figueira's record, however, is not a bad one.  He was apparently cautioned at the Parish Hall in 1996 for driving without care and attention and in 2006 he was fined for using a mobile phone whilst driving and for not using a seat belt.  These are minimal offences in the light of the present case.  We have, of course, considered all the English cases, but with caution as the prison sentence in England has been increased to 14 years and, of course, in Jersey it remains at 10 years.

10.     We have considered carefully a starting point, but after careful consideration, which includes the length of time that he drove the vehicle before the fatal crash, we are content to set it at 5 years.  In this case we have read all the letters, including his own, and a harrowing letter from his sister to whom he is very close and there is no doubt that he is deeply shocked and deeply remorseful.  We have, of course, to ask ourselves why after 11 hours of sleep he then took 3 sleeping tablets, because that is how they were prescribed.  He admitted that he had taken the tablets otherwise no one would have known about the drug problem.  We take all these matters into account and he accepts, of course, that he must be punished and we are very grateful to Advocate Gilbert for her helpful address.  He is a hardworking man with no drugs problem and we have read letters of recommendation from many of his customers.  We have heard of his dreadful background and, of course, he will live with the consequences of the tragedies of this act to the end of his days.  We hope that this case highlights the dangers of drinking and driving and the potential deadly mixture of drink and drugs.

11.     We are going, however, to sentence you not to 3 years and 6 months as asked for by the Crown, but to 3 years' imprisonment.

12.     Under Article 35(1) of the Road Traffic (Jersey) Law 1956 and under Article 8 of the Road Traffic (Jersey) Law 1956 you must pass a driving test before you drive again. 

13.     You are disqualified from driving for 3 years.

14.     We do not, following the Crown's recommendations, make a recommendation for deportation.

Authorities

R -v- Cooksley [2003] All ER 40.

Road Traffic (Jersey) Law 1956.