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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> D v AG 16-Dec-2020 [2020] JRC 261 (16 December 2020) URL: http://www.bailii.org/je/cases/UR/2020/2020_261.html Cite as: [2020] JRC 261 |
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Motoring - appeal against sentence imposed by the Magistrate 5th June 2020
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Before : |
T. J. Le Cocq,, Esq., Bailiff, and Jurats Blampied and Austin-Vautier. |
D
-v-
Attorney General
Advocate A. M. Harrison for the Appellant.
Advocate L. B. Hallam for the Attorney General.
JUDGMENT
THE BAILIFF:
1. On 9th July 2020 we sat to hear an appeal by D ("the Appellant") against a sentence imposed upon him by the Magistrate on 5th June, 2020 ("the Sentence").
2. The Appellant was sentenced for a total of 13 road traffic offences committed by him between 11th May, 2019 and 27th December, 2019. The most serious of these related to four counts of dangerous driving. The sentence comprised: -
(i) 12 months youth detention;
(ii) Disqualification from driving for 5 years with a requirement to retake his test;
(iii) A fine of £1,300 or six weeks imprisonment in default of payment.
3. The Appellant appealed against the custodial sentence. He also originally appealed against the duration of disqualification from driving but that aspect of the appeal was not pursued before us.
4. We do not think it necessary to set out the full facts underpinning the charges in this case. In brief, with regard to the first count of dangerous driving he performed a number of wheelies from Havre des Pas, over Mount Bingham and as far as Commercial Buildings; with regard to the second charge of dangerous driving the Appellant, who was part of a group of motorcyclists, performed a wheelie whilst overtaking a motorist turning the handle bars from side to side as he did so and performing that manoeuvre over a distance of approximately 100 metres. The third instance of dangerous driving involved the Appellant overtaking vehicles whilst performing wheelies once on La Grande Route de St Aubin and the other on Victoria Avenue during an occasion of heavy traffic and over period of some 30 minutes. The fourth instance of dangerous driving involved the Appellant driving a pick-up truck, losing control of the vehicle whilst taking the corner between Union Road and the Parade at too great a speed, and permitting the rear of his vehicle to swing towards the pavement. A witness reported that on this occasion the Appellant appeared to be enjoying himself and was shouting out of his window at her. There are other instances of poor driving but the above in our judgment gives a sufficient flavour of the Appellant's activities.
5. The Appellant was 20 years of age at the time of his offending and the hearing before us.
6. The Appellant, through Counsel, accepted that the custodial threshold had been passed in this case and with that submission we entirely agree. The main point on appeal is that the Magistrate failed to apply appropriately the provisions of Article 4(2) of the Criminal Justice (Young Offenders) (Jersey) Law 2014, ("the 2014 Law") which provides that: -
7. The test on an appeal from the Magistrate's Court has been stated in a number of Jersey cases. In Loureiro v AG [2015] JRC 154 the Court, at paragraph 9 said:
8. The sentence imposed by the Magistrate reflected her view that the Appellant was being sentenced for an appalling history of driving which was persistent and reckless and which put the public at risk for his own entertainment. When driving his motor vehicle on the back wheel only he surrendered proper control of his bike and this he did with excess speed and when junctions were coming onto the road. He did this in built up areas where there were members of the public present. He did not appear to be deterred by the police investigation or the serious injury he had himself sustained whilst driving. We do not disagree with that characterisation.
9. The Magistrate expressly took into account the Appellant's age and did consider the provisions of the 2014 Law and determined Article 4(2)(b)(ii) applied to the effect that only a custodial sentence would be adequate to protect the public from serious harm from the Appellant. The Magistrate took into account the fact that the Appellant had had every opportunity to stop his behaviour but had not done so.
10. The Appellant's argument is a straight forward one. He submits that the Magistrate erred in determining that Article 14(2)(b)(ii) of the 2014 Law applied in this case and did not give any or any sufficient weight to the following factors: -
(i) The Appellant had no previous convictions recorded against him;
(ii) The Appellant was assessed by the Probation Service as being a low risk of reconviction;
(iii) The Appellant had stayed out of trouble for over five months by the time he was sentenced;
(iv) The Appellant had abided by the terms of interim disqualification imposed on 26th February, 2020;
(v) The Appellant would in any event receive a sentence of a lengthy period of disqualification which would keep him off the roads;
(vi) The proceedings have had a salutary effect on him.
11. The Appellant argues that in circumstances where the bail conditions which have been imposed upon the Appellant and his interim disqualification had proved adequate to protect the public from the risk of serious harm for a period of in excess of five months the determination that only custody could be an adequate disposal of the matter to protect the public at the time of sentencing was not justified.
12. The Crown before us submitted as follows: -
(a) Although the Appellant had no previous convictions that was of little assistance to him as the number of offences increased. He was a first-time offender before the Court but in reality, it was clear from the charges that he had committed a number of offences in sequence and he knew when he committed the later offences that he was under investigation;
(b) The assessment in the Social Enquiry Report that the Appellant was of low risk of reconviction was heavily caveated and was based upon offender profiles;
(c) Although the Appellant had not reoffended between the last offence and the sentencing hearing the offences were committed over a period of seven months and there was a period of about five months between the offences on the second and third charge sheets during which the Appellant was aware, that he was under police investigation. He had not been dissuaded from reoffending by that;
(d) It was accepted that the fact that he had abided by the terms of his interim disqualification was to his credit but that did not carry much weight when balanced with his extended and deliberate offending;
(e) The fact that the Appellant would receive a sentence by way of lengthy disqualification would apply to most young offenders being sentenced for serious driving offences and any salutary effect which proceedings might have had on the Appellant must be viewed against the background of his persistent offending.
13. It was submitted that the Magistrate's conclusion was open to her because she was confronted by persistent, deliberate and extended dangerous driving, sometimes uninsured, by an offender who was well aware of the illegality of his actions but chose to continue anyway and put members of the public at risk.
14. We do not think that we need to go into more detail than the above. The Magistrate had the benefit of watching CCTV footage, the Social Enquiry Report and the facts were deployed fully before her.
15. As we have said above, it is clear that the custodial threshold was passed in this case but we must look not only at the custodial threshold but the threshold in the 2014 Law. That Law, as is apparent from the citation above, contains a presumption against a custodial disposal for persons of the age of the Appellant in this case. The presumption means that there should be no sentence of youth detention unless, in the circumstances that obtained in this case, the Court is satisfied that no other method is appropriate for dealing with the matter and that only a custodial disposal would be adequate to protect members of the public.
16. In our view, there was evidence before the Magistrate of very serious bad driving but there was also evidence, referred to above, that the Appellant had abided by his bail conditions, had not breached the disqualification, and had been out of trouble for a number of months. There had been a period of automatic disqualification during which there had been no suggestion that the Appellant had driven. These facts cumulatively suggest to us that there exists a sufficiently strong argument that there was method that could be used to deal with the Appellant in this case, namely a period of disqualification and a community disposal, that meant that the threshold for custody set out in the 2014 Law had not been met. Accordingly, we allowed the appeal in so far as it related to the sentence of immediate imprisonment.
17. In our judgment, however, the custodial threshold having been passed, it is appropriate to impose a sentence of Community Service that is the equivalent of 11 months custody, allowing for the month already served by the Appellant. We imposed an Order of 170 hours Community Service.
