BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales Court of Appeal (Criminal Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Mascarenas, R. v [2018] EWCA Crim 1467 (08 June 2018) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2018/1467.html Cite as: [2018] EWCA Crim 1467 |
[New search] [Printable RTF version] [Help]
CRIMINAL DIVISION
Strand London, WC2A 2LL |
||
B e f o r e :
MR JUSTICE WILLIAM DAVIS
MR JUSTICE JULIAN KNOWLES
____________________
R E G I N A | ||
v | ||
PETER TYLER MASCARENAS |
____________________
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Email: [email protected]
(Official Shorthand Writers to the Court)
____________________
Crown Copyright ©
MR JUSTICE WILLIAM DAVIS:
"More importantly is the ban which has to be imposed for dangerous driving and the ban I am going to pass takes account under a particular section which is section 147(b) of the Powers of Criminal Courts (Sentencing) Act 2000 and so the total ban is going to be one of five-and-a-half years, all right? That relates back to 30 June when an interim ban was imposed, sorry 30 June 2016, five-and-a-half years from then takes us through to the end of 2021. You will not be released until November 2020 so there is a further ban of about a year effectively when you are not in custody."
"This section [that is a reference to section 35B] does not use the mechanism of a discretionary period and an extension period of disqualification as section 35A does... Instead, where this section applies, the effect of subsections (2) and (3) is that in determining the length of disqualification, the court 'must have regard … if and to the extent that it is appropriate to do so' to the diminished effect of disqualification as a distinct punishment on a person who is also detained pursuant to a custodial sentence. Clearly then, where this section is engaged the phrase 'must have regard', cited above, appears to give a greater degree of latitude to the sentencer in fixing the term of disqualification than that which is achieved by the extension period mechanism under section 35A."
"... there will be some cases where at the time of sentencing for an offence attracting disqualification the offender will already be serving a previously imposed custodial sentence. That situation has not been explored in detail before us, but it is clear that section 35B applies."
It follows that this is the very situation with which we are dealing.
"It is to be noted that that approach will not apply in some cases. In section 35B Parliament in using the phrases 'must have regard' and 'if and to the extent that it is appropriate' has clearly entrusted some measure of discretion to the court as to whether to adjust the disqualification under the section to any extent or at all. In a case where a very lengthy custodial sentence is to be served for 'another offence' which is not motoring related, it might be anomalous or run counter to considerations of rehabilitation to impose an extremely long period of disqualification under section 35B in order that a comparatively short period of disqualification should take place after release from custody. Examples might include a motoring offence combined with a non-motoring related homicide attracting a life sentence with a long minimum term, or a case involving a very long extended sentence passed for sexual offending."
Subject to subsection (5) below, an order under this section shall cease to have effect at the end of the period of six months beginning with the day on which it is made, if it has not ceased to have effect before that time.
Section 26(5) applies only to Scotland. Therefore, in this jurisdiction no interim disqualification can be longer than six months. On the facts of this case the interim disqualification expired on 30 December 206.
Where on any occasion a court deals with an offender—
(a)for an offence in respect of which an order was made under this section, or(b)for two or more offences in respect of any of which such an order was made,
any period of disqualification which is on that occasion imposed under section 34 or 35 of this Act shall be treated as reduced by any period during which he was disqualified by reason only of an order made under this section in respect of any of those offences.
Had the judge appreciated the statutory position at the time of sentencing in this case, he would have determined the appropriate period of disqualification pursuant to Section 34 of the 1988 Act. That period then would have been treated as reduced by six months. The judge then would have considered the effect of the lengthy custodial sentence to which the appellant was subject on the punitive effect of any disqualification by reference to the discretionary power in Section 35B of the 1988 Act. The judge clearly intended that the appellant should be disqualified for around 12 months after his release on licence from the lengthy sentence. He believed that this was the effect of the sentence he imposed.
Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.