Jersey Unreported Judgments

Magistrate's Court Appeal - appeal against sentence imposed on Charges 3 and 4 by the Magistrate.

[2015]JRC154

Royal Court

(Samedi)

9 July 2015

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Kerley and Olsen

Helder Manuel De Sousa Loureiro

-v-

The Attorney General

Advocate R. S. Tremiceiro for the Appellant.

P. F. Byrne, Esq., Crown Advocate.

JUDGMENT

THE commissioner:

1.        On 10^th April, 2015, the Court allowed the appeal of Helder Manuel de Sousa Loureiro ("the appellant") and varied the sentenced imposed upon him by the Relief Magistrate (Advocate D E Le Cornu). 

2.        The appellant had pleaded guilty to four motoring offences for which he was sentenced as follows:-

(i)        Charge 1 - Driving whilst disqualified - 3 months' imprisonment, and 12 months' disqualification. 

(ii)       Charge 2 - Failing to stop and report following an accident - 3 months' imprisonment, concurrent, and 12 months' disqualification, concurrent. 

(iii)      Charge 3 - Driving whilst uninsured - 9 months' imprisonment, concurrent, and 36 months' disqualification, concurrent. 

(iv)      Charge 4 - Failing to provide a breath specimen - 3 months' imprisonment, consecutive, and 36 months' disqualification, concurrent. 

He was thus sentenced to a total of 12 months' imprisonment and disqualified from driving for a total of 36 months.  The appeal related to the custodial sentence imposed on Charge 3, which the appellant submitted was manifestly excessive, and to the consecutive sentence imposed on Charge 4, which he submitted offended the totality principle. 

3.        The facts are that the defendant, who is 28, drove a vehicle on 31^st December, 2014, at approximately 10pm under the influence of alcohol, uninsured and whilst disqualified.  He crashed the vehicle into a wall and then ran away.  He was found shortly thereafter hiding nearby.  He was arrested and failed the roadside breath test.  At the Police Station, he was given eight chances to provide a sample of breath but failed either by not blowing hard enough or blowing a small amount and then stopping.  He admitted he had drunk four bottles of Portuguese beer at approximately 8:30pm and was unfit to drive. 

4.        He had a record of previous, mainly motoring, convictions.  This was his first offence of driving whilst disqualified but his fourth offence for driving whilst uninsured.  For his first offence of driving whilst uninsured in June 2009, he was fined £300; for his second offence in December 2010 he was fined £1,000 and for his third offence in July 2014, he was given 90 hours' community service (the equivalent of 3 months' imprisonment).  He had never before served a sentence of imprisonment. 

5.        When sentencing the appellant, the Relief Magistrate said this:-

"Mr Loureiro first of all I wish to say that I've looked at the references which you have given, passed up to the Court which are excellent.  I note that you have the possibility of a job to go to.  I've read very carefully everything in the Social Enquiry Report and I have taken consideration of everything that Mr Tremoceiro has told the Court.

However, these are very serious offences.  You have deliberately driven whilst disqualified and without insurance, and this is your fourth conviction for driving without insurance in just over five years.

In relation to the offence of driving whilst disqualified you will be sentenced to three months in prison.

In relation to the offence of failing to stop you will be sentenced to three months in prison, and as this is your fourth offence for driving without insurance you will be sentenced to nine months in prison concurrent to the other two sentences.

And in relation to the offence of failing to provide you will be sentenced to three months consecutive.  Now I have to explain to you why I am making one of those sentences consecutive, it's because it amounts to a completely different offence, an offence committed at Police Headquarters, and I have taken great care in considering the guidelines imposed by the Royal Court in this matter, so you will serve a total of twelve months' imprisonment.

In relation to the disqualification period, in relation to charges 1 and 2 you will be disqualified for twelve months.

In relation to charges 3 and 4 you will be disqualified for thirty-six months concurrent in each case; so a total of thirty-six months disqualification."

6.        Clarification was subsequently sought from the Magistrate's Court as to the guidelines to which the Relief Magistrate had referred.  In its response the Court said that the Relief Magistrate had reviewed the transcripts and:-

"The guidelines to which he was referring are those contained in the Kinsella appeal where the Court stated that a Magistrate imposing a consecutive sentence should explain to the defendant why he is so doing."

7.        In Kinsella v AG [2014] JRC 199, the Relief Magistrate had imposed four consecutive sentences of imprisonment totalling 10 months for motoring offences without giving an explanation other than to say that they were very serious offences.  Bailhache, Deputy Bailiff, said this at paragraph 17 of the judgment:-

"17     We think however that Advocate Jones was on much stronger ground in complaining that the Relief Magistrate did not set out his reasons for sentence.  We recognise of course that the number of cases which come before the Magistrate's Court is such that Magistrates are not expected to issue judgments of the kind which are anticipated in this Court.  On the other hand, to send a defendant to prison for 10 months without giving him any explanation as to why that sentence is being imposed, other than that the offences were serious, seems to us to be at risk of leaving the defendant with a legitimate sense of grievance, and indeed a lack of understanding as to the principles which had governed the sentences which were imposed.  We ourselves have no understanding why the Relief Magistrate chose consecutive custodial sentences but an apparently concurrent disqualification.  Furthermore, although we know that the Relief Magistrate considered the consecutive/concurrent issue, we do not know if he applied his mind to the totality principle.  It is not enough in a case involving the deprivation of liberty for the Crown to assert that the sentencing court was extremely experienced and must have applied the right principles.  Even recognising the undoubted experience of the Relief Magistrate, we do not think that it is a proper assumption to make, not because we are satisfied the sentencing court applied the wrong principles, but simply because we do not know whether it applied the right principles and if so how it applied them."

8.        Whilst it is clear that the Relief Magistrate had given consideration as to whether or not to impose a consecutive sentence for Charge 4, Advocate Byrne, for the Attorney General, accepted that it was not clear whether he had applied the totality principle and considered the aggregate of the sentences imposed upon the appellant.  On the basis of the Court's approach in Kinsella, he therefore invited the Court to apply the totality principle in reviewing the aggregate sentence imposed. 

Test on appeal

9.        It is well established that the Court will not interfere with the sentence imposed by the Magistrate unless it is one which is not justified by law, or the sentence was passed on the wrong factual basis, or some matter has been improperly taken into account or left out of account, or there was some fresh matter which ought to be taken into account or whether the sentence was wrong in principle and manifestly excessive.  In particular, it is not the function of the Royal Court to tinker with sentences which were within the range open to the sentencing court simply because it might itself have fixed a lower term of imprisonment. 

Decision

10.      Advocate Tremoceiro accepted that the sentences imposed under Charges 1 and 2 were within the Magistrate's Court guidelines, as was the sentence imposed under Charge 4.  It was the sentence for Charge 3 which he said was excessive and the Magistrate had failed to take into account the totality principle in imposing a consecutive sentence for Charge 4.  

11.      Advocate Tremoceiro argued that it was inconsistent for the Relief Magistrate to have accepted jurisdiction prior to hearing any mitigation and then to impose a total sentence after hearing mitigation that equated to the maximum sentence (12 months) that he was empowered to impose.  However it was clear that the Relief Magistrate could have declined jurisdiction at any stage and we saw no inconsistency in his approach in this respect. 

12.      We also agreed that it was right in principle for the Relief Magistrate to have imposed a consecutive sentence for Charge 4 for the reasons set out in the English Court of Appeal case of R v Paul Hardy [2006] 2 Cr.App.R.(S.) 4 where Steel J. said this:-

"14     As we say, it may well be as a generality that consecutive sentences are not appropriate where the matters or facts arise out of the same incident, but in circumstances of this kind it would be bizarre that this man would in fact have a licence to drive with excess alcohol and while disqualified without any added penalty.  That would not only be bizarre.  It would be entirely in accord [sic] with principle and well-established authority that, in circumstances of this kind, not merely is a consecutive sentence appropriate but should usually be imposed: see Wheatley (1983) 5 Cr.Ap.R.(S.) 417 where the Lord Chief Justice, having referred to the fact that the relevant appellant was driving while disqualified - which he persistently did, and persistently driving when he had had too much to drink, said:

'In these circumstances the practice of the court operated in many cases, of passing two concurrent sentences for two offences arising out of the same facts, cannot apply.  Otherwise this man would have a licence to drive with excess alcohol without any added penalty.'

The Lord Chief Justice repeated that same proposition in Lawrence (1989) 11 Cr.App.R.(S.) 580.

15       Mr Selby suggested to us that the decision in King [2000] 1 Cr.App.R.(S.) 105, amongst others, indicated the more modern view was that concurrent sentences were appropriate and consecutive sentences inappropriate.

16       We derive no assistance in regard to this particular issue from the decision in King.  That raised quite different considerations, where maximum sentences in relation to dangerous driving and driving while disqualified had been imposed consecutively following a plea of guilty.  There is no reference to either Wheatley or Lawrence in the decision.  The decision in King should not be regarded as detracting from the general principle that in cases of like kind to this consecutive sentences are not only appropriate but should be regarded as usual."

13.      The Magistrate's Court Guidelines give a starting point for a first deliberate offence of driving without insurance of 1 month's imprisonment with a range up to 3 months. The maximum sentence is 18 months' imprisonment and so it is difficult to argue that for a fourth offence 9 months' imprisonment, although high, taken on its own was manifestly excessive.  However, it was not clear from the transcript and from the subsequent response from the Court, as conceded by Advocate Byrne, that the Relief Magistrate had considered the totality principle and in our view, the total sentence imposed of 12 months was too long, in particular having regard to the fact that this was the first custodial sentence which the appellant would have served. 

14.      It was right, therefore, for the Court to interfere with the sentences imposed.  We did this by reducing the sentence imposed under Charge 3 (driving whilst uninsured) to 6 months' imprisonment, concurrent with Charges 1 and 2 (which in itself is twice the equivalent sentence imposed by the Court on his third conviction for this offence in July 2014) and by imposing a sentence of 2 months' imprisonment under Charge 4, (failing to provide a breath specimen) consecutive, giving a total sentence of 8 months' imprisonment.  

Authorities

Kinsella v AG [2014] JRC 199.

R v Paul Hardy [2006] 2 Cr.App.R.(S.) 4.