Jersey Unreported Judgments

2001/43

4  pages

ROYAL COURT

(Samedi Division)

 

21^st February, 2001

 

Before:  M.C. St. J. Birt, Esq., Deputy Bailiff and

                                                Jurats Quérée and Le Breton

 

 

Magistrate's Court Appeal

 

Steven Terence Smaller

-v-

The Attorney General

 

 

Appeal against a fine of £1,000 or 50 days' imprisonment in default of payment, with 2 years' disqualification from driving, passed on 19^th December, 2000, following a guilty plea to:

 

1 count of driving after consuming excessive alcohol, contrary to Article 16A(1)(a) of the Road Traffic (Jersey) Law, 1956 as amended.

 

Appeal allowed in relation to 2 years' disqualification from driving. Disqualification period reduced to 15 months.

 

 

Advocate C.R. G. Deacon for the Appellant;

Advocate C Yates on behalf of the Attorney General.

 

JUDGMENT

 

THE DEPUTY BAILIFF:

 

1.            This is an appeal by Steven Terence Smaller against the sentence imposed by the Relief Magistrate on 19^th December, 2000, for an offence of driving with an excess level of alcohol in his breath, contrary to Article 16A(1)(a) of the Road Traffic (Jersey) Law, 1956.  The Relief Magistrate fined the appellant £1,000 and disqualified him from driving for 2 years.

 

2.            The offence was committed on Saturday, 14^th October, 2000.  The appellant was seen at about 1.50 am on Route de la Haule driving in an erratic manner and weaving from side to side.  He was stopped and the usual procedures followed.  It transpired that the appellant had 78 micrograms of alcohol per 100 millilitres of breath.  In other words he was more than twice the legal limit and the level was in the middle of band C of the guidelines issued by the Magistrate.

 

3.            The fine imposed was that recommended for band C and the period of disqualification was at the top end of that recommended for band C.  The appellant appeared before the Assistant Magistrate on 21^st November, 2000, but the case was adjourned for a social enquiry report.  As we have said he then appeared before the Relief Magistrate on 19^th December.

 

4.            The facts were read out by the Centenier and the social enquiry report had been read.  There then took place the following exchange as taken from the transcript:

 

"JUDGE TRICOT:   Are there any more facts?

 

CENTENIER BLACKMORE:   No.

 

JUDGE TRICOT:  Stand up, Mr. Smaller.  You're not represented today?

 

DEFENDANT:   No.

 

JUDGE TRICOT:   I've read the Probation Officer's report on this and he recommends that I deal with it by way of a fine.  There will be a fine and a disqualification.  The figures are high so you are fined £1,000 (one thousand pounds) or fifty days and you are disqualified for two years.  Now, how are you going to pay that?  They suggest here you can pay £20 a week.

 

DEFENDANT:   Yes, Sir.

 

JUDGE TRICOT:   Right, you pay £20 a week, see that lady there."

 

5.            The sole ground of the appeal raised by the appellant is that he was not permitted to say anything in mitigation as he was not asked to say anything.  The Court accepts that this was so.  The transcript shows clearly that at no stage did the Relief Magistrate ask the appellant whether he had anything to say in mitigation.

 

6.            We repeat what was said in Williams -v- A.G. (13^th July, 1998) Jersey Unreported.

 

"It is of fundamental importance and a matter of natural justice that an accused person should have the opportunity to tell the Magistrate anything he wishes to say in mitigation of sentence.  It is the duty of the Magistrate to ensure that the accused has this opportunity even where, as in this case, the Magistrate has the assistance of a social enquiry report."

 

7.            In view of the Relief Magistrate's failure to do so on this occasion, the Court will not apply the normal rule, namely that it will only intervene where the sentence was wrong in principle or manifestly excessive.  We need to consider the matter afresh and take into account the need to avoid a sense of grievance on the part of a defendant who has been sentenced without being given the opportunity to say anything in his defence.

 

8.            Miss Deacon has raised a number of matters in mitigation which, she says, the appellant would have put forward to the Magistrate.  Indeed, he had made a note to himself for his submission.  They can be summarised under three headings.

 

9.            First, the appellant has held a HGV licence.  That is now lost because one needs to hold an ordinary driving licence for one year before one can hold a HGV licence.  It will in effect be three years before he can regain his HGV licence.  This will have a serious effect on his employment prospects.  This was a matter which was not drawn to the attention of the Relief Magistrate.

 

10.        Secondly, he hopes to train as a fire-fighter and the period of disqualification will delay this for a lengthy period.  This was alluded to in the social enquiry report but the appellant would have wished to have put it forward himself to the Relief Magistrate.

 

11.        Thirdly, the appellant is extremely remorseful and the length of the ban has had a serious adverse effect on his family life in the way that Miss Deacon has articulated.  Although the question of remorse was alluded to in the social enquiry report, it might clearly have been more persuasive if the appellant had been able to address the Magistrate directly on these matters.

 

12.        In any event, as we have said, and as the authorities show, the Court does not have to be satisfied that the sentence below was wrong where there has been a serious procedural error such as this.  Indeed, it is no doubt the case that if the procedure had been properly followed and the appellant had made his mitigation, this sentence could not have been successfully appealed in that it falls within band C and it would have been a sentence reasonably open to the Magistrate.  But that is not the case here because, as we say, the appellant did not have the opportunity of putting forward his points in mitigation.

 

13.        No point is taken by Miss Deacon in relation to the fine which falls fairly and squarely within the bracket, but she urges strongly that we should reduce the period of disqualification.  We agree.  In the light of the failure to hear the mitigation and the need to avoid a sense of grievance we are going to allow the appeal and reduce the period of disqualification to one of 15 months.  Miss Deacon, you shall have your costs.

Authorities

 

 

Ashford -v- A.G. (15^th December, 1994) Jersey Unreported.

 

Veloso -v- A.G. (18^th March, 1996) Jersey Unreported.

 

Williams -v- A.G. (13^th July, 1998) Jersey Unreported.