Jersey Unreported Judgments

Inferior Number Sentencing - motoring - driving without due care and attention, causing death by dangerous driving - withholding material information to obtain certificate of insurance.

[2014]JRC206

Royal Court

(Samedi)

24 October 2014

Before     :

Sir Michael Birt, Kt., Bailiff and Jurats Nicolle and Liston

The Attorney General

-v-

Luis Carlos Alves Cardoso

Jeronimo Viera Santos

Jose Joao Santos Silva

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

Luis Carlos Alves Cardoso

1 count of:

Driving without due care and attention, contrary to Article 25(1) of the Road Traffic (Jersey) Law (Count 2).

Age:  20.

Plea: Guilty.

Details of Offence:

The defendants and their friend Mr Fernandes agreed to drive from town to Bel Royal in their respective cars.  On a damp section of the Esplanade with a 30mph limit and containing two pedestrian crossings Cardoso drove at 47mph; Santos, 58mph; Silva, 72 mph and Mr Fernandes, 78mph. 

Silva and Mr Fernandes weaved between other traffic.  On Victoria Avenue they raced one another.  Silva accelerated away, remaining within his lane.  Behind him Mr Fernandes lost control of his own car at high speed, spinning airborne across the central reservation into the path of an oncoming car, killing himself outright and causing broken bones to the driver of the oncoming car.  It was a harrowing scene.  Guilty only by virtue of incitement of Mr Fernandes by racing.  Silva then mounted central reservation to avoid other traffic. 

All defendants denied speeding until shown CCTV then cooperated. 

Silva's car had been un-roadworthy because of modifications and poor maintenance.  He had misled his insurer as to his previous disqualifications.  He fled the Island in breach of bail then returned voluntarily a week or so later. 

Details of Mitigation:

All pleaded guilty and were remorseful.  All had good employment records. 

Previous Convictions:

None.

Conclusions:

Count 2:

£300 fine or 15 days' imprisonment in default and disqualification from driving for a period of 6 months with a requirement to pass a prescribed driving test at the end of that period.

12 months given in which to pay fine. 

Sentence and Observations of Court:

Count 2:

£300 fine or 1 month's imprisonment in default of non-payment of fine and an endorsement on your licence.

£150 to be paid within 7 days and thereafter remainder to be paid at rate of £50 per week. 

Jeronimo Viera Santos

1 count of:

Driving without due care and attention, contrary to Article 25(1) of the Road Traffic (Jersey) Law (Count 4).

Age:  29.

Plea: Guilty.

Details of Offence:

See Cardoso above.

Details of Mitigation:

See Cardoso above.

Previous Convictions:

Speeding; warning for careless driving. 

Conclusions:

Count 4:

£400 fine or 20 days' imprisonment in default of non-payment of fine and disqualification from driving for a period of 6 months with a requirement to pass a prescribed driving test at the end of that period.

12 months given in which to pay fine. 

Sentence and Observations of Court:

Count 4:

£400 fine or 1 month's imprisonment in default of non-payment of fine and an endorsement on your licence.

7 days given in which to pay fine. 

Jose Joao Santos Silva

1 count of:	Causing death by dangerous driving, contrary to Article 23(1) of the Road Traffic (Jersey) Law (Count 5).
1 count of:	Withholding material information for the purpose of obtaining a certificate of insurance, contrary to Article 18(2) of the Motor Traffic (Third Party Insurance)(Jersey) Law (Count 7).

Age:  22.

Plea: Guilty.

Details of Offence:

See Cardoso above. 

Details of Mitigation:

See Cardoso above. 

Previous Convictions:

2 x careless driving; 2 x driving uninsured; no licence; 'Construction and Use' defects. 

Conclusions:

Count 5:	3 years' imprisonment and disqualification from driving for a period of 4 years with a requirement to pass a prescribed driving test at the end of that period.
Count 7:	3 months' imprisonment, concurrent.

Total:  3 years imprisonment and disqualification from driving for a period of 4 years with a requirement to pass a prescribed driving test at the end of that period. 

Sentence and Observations of Court:

Conclusions granted. 

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

Advocate J. W. R. Bell for Cardoso.

Advocate E. L. Burns for Santos.

Advocate A. M. Harrison for Silva.

JUDGMENT

THE BAILIFF:

1.        This offence shows the terrible consequences which follow from drivers racing each other at speed on the roads of the Island.  Silva, you and the deceased drove off at speed from Gloucester Street; while still in the 30 mph zone on the Esplanade you reached a speed of the order of 72 miles an hour and the deceased reached a speed of 78 miles an hour.  You and he then came alongside each other, you smiled at each other and then accelerated into a race.  The roads were still damp from earlier rain.  Nobody knows exactly what speeds you reached as you raced each other along Victoria Avenue but it was clearly more than 72 miles an hour because you had accelerated away from at speed. 

2.        Near the First Tower junction the deceased, Mr Fernandes, lost control of his car.  It crashed through the central reservation and hit an oncoming car coming from the other direction causing injury to the driver of that car and, having seen what happened, she was very lucky not to have been more seriously injured, if not killed.  There was another driver behind her who was lucky also not to have been involved in the crash because she managed to find a split-second gap to get through the flying car of Mr Fernandes.  His car careered into the slip road to First Tower before coming to a halt. 

3.        In the meantime you had driven on because you were not aware of what had happened but you continued at great speed.  You were seen to swerve to the right and mount the central reservation in order to avoid slower-moving traffic in front of you before eventually pulling into the car park at Bel Royal.  Tragically, your friend Mr Fernandes, the driver of the car you were racing, died as a result of the accident; and that is so often the consequence of people who race at speed. 

4.        Now we have been reminded of the appropriate guidance to be obtained from the leading English case of R-v-Cooksley [2004] 1 Cr App R (S) 1.  We find that the following aggravating factors were present, although we entirely accept what your counsel says that this is not just a question of totting them up, we must consider the weight to be given to them.  First there was the greatly excessive speed with racing and competitive driving against each other.  Secondly, you had a poorly maintained vehicle but we accept that that had no contributing effect to the accident on this occasion and therefore is a factor of little weight.  Thirdly, you have committed another offence because you misled your insurance company by lying about your previous driving record.  Fourthly, you have a poor driving record and, fifthly, as well as the tragic death of Mr Fernandes, there was the serious injury to the driver of the oncoming car.  Now we take account of these factors but the most serious one by far and the gravamen of this case is the racing at speed which, as we have said, so often can lead to serious injury or death.  The ordinary members of the public are entitled to be protected from young men who behave in this way. 

5.        We think that taking account of these various factors the starting point fixed by the Crown was too low; we think the correct starting point is one of 6 years.  However, there is much mitigation.  First of all you have pleaded guilty and we agree to a full discount for that.  Secondly, you have an excellent work record; we have read the references from your friends and from your former employer and it is clear that you have much to offer.  Thirdly, you have no convictions other than motoring offences and fourthly, we are satisfied that you are indeed remorseful for what has happened and of course you have lost the life of a friend. 

6.        Nevertheless we think that, taking all these matters into account, the conclusions of the Crown are correct; so, making allowance for that mitigation, we think the correct sentence is one of 3 years. 

7.        The sentence on Count 5 is 3 years' imprisonment and on Count 7; 3 months' imprisonment, concurrent, making a total of 3 years' imprisonment and we disqualify you from driving for 4 years. 

8.        We turn next to Mr Cardoso and Mr Santos.  We accept that your offences are quite separate from those of Mr Silva.  Although you had agreed to drive off together to the Bel Royal car park there is absolutely no suggestion of any prior plan to race and there is no evidence that either of you two became involved in a race.  What you did do was that you each drove too fast along the Esplanade before you got to Victoria Avenue but in your case Mr Cardoso, you were well away from the others, you were behind them, and in your case Mr Santos, you were overtaken by the others at much greater speed.  Now Mr Cardoso you were recorded as driving at a speed of some 46-48 miles an hour in a 30 mile an hour zone.  You have been charged with driving without due care and attention but in many ways the element of your offence was one of speeding.  There is no suggestion that your driving was bad in any other way, there was no swerving between cars or cutting in front of other cars.  Now under the Magistrate's Court guidelines for somebody who drives 17 miles an hour over a 30 mile an hour limit there is no suggestion of disqualification for a first offender.  In addition we have taken into account what your advocate has said about the hardship which disqualification would cause; we commend you for the work you are undertaking and we hope you succeed in the qualification you want to obtain.  We think it would be disproportionate to in effect ruin all that and prevent you following your chosen career.  So in all the circumstances we do not think it necessary to disqualify you for all the reasons your advocate has said. 

9.        In your case we are going to grant the conclusions of a fine of £300 and we endorse your licence. 

10.      Mr Santos, much the same observations apply to you.  Again, we think that even though you were driving at greater speed the Magistrate's Court guidelines do not require a disqualification and we think it would be disproportionate in the effect it would have on your life at the moment.  You should both regard yourselves as being quite fortunate; driving at speed does cause potential danger to other people and we hope that you have both learned something from this terrible tragedy even though you were not directly involved in the tragedy. 

11.      So in your case Mr Santos, the fine is one of £400 to reflect the fact that you were driving faster and your licence is also endorsed. 

12.      Mr Cardoso, you are given time to pay the fine and you are to pay £150 within 7 days and the remainder is to be paid at a rate of £50 per week thereafter or 1 month's imprisonment in default of the non-payment of the fine. 

13.      Mr Santos you are given 7 days in which to pay the fine or 1 month's imprisonment in default of the non-payment of the fine. 

Authorities

R-v-Cooksley [2004] 1 Cr App R (S) 1.

AG-v-McInness 2000/43.

AG-v-Luis [2007] JRC 233.

AG-v-Figueira [2007] JRC 136.

R-v-Airey [2009] EWCA Crim 2561.

Archbold 2014 Edition.