Jersey Unreported Judgments

[2007]JRC075

ROYAL COURT

(Samedi Division)

23^rd March 2007

Before     :

F.C. Hamon, Esq., O.B.E., Commissioner, and Jurats de Veulle, and Morgan.

The Attorney General

-v-

Scott Robert Harben

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

1 count of:	Driving a motor vehicle on a road whilst unfit to drive through drink or drugs, contrary to Article 27(1) of the Road Traffic (Jersey) Law, 1956. (Count 1).
1 count of:	Using a motor vehicle on a road whilst uninsured against third party risks, contrary to Article 2(1) of the Motor Traffic (Third Party Insurance) (Jersey) Law, 1956.  (Count 2).
2 counts of:	Driving a defective motor vehicle, contrary to Article 106(1) of the Motor Vehicles (Construction and Use) (Jersey) Order, 1998.  (Counts 3 and 4).
1 count of:	Using a motor vehicle on a road, without a rear light in good working order, contrary to Article 24(1) of the Road Traffic (Lighting) (Jersey) Order, 1998.  (Count 5).

By virtue of Harben's guilty pleas to the above, Harben has placed himself in breach of a Royal Court Community Service Order imposed on 21^st April 2006 in relation to two charges, namely a breach of the peace committed on Sunday 18^th December 2005 and being disorderly on licensed premises on 4^th December 2005.

Age:  27.

Plea: Guilty.

Details of Offence:

On the evening of Wednesday 12^th July 2006, Harben was observed to be driving erratically by two Police Constables, veering from one side of the road to the other.  The Police Constables apprehended Harben as he pulled into the car park of St Peter's Country Inn.  Upon questioning, the Officers formed the opinion that Harben was drunk and conducted a roadside breathalyser test which provided a positive reading of 37 mgs.  Harben was therefore arrested and escorted to Police Headquarters where two further breathalyser tests were conducted.  Although both samples produced a reading of 33 mgs the Officers were still of the opinion that Harben was unfit to drive.  Harben was therefore examined by Police doctor Holmes to assess the extent of his impairment.

During examination, Harben refused to provide a blood and/or urine test.  Dr Holmes therefore conducted a physical examination of Harben, observing him to be unsteady on his feet with slurred speech and poor co-ordination, his reflexes were absent and eyes inflamed with grossly dilated pupils.  As a result Dr Holmes formed the opinion that Harben was unfit to drive by reason of a combination of alcohol and drugs and assessed his impairment to be equivalent to having a blood/alcohol level in excess of 200mg/100ml if his impairment had been the result of alcohol alone (Count 1).

In relation to the second count of driving without insurance, Harben failed to provide proof of insurance for the vehicle he was driving at the time of the offence.

Regarding counts 3, 4 and 5, following his arrest Harben's vehicle was impounded and thereafter examined on 28^th July 2006 by the Driving and Vehicle Standards Department during which the following defects were identified:

(i)             The bodywork was severely corroded in various places (Count 3);

(ii)            The engine stop control was inoperative and did not stop when the ignition was turned off (Count 4); and

(iii)           The offside rear light was inoperative (Count 5).

Breach of Community Service Order

Harben was ordered to complete 110 hours of Community Service by the Royal Court on 21^st April 2006 in relation to being disorderly on licensed premises and conduct likely to cause a breach of the peace.  Harben threw a drink over the assistant manager following a refusal to serve him alcohol.  The breach of the peace was then committed in the streets of St Helier.  Harben was caught on CCTV throwing a number of punches and was seriously injured in the fracas when he was glassed with a broken glass, resulting in 60 internal sutures.  The Royal Court imposed a term of 50 hours Community Service in relation to being disorderly on licensed premises and a consecutive term of 60 hours community service for the count relating to a breach of peace, totalling 110 hours community service.

Details of Mitigation:

Relevant previous convictions in relation to the motoring offences, in particular this was Harben's second offence of driving without insurance.  Stable employment and successful completion of Community Service in relation to hours completed prior to commission of motoring offences.  Remorse.  Delay in case coming before Royal Court.

Previous Convictions:

Motoring offences: Taking and driving away, driving whilst disqualified by reason of age and miscellaneous motoring offences all of which were committed on the same occasion in 1994.  More significantly, Harben received a fine of £300 and a 4 month period of disqualification on 5^th April 2005 for failing to stop and report an accident, failing to conform to a road sign, driving without insurance, minor miscellaneous motoring offences and use of an insurance disc for a different vehicle.

Public disorder offences: Common assault in 1991, breach of the peace committed in 1999 and grave and criminal assault, assault on a Police Officer, and common assault in 2000 for which he received a sentence of 2 years imprisonment.

Conclusions:

Count 1:	70 hours community service (equivalent to 2 months imprisonment) and 24 months disqualification to run concurrently with Count 2.
Count 2:	70 hours community service (equivalent to 2 months imprisonment) and 18 months disqualification to run concurrently with Count 1.
Count 3:	£250 fine.
Count 4:	£250 fine.
Count 5:	£150 fine.

Breach of Royal Court Community Service Order: vary Order from the remaining 37 hours to 70 hours (equivalent to 2 months imprisonment), to run consecutively to Counts 1 and 2.

Total: 140 hours community service, 24 months disqualification from driving and £650 fine.

Sentence and Observations of Court:

Conclusions granted.  Court accepted that Harben had made a real attempt to turn his life around.

A. R. Binnington, Esq., Crown Advocate.

Advocate P. S. Landick for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        Scott Robert Harben is to be sentenced today on 5 counts concerning his driving in St Peter on 12^th July 2006.

2.        The defects, apparently caused the car to swerve about the road, the bodywork was severely corroded, the engine stop control didn't work, so that the engine was running when the ignition was turned off, and the offside rear light was not working. The traffic officer who later examined the vehicle had no doubt it should not have been on the road.  Even more seriously the consequences could have been fatal.  Harben was uninsured and was unfit to drive.  He is also, because of his arrest, in breach of a Community Service Order and that order was imposed when he was disorderly on licensed premises and caused a breach of the peace by fighting. 

3.        It must be said that he is not of good character and we have heard that in 2001 he was sentenced to 2 years imprisonment for a grave and criminal assault.  Crown Advocate Binnington has outlined in great detail Harben's previous offences and, indeed, the offences for which he is to be dealt with today.

4.        On the face of it the outlook appears bleak, but we have a very detailed and an encouraging Probation Report.  It was certainly surprising to us to learn that Harben is one of the top surfers in the Channel Islands.  It is clear from the reports that Harben is a gifted sportsman who is, apparently, at low risk of re-offending.  He is genuinely remorseful today and clearly wishes to turn his life around.

5.        The Crown has, of course, taken into account Harben expressing his remorse, his consistent employment history and his being assessed by the experts as being at a low risk of re-offending.  He had fulfilled 73 hours of his 110 hours of Community Service "without fault" (those are the words of the Social Enquiry Report).  We also have a report from the Leonis amateur boxing club which is very supportive.

6.        Although Advocate Landick has no argument with the Crown's initial conclusions, he wishes us to reduce the hours of Community Service slightly, basically because of the delay in progressing this case and the anxiety which that has caused his client.

7.        We regard, however, these offences as serious offences and in fact if the Police had not been there in St Peter the results might have been infinitely more serious than they were.  We do have sympathy with the delay and we are prepared, for that reason, to allow a longer period of payment of the fines.  Those fines will now be paid at the rate of £50 per week.  However we are going to follow the conclusions of the learned Attorney General.

8.        On Count 1 you will serve 70 hours community service and a 24 month disqualification to run concurrently with Count 2 which again is 70 hours community service and 18 months disqualification.  On Count 3 there will be a £250 fine payable, as we have said, at £50 per week, and that is the equivalent of 2 weeks imprisonment.  Count 4; £250 fine, or 2 weeks imprisonment alternative.  Count 5; £150 fine, or 1 week imprisonment alternative.  We are going to deal with the breach of the Royal Court Community Service Order by increasing it from 37 hours remaining, to 70 hours and that runs consecutively to Counts 1 and 2.  So in total there is 140 hours community service, 24 months disqualification from driving and £650 fine payable as we have said at £50 per week.

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