Jersey Unreported Judgments

Motoring - appeal against the Assistant Magistrate's refusal for bail.

[2020]JRC194

Royal Court

(Samedi)

25 September 2020

The Attorney General

-v-

Vitor Hugo Vieira Cardoso

M. J. Jowitt Esq., Solicitor General.

Advocate R. S. Tremoceiro for the Defendant.

JUDGMENT

THE Commissioner:

1.        The appellant in this case faced one charge of driving with excess alcohol, contrary to Article 28 of the Road Traffic (Jersey) Law 1956.  In due course he pleaded guilty to that in the Magistrate's Court and he was sentenced on 9^th September, 2020, by the Magistrate to a period of imprisonment of 7 months.  It was his second offence.  He had committed a previous offence in January 2013 for which he had received a sentence of community service and 2 years' disqualification from driving.

2.        Prior to sentencing the Magistrate held a hearing to determine the basis upon which the appellant should be sentenced.  The reading on the machine at the time of his arrest was 87 micrograms of alcohol per 100 millilitres of breath.  However, the appellant said that he had consumed alcohol after he had driven and, on the basis of what he said he had consumed, the back calculation carried out by the official analyst suggested a level of 53 micrograms per 100 millilitres of breath at the time of his driving.

3.        The hearing before the Magistrate was to determine the level of alcohol on which he should be sentenced.  The Magistrate did not accept the appellant's evidence that he had consumed alcohol after he had driven.  She found him, as she said, to be an untruthful witness.  She therefore sentenced on the basis of a figure of 87.  At that level, and for a second offence, Advocate Tremoceiro very properly accepts that a sentence of 7 months of itself cannot be criticised as manifestly excessive.  But what he does say is that the Magistrate should have considered and imposed an alternative to prison, namely community service.

4.        So the appellant is now appealing against sentence and that hearing is at present fixed for 20^th November, 2020, although it may be possible to bring that forward to the 11^th November, 2020.  It is right to point out that originally a date in October was offered but unfortunately Advocate Tremoceiro is unable to appear on that occasion and the appellant, as is his right, wishes to have Advocate Tremoceiro to represent him rather than some other advocate.

5.        Following the decision to appeal, the appellant applied to the Magistrate's Court for bail pending appeal.  However, that was rejected by the Assistant Magistrate and accordingly the appellant now appeals against that decision of the Assistant Magistrate to refuse bail pending appeal.

6.        The matter of appeals to this court against refusals of bail is now dealt with by way of statute.  Article 16(2) of the Criminal Procedure (Bail)(Jersey) Law 2017 provides as follows:-

"(2)     An appeal under this Article may only be made on the ground that the Magistrate's decision was unreasonable in all the circumstances of the case."

7.        What that means is that this Court cannot intervene merely because, if sitting in the Magistrate's Court, the members of this Court might have granted bail. This Court can only intervene if the Magistrate's decision to refuse bail pending appeal can be categorised as unreasonable.

8.        The test for granting bail pending appeal is well established.  It was conveniently summarised by the Court of Appeal in the case of Christmas v AG [2012] JCA 217A where at paragraph 27 the court said:-

"27.      The test which I am enjoined to apply in an application of this kind is reported in the case of AG v Barette [2006] JRC 060.  On an application for bail pending appeal, the Deputy Bailiff, as he then was, made clear what was the test and I quote from his judgment:-

"The test for granting bail on appeal is clear.  It was laid down in the English case of R -v- Watton 68 Cr. App. R.293, and has been applied in this jurisdiction in the case of Stevenson -v- AG.  The test is that bail pending appeal is granted only in exceptional circumstances.  In Watton at page 296 the court approved the following as the correct formulation of the law, namely that bail is granted only where it appears prima facie that the appeal is likely to be successful, or where there is a risk that the sentence will have been served by the time the appeal is heard.""

In other words there are two grounds upon which the court may find that exceptional circumstances exist so as to lead to bail being granted pending appeal.

9.        We consider first ground 1, that is that it appears prima facie that the appeal is likely to be successful.  Advocate Tremoceiro says that that is the case here, because the Magistrate did not properly or fairly consider community service as an alternative sentence to imprisonment.  The background was that the appellant had said to the Probation Service that he planned to leave Jersey and indeed his wife and child had already left to move to Madeira.

10.      The Magistrate concluded that she could not rely upon the assurances put forward on his behalf that he would remain in the Island to carry out any Community Service Order.  She said that she had found him to be untruthful and therefore did not feel confident that she could rely on his remaining in the Island. 

11.      Advocate Tremoceiro submits that she erred in this respect and that she had not properly considered community service as an alternative given his assurance that he would remain, his compliance with previous court orders such as community service and his bail terms, and his lack of previous convictions other than the previous driving offence we have referred to.

12.      Advocate Tremoceiro is, of course, free to bring forward these arguments in due course and nothing we say is intended to say that these are hopeless arguments.  But the test is not whether there is an arguable appeal; the test is whether it is prima facie likely to succeed.  That expression means that in order to come within this category it has to be an appeal which on its face has strong prospects of success.  We cannot conclude that is the case here.  The Magistrate did consider the question of community service and gave her reasons for rejecting it.  It will be up to the Royal Court in due course to consider whether those reasons were adequate or not, but we certainly cannot say at this stage that this is an appeal which on its face is likely to succeed or has strong prospects of success on the basis of what we have been told so far.

13.      The second ground on which bail can be granted is, as we say, where there is a risk that the sentence will have been served by the time the appeal is heard.  We accept Advocate Tremoceiro's submission that this does not mean that the whole of the sentence must have been served by the time the appeal is heard.  As he submitted in argument, if the appeal were only to be heard a day or two before the expiry of his sentence we have no doubt that a court would take the view that there was a risk that the sentence would have been served by the time the appeal is heard.  What that expression means, in our judgment, is that substantially all of the sentence must have been served in order to fall within that category.

14.      The position in the present case is that sentence was imposed on 9^th September, 2020, and the release date is apparently 28^th January, 2021.  There is therefore a period of 20 weeks actually to be served assuming a normal release date after two thirds of the sentence.

15.      As we have said, the appeal is currently listed for hearing on the 20^th November, 2020.  That will be 10 weeks after 9^th September, 2020; in other words half way through the sentence to be served.  As we have also said, it would be possible for the appeal to be heard on 11^th November, 2020 which would be some 9 weeks after sentence was imposed; in other words just under half.

16.      It is commonplace for part of a sentence to be served before an appeal against sentence can be heard.  We cannot find that serving approximately half of a sentence falls within the criteria laid down in Barrette and approved in Christmas.  We therefore consider that neither ground 1 nor ground 2 of the test is satisfied and this appeal is dismissed.

Authorities

Road Traffic (Jersey) Law 1956

Criminal Procedure (Bail)(Jersey) Law 2017

Christmas v AG [2012] JCA 217A.