Jersey Unreported Judgments

Inferior Number Sentencing - various motoring offences.

[2014]JRC183

Royal Court

(Samedi)

26 September 2014

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Clapham and Milner.

The Attorney General

-v-

Brocken and Fitzpatrick Limited

James O'Hara

Paul Francis Rossiter

Pawel Rejak

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

Brocken and Fitzpatrick Limited

3 counts of:	Using a motor vehicle on a road when the steering gear is not maintained in a good and efficient working order, contrary to Article 29 of the Motor Vehicle (Construction and Use)(Jersey) Order1998 (Counts 1, 15, and 36)
7 counts of:	Using a motor vehicle on a road in such a condition that danger is caused or likely to be caused to any person in or on the vehicle or on a road, contrary to Article 106(1) of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 (Counts 2, 4, 13, 17, 19, 34, and 38).
3 counts of:	Using a motor vehicle on a road when the wiper and washer were not maintained in an efficient working order, contrary to Article 34(6) of the Motor Vehicles (Construction and Use)(Jersey) Order 1998 (Counts 3, 18, and 40).
2 counts of:	Using a motor vehicle on a road when the braking system is not maintained in good and efficient working order, contrary to Article 18(1) of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 (Counts 14 and 35).
1 count of:	Using a motor vehicle propelled by an internal combustion engine so that the exhaust gases from the engine escape into the atmosphere without first passing through the silencer, contrary to Article 59(1) of the Motor Vehicles (Construction and Use)(Jersey) Order 1998 (Count 16).
1 count of:	Using a motor vehicle on a road that does not comply with a requirement with respect to lighting equipment, contrary to Article 19 of the Road Traffic (Lighting)(Jersey) Order 1998 (Count 20).
1 count of:	Using a motor vehicle on a road when the lights are not maintained in a good working order and clean, contrary to Article 24(1) of the Road Traffic (Lighting)(Jersey) Order 1998 (Count 21).
2 count of:	Using a motor vehicle on a road when the mirror was not fixed to the vehicle in such a way that it remains steady under normal driving conditions, contrary to Article 33(4)(a) of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 (Counts 22 and 43).
1 count of:	Failure to notify a change of ownership of a motor vehicle, contrary to Article 11(2) of the Motor Vehicle Registration (Jersey) Law 1993 (Count 23).
1 count of:	Using a motor vehicle on a road when the tyres were not maintained in such condition as to be fit for the use to which the vehicle is being put, contrary to Article 27(1)(h) of the Motor Vehicles (Construction and Use)(Jersey)Order 1998, (Count 37).
1 count of:	Using a motor vehicle on a road from which an oily substance is emitted which causes or is likely to cause damage to property or injury or danger to any person who is, or may reasonably be expected to be, on the road, contrary to Article 68(8)(a) of the Motor Vehicles (Construction and Use)(Jersey) Order 1998 (Count 39).
1 count of:	Using a motor vehicle on a road when the glass or other transparent material fitted to it were not maintained in such a condition that it did not obscure the vision of the driver while the vehicle was being driven on the road, contrary to Article 30(3) of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 (Count 41).
1 count of:	Using a motor vehicle on a road when not fitted with a mirror as specified, contrary to Article 33(1) of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 (Count 42).
1 count of:	Using a motor vehicle on a road when a stop lamp was not in good working order, contrary to Article 24(1) of the Road Traffic (Lighting)(Jersey) Law 1998 (Count 44).
1 count of:	Using a motor vehicle on a road when a headlamp was not in good working order, contrary to Article 24(1) of the Road Traffic (Lighting)(Jersey) Law 1998 (Count 45).

Plea: Guilty.

Details of Offence:

The charges related to three vehicles used by Brocken and Fitzpatrick ("the Company").  All were in very poor condition and were a danger to the driver and any passengers as well as to other road users. 

Rejak and Rossiter were both employed by the company as drivers and scaffolders.  O'Hara is one of three directors of the Company. 

Counts 1 - 12 relate to a Renault Midlum flatbed lorry ("the Renault").  On 2^nd December, 2013, the Renault was stopped on the Esplanade by a police officer, who was extremely concerned about the clear overloading of the vehicle.  The Renault was weighed, and proved to be 3.26 metric tonnes, or 43.5%, over its gross maximum weight (Counts, 4, 8 and 12).  Subsequent inspection by DVS showed that it was at risk of overturning or of shedding its load.  In addition, it had worn steering (Counts 1, 5 and 9), damaged bodywork (Counts 2, 6 and 10), and inoperative wipers (Counts 3, 7 and 11).  The inspector's opinion was that the Renault should not have been parked or circulating on the road due to the danger it presented.  This resulted in Counts 1 - 4 against the company, Counts 5 - 8 against O'Hara and Counts 9 - 12 against Rossiter.  Rossiter was charged as the driver of the vehicle.  O'Hara was charged with causing the commission of the offences as he was responsible for the loading of the Renault, and had overruled Rossiter's objections to the overloaded state of the vehicle and told him to drive it to site. 

Counts 13 - 33 relate to a Leyland Road Runner lorry ("the Road Runner").  When the Renault was stopped, the police requested that the company send a vehicle to take part of the Renault's load to the weighbridge.  The Road Runner was sent, driven by Rejak.  DVS raised concerns as to its condition; it was therefore impounded and inspected.  This revealed ten defects, including unsecured batteries (Counts 13 and 24) and inoperative front brakes (Counts 14 and 25).  This resulted in Counts 13 - 22 for the company, and Counts 24 - 33 for Rejak.  It also transpired that the vehicle was still registered in the previous owner's name (Count 23).  The inspector's opinion was that the Road Runner should not have been parked or circulating on the road due to the danger it presented. 

Counts 34 - 57 relate to a Vauxhall Brava pickup ("the Vauxhall").  On 3^rd December, 2013, the Vauxhall, which was being driven by O'Hara, was stopped by a police officer, who had noted its very poor condition whilst off duty and so was looking out for the vehicle.  O'Hara leaned against the vehicle, and the officer noted that it moved despite the handbrake being engaged.  It rolled off the back of the recovery truck, and had to be winched onto it and secured in place. The Vauxhall was impounded and inspected.  12 defects were noted, including corroded body work affecting structural integrity (Counts 34 and 46), partially inoperative brakes (Counts 35 and 47) and perished tyres (Counts 36 and 48).  The inspector's opinion was that the Vauxhall should not have been parked or circulating on the road due to the danger it presented. 

Details of Mitigation:

Guilty pleas, it was argued that the company had insufficient funds to meet a substantial fine. 

Previous Convictions:

The Company had 51 previous convictions, all for motoring and construction use offences. 

Conclusions:

Count 1:	£2,000 fine.
Count 2:	£600 fine.
Count 3:	£400 fine.
Count 4:	£3,000 fine
Count 13:	£400 fine.
Count 14:	£4,000 fine.
Count 15:	£600 fine.
Count 16:	£400 fine.
Count 17:	£400 fine.
Count 18:	£400 fine.
Count 19:	£400 fine.
Count 20:	£400 fine.
Count 21:	£400 fine.
Count 22:	£400 fine.
Count 23:	£200 fine.
Count 34:	£600 fine.
Count 35:	£2,500 fine.
Count 36:	£2,000 fine.
Count 37:	£2,000 fine.
Count 38:	£400 fine.
Count 39:	£600 fine.
Count 40:	£400 fine.
Count 41:	£400 fine.
Count 42:	£400 fine.
Count 43:	£400 fine.
Count 44:	£400 fine.
Count 45:	£400 fine.

Total:  £24,500 fine and 12 months in which to pay.

Sentence and Observations of Court:

Conclusions granted.

James O'Hara

2 counts of:	Causing the use of a motor vehicle on a road when the steering gear is not maintained in a good and efficient working order, contrary to Article 29 of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 (Counts 5 and 48).
4 counts of:	Causing the use of a motor vehicle on a road in such a condition that danger is caused or likely to be caused to any person in or on the vehicle or on a road, contrary to Article 106(1) of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 (Counts 6, 8, 46 and 50).
2 counts of:	Causing the use of a motor vehicle on a road when the wiper and washer were not maintained in an efficient working order, contrary to Article 34(6) of the Motor Vehicles (Construction and Use)(Jersey) Order 1998 (Counts 7 and 52).
1 count of:	Using a motor vehicle on a road when the braking system is not maintained in a good and efficient working order, contrary to Article 18(1) of the Motor Vehicles (Construction and Use)(Jersey) Order 1998 (Count 47).
1 count of:	Using a motor vehicle on a road when the tyres were not maintained in such condition as to be fit for the use to which the vehicle is being put, contrary to Article 27(1)(h) of the Motor Vehicles (Construction and Use)(Jersey) Order 1998 (Count 49).
1 count of:	Using a motor vehicle on a road from which an oily substance is emitted which causes or is likely to cause damage to property or injury to any person who is, or may reasonably be expected to be, on the road, contrary to Article 68(8)(a) of the Motor Vehicles (Construction and Use)(Jersey) Order 1998 (Count 51).
1 count of:	Using a motor vehicle on a road when the glass or other transparent material fitted to it were not maintained in such a condition that it did not obscure the vision of the driver while the vehicle was being driven on the road, contrary to Article 30(3) of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 (Count 53).
1 count of:	Using a motor vehicle on a road when not fitted with a mirror as specified, contrary to Article 33(1) of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 (Count 54).
1 count of:	Using a motor vehicle on a road when the mirror was not fixed to the vehicle in such a way that it remains steady under normal driving conditions, contrary to Article 33(4)(a) of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 (Count 55).
1 count of:	Using a motor vehicle on a road when a stop lamp was not in good working order, contrary to Article 24(1) of the Road Traffic (Jersey) Law 1998 (Count 56).
1 count of:	Using a motor vehicle on a road when a headlamp was not in good working order, contrary to Article 24 of the Road Traffic (Jersey) Law 1998 (Count 57).

Age:  69.

Plea: Guilty.

Details of Offence:

See Brocken above.

Details of Mitigation:

Guilty pleas, age.

Previous Convictions:

O'Hara had 9 previous convictions; including 3 convictions for motoring and construction use offences. 

Conclusions:

Count 5:	£800 fine.
Count 6:	£300 fine.
Count 7:	£200 fine.
Count 8:	£1,500 fine
Count 46:	£150 fine.
Count 47:	£625 fine.
Count 48:	£500 fine.
Count 49:	£500 fine.
Count 50:	£100 fine.
Count 51:	£150 fine.
Count 52:	£100 fine.
Count 53:	£100 fine.
Count 54:	£100 fine.
Count 55:	£100 fine.
Count 56:	£100 fine.
Count 57:	£100 fine.

Total:  £5,425 fine or 6 months' imprisonment in default.

12 months given in which to pay fine.

Sentence and Observations of Court:

Conclusions granted.

Paul Francis Rossiter

1 count of:	Using a motor vehicle on a road when the steering gear is not maintained in a good and efficient working order, contrary to Article 29 of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 (Count 9).
2 counts of:	Using of a motor vehicle on a road in such a condition that danger is caused or likely to be caused to any person in or on the vehicle or on a road, contrary to Article 106(1) of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 (Counts 10 and 12).
1 count of:	Using a motor vehicle on a road when the wiper and washer were not maintained in an efficient working order, contrary to Article 34(6) of the Motor Vehicles (Construction and Use)(Jersey) Order 1998 (Count 11).

Age:  42.

Plea: Guilty.

Details of Offence:

See Brocken above.

Details of Mitigation:

Guilty plea, had raised concerns as to the overloading of the vehicle, and had been overruled.  Felt his job would have been in danger had he refused to drive, placed in a difficult position.  Previous convictions were related to his employment with the company.  Had resigned that day and now worked for a different scaffolding company, for which he needed a driving licence. 

Previous Convictions:

Rossiter had 16 previous offences of motoring or construction and use, all of which were committed in the course of his employment with the company. 

Conclusions:

Count 9:	£200 fine.
Count 10:	£75 fine.
Count 11:	£50 fine.
Count 12:	£250 fine

Total:  £575 fine or 21 days' imprisonment in default.

8 weeks given in which to pay fine.

Sentence and Observations of Court:

Count 9:	£200 fine.
Count 10:	No separate penalty.
Count 11:	No separate penalty.
Count 12:	£200 fine

Total:  £400 fine or 21 days' imprisonment in default.

8 weeks given in which to pay fine.

Pawel Rejak

3 counts of:	Using of a motor vehicle on a road in such a condition that danger is caused or likely to be caused to any person in or on the vehicle or on a road, contrary to Article 106(1) of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 (Counts 24, 28 and 30).
1 count of:	Using a motor vehicle on a road when the braking system is not maintained in good and efficient working order, contrary to Article 18(1) of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 (Count 25).
1 count of:	Using a motor vehicle on a road when the steering gear is not maintained in a good and efficient working order, contrary to Article 29 of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 (Count 26).
1 count of:	Using a motor vehicle propelled by an internal combustion engine so that the exhaust gases from the engine escape into the atmosphere without first passing through the silencer, contrary to Article 59(1) of the Motor Vehicles (Construction and Use)(Jersey) Order 1998 (Count 27).
1 count of:	Using a motor vehicle on a road when the wiper and washer were not maintained in an efficient working order, contrary to Article 34(6) of the Motor Vehicles (Construction and Use)(Jersey) Order 1998 (Count 29).
1 count of:	Using a motor vehicle on a road that does not comply with a requirement with respect to lighting equipment, contrary to Article 19 of the Road Traffic (Jersey) Law 1998 (Count 31).
1 count of:	Using a motor vehicle on a road when the lights are not maintained in a good working order and clean, contrary to Article 24(1) of the Road Traffic (Lighting)(Jersey) Law 1998 (Count 32).
1 count of:	Using a motor vehicle on a road when the mirror was not fixed to the vehicle in such a way that it remains steady under normal driving conditions, contrary to Article 33(4)(a) of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 (Count 33).

Age:  33.

Plea: Guilty.

Details of Offence:

See Brocken above.

Details of Mitigation:

Guilty plea, had not been aware of defects and had not drivien that vehicle before. 

Previous Convictions:

Rejak had 2 previous convictions, which included speeding and driving without due care and attention. 

Conclusions:

Count 24:	£25 fine.
Count 25:	£125 fine.
Count 26:	£50 fine.
Count 27:	£25 fine.
Count 28:	£25 fine.
Count 29:	£25 fine.
Count 30:	£25 fine.
Count 31:	£25 fine.
Count 32:	£25 fine.
Count 33:	£25 fine.

Total:  £375 fine or 12 days' imprisonment in default.

4 weeks given in which to pay fine.

Sentence and Observations of Court:

Count 24:	No separate penalty.
Count 25:	£125 fine.
Count 26:	£50 fine.
Count 27:	£25 fine.
Count 28:	No separate penalty.
Count 29:	No separate penalty.
Count 30:	No separate penalty.
Count 31:	No separate penalty.
Count 32:	No separate penalty.
Count 33:	No separate penalty.

Total:  £200 fine or 12 days' imprisonment in default.

4 weeks given in which to pay fine.

D. J. Hopwood, Esq., Crown Advocate.

Advocate N. S. H. Benest for Brocken and Fitzpatrick and O'Hara

Advocate L. V. Marks for Rossiter.

Advocate J. W. R. Bell for Rejak.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The Indictment laid against Brocken and Fitzpatrick Limited, Mr O'Hara, Mr Rossiter and Mr Rejak concerns breaches of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 in respect of three vehicles and those breaches were identified on the 2^nd and 3^rd December last year.  Some of the breaches are more serious than others.  There seems to us there would have been a strong case for bringing a prosecution not under the Motor Vehicle (Construction and Use) Order but under the Health and Safety at Work legislation because in essence what was happening here was that employees were being provided with an unsafe system of work through the vehicles which they were required to drive and indeed as a result of the way those vehicles were loaded the employees themselves were put at risk and also at risk were members of the public.  We would suggest that the Crown gives consideration, if this unfortunate type of case were to be repeated, to charges under different legislation.  But that is not what we are dealing with here, we have to deal with the case as we have it. 

2.        The Court treats these offences as very serious.  Vehicles in very poor condition and a danger to employees and the public were on the public road and there seems to have been what was, frankly, a cavalier approach to the loading of those vehicles.  They were heavily over-laden and that, of course, adds to the danger to the public. 

3.        We take the view that it is right to impose a fine on Mr Rossiter and Mr Rejak who were the drivers of the vehicles in question.  We recognise that they were in a difficult position because they were given instructions to drive these very unfit vehicles but it is the responsibility of an employee placed in that position to stand up to his employer where necessary and simply refuse to put himself and members of the public at risk, and that is what should have been done. 

4.        Nonetheless we recognise the mitigation which is available to both employees and which has been set out by Advocate Marks for Mr Rossiter and by Advocate Bell for Mr Rejak.  They are fined a total of £400 in the case of Mr Rossiter and £200 in the case of Mr Rejak and there will be a default prison sentence of 21 days in respect of Mr Rossiter and 12 days in respect of Mr Rejak.  Mr Rossiter has 8 weeks to pay and Mr Rejak has 4 weeks in which to pay. 

5.        The fines are to be imposed as follows:-in the case of Mr Rossiter the fines in respect of Counts 10 and 11 on the bodywork and the wiper are not imposed, there will be no separate penalty on those two charges and so there will be £200 on Count 9 and £200 on Count 12 in each case with 21 days in lieu as default. 

6.        In the case of Mr Rejak there will be no separate penalty on Counts 24, and 28 through to 33 and so there will be a fine of £125 on Count 25, £50 on Count 26 and £25 on Count 27 with 12 days imprisonment in default. 

7.        We turn to the offences committed by the company and by Mr O'Hara.  In the circumstances of Mr O'Hara's offending the position is that he has accepted, through his counsel, that he had the responsibility for the maintenance or acquisition of the vehicles and certainly for loading.  We think it is to his credit that he emphasised through his counsel that the employees were in a difficult position as a result of the instructions he gave and the regret which has been expressed on his behalf and on behalf of the company, and was rightly expressed, is noted and has been taken into account. 

8.        For the purposes of this sentencing we accept that he did not tell Mr Rossiter that he would be dismissed if he did not drive the vehicle but we also accept from Mr Rossiter's perspective that he may have thought that was the position. 

9.        As I said at the outset what we are left with is some vehicles that were in extremely poor condition, were a danger to the employees and to the public and a cavalier approach taken to their loading.  We think that the overall fines which have been moved for by the Crown are right and we have therefore gone on to consider whether, in the light of the financial circumstances facing the company and the defendant, it would be right to reduce them.  One of the reasons that we take the view the fines are in the right territory is the previous convictions which exist for both the company and Mr O'Hara in relation to similar offences. 

10.      The difficulty that we have with the financial information is that it is simply inadequate.  The company accounts have been drawn to the 31^st January, 2013.  They have not been completed, the accountants have not signed them off; even the directors have not signed them off.  They are not fully comprehensible and the figures do not, on the face of it, seem to make sense and that is a serious difficulty.  In connection with Mr O'Hara's affidavit he does not say within it that he has no other assets, although he does say he has no other bank accounts, and he makes an offer of £20 per week which in the circumstances looks derisory particularly having regard to the fact that the outgoings, for example, from him and his wife from their accounts or on Barclaycard for August this year, appear to be quite substantial.  So we have some doubt about the figures that have been put before us. 

11.      If a defendant wishes to persuade the Court that what would otherwise be an appropriate fine ought to be reduced because of financial inability to pay, then it behoves that defendant to put forward some material which is reliable upon which the Court can proceed, confident that it is arriving at a result which is capable of being justified both to the defendant and to the public through the Crown, and we regret to say that in this case we just simply do not find ourselves in that position.  In those circumstances we think the Crown's conclusions should be granted and we do so in accordance with the schedule which has been provided and is attached to the conclusions. 

12.      Therefore the company is fined a total of £24,500 and Mr O'Hara is fined a total of £5,425 and the breakdown is in accordance with the schedule. 

13.      In the case of Mr O'Hara there will be a default prison sentence of 6 months' imprisonment and insofar as time to pay is concerned, I have already indicated the Court has found difficulty in accepting the financial information that has been put before us.  We are going to grant 12 months to pay to both the company and to Mr O'Hara and we think that will enable them to put their financial affairs in such a state that these fines can be paid.  We emphasise that there is liberty to apply in relation to the time to pay and so if that were to be the result there will have to be some much better financial information put before us.

Authorities

Motor Vehicle (Construction and Use)(Jersey) Order 1998.

Road traffic (Lightening)(Jersey) Order 1998.

AG-v-Holiday Tours Limited [2007] JRC 244.

AG-v-Holiday Tours Limited [2011] JRC 036.

Magistrates Court Guidelines.