Jersey Unreported Judgments

Inferior Number Sentencing - motoring offences.

[2016]JRC104

Royal Court

(Samedi)

9 June 2016

Before     :

W. J. Bailhache, Esq., Bailiff, and Jurats Marett-Crosby and Thomas

The Attorney General

-v-

Brocken & Fitzpatrick Limited

Ernesto Lopes de Freitas

Sentencing by the inferior Number of the Royal Court, following guilty pleas to the following charges:

Brocken & Fitzpatrick Limited

1 count of:	Employing a person to drive a motor vehicle of any class or description on a road whilst the person so employed is not the holder of a license authorising him to drive a motor vehicle of that class or description, contrary to Article 4(1) of the Road Traffic (Jersey) Law 1956 (Count 1)
1 count of:	Using a motor vehicle on a road in such condition that danger is caused or is likely to be caused to any other person in or on the vehicle or on a road, contrary to Article 106(1) of the Motor Vehicles (Construction and Use)(Jersey) Law 1998 (Count 2).
1 count of:	Using a motor vehicle on a road when the braking system is not maintained in good and efficient working order and properly adjusted, contrary to Article 18(1) of the Motor Vehicles (Construction and Use)(Jersey) Law 1998 (Count 3).
1 count of:	Using a motor vehicle on a road when the steering gear is not maintained in good and efficient working order, contrary to Article 29 of the Motor Vehicles (Construction and Use)(Jersey) Law 1998 (Count 4).
1 count of:	Using a motor vehicle on a road that does not comply with a requirement with respect to mirrors, contrary to Article 33(1) of the Motor Vehicles (Construction and Use)(Jersey) Law 1998 (Count 5).
1 count of:	Using a motor vehicle on a road when the rear axle weight exceeded the maximum shown on the plate, contrary to Article 86(1)(a) of the Motor Vehicles (Construction and Use)(Jersey) Law 1998 (Count 6).
1 count of:	Using a motor vehicle on a road when the direction indicators are not maintained in good working order, contrary to Article 24(1) of the Road Traffic (Lighting)(Jersey) Order 1998 (Count 7).
1 count of:	Using a motor vehicle on a road when the lamps are not maintained in good working order, contrary to Article 24(1) of the Road Traffic (Lighting)(Jersey) Order 1998 (Count 8).
1 count of:	Driving a motor vehicle of any class or description on a road whilst not being the holder of a license authorising him to drive a motor vehicle of that class or description, contrary to Article 4(1) of the Road Traffic (Jersey) Law 1956 (Count 9).

Plea: Guilty.

Details of Offence:

The charges relate to a vehicle which was driven by De Freitas in the course of his employment for Brocken & Fitzpatrick Ltd ("the Company").  The vehicle was stopped during a road check because it was seen leaning heavily to one side.  The vehicle was impounded for a full inspection and the following defects were identified:-

Dangerous load (Counts 2 and 10)

The truck was loaded with heavy metal roofing sheets which were placed on uneven scaffolding boards.  The truck had a gross weight of 7400kgs, which is 900kgs over the maximum permitted gross weight for that type of vehicle (being 6500kgs).  The metal sheets were insufficiently secured and they had shifted during transit.  The shifted load resulted in a significant weight imbalance and caused the truck to lean heavily to one side.  Due to the tension placed on the retaining strap and the off-side panel, the side panel was protruding out. 

Faulty brakes (Counts 3 and 11)

The rear near side parking brake was found to be inefficient with a 76% imbalance across the axle.  The rear near side foot brake was also found to be inefficient with a 30% imbalance across the axle.  The dashboard brake warning light was illuminated, indicating a brake system failure, and the vehicle should not have been driven. 

Leaking steering fluid (Counts 4 and 12)

Fluid was leaking from the steering components and the power assisted fluid reservoir was empty.  The spread of oil under the vehicle indicated that the steering fluid had been leaking for some time. 

Broken mirror (Counts 5 and 13)

The near side wing mirror was broken and thus did not provide an adequate view to the rear. 

Rear axle weight (Counts 6 and 14)

The placement of the metal sheets resulted in the maximum plated rear axle weight (5000kgs) being exceeded.  The actual rear axle weight was 5300kgs, of which 3340kgs was imposed on the rear near side wheels. 

Damaged indicator (Counts 7 and 15)

The front near side indicator was damaged, exposing sharp edges and producing a white light to the front. 

Inoperative lamp (Counts 8 and 16)

The offside dipped beam lamp was inoperative. 

Licence (Counts 1 and 9)

De Freitas was not the holder of a valid licence permitting him to drive this type of vehicle.  He had been resident in the Island for approximately one year and should have exchanged his Portuguese licence for the Jersey equivalent.  Further, the C1 category of his Portuguese licence had expired in 2013.  Thus, he was not the holder of a valid licence in either jurisdiction permitting him to drive such a vehicle. 

Details of Mitigation:

Guilty pleas.  Had not been aware of the defects (except the defective mirror). In process of introducing new policies and procedures to improve vehicle maintenance.  Company accounts showed an operating loss for 2015. 

Previous Convictions:

Convictions for 78 motoring offences.  Also been dealt with at Parish Hall level for 12 similar offences.  In September 2010, the company was sentenced for offences concerning defective vehicles and was fined a total of £2,000.  In September 2014, the company appeared before the Royal Court for a multitude of offences concerning defective vehicles and was sentenced to a total £24,500 fine. 

Conclusions:

Count 1:	£500 fine.
Count 2:	£3,000 fine.
Count 3:	£3,000 fine.
Count 4:	£3,000 fine.
Count 5:	£500 fine.
Count 6:	£500 fine.
Count 7:	£500 fine.
Count 8:	£500 fine.

Total £11,500 fine.

Costs order sought in the sum of £3,000. 

Sentence and Observations of Court:

Count 1:	£400 fine.
Count 2:	£3,000 fine.
Count 3:	£3,000 fine.
Count 4:	£3,000 fine.
Count 5:	£500 fine.
Count 6:	No separate penalty.
Count 7:	£500 fine.
Count 8	£500 fine.

Total: £10,900 fine.

Costs order made in the sum of £1,500.

12 months given in which to pay. 

Liberty to apply.

Ernesto Lopes De Freitas

1 count of:	Driving a motor vehicle of any class or description on a road whilst not being the holder of a license authorising him to drive a motor vehicle of that class or description, contrary to Article 4(1) of the Road Traffic (Jersey) Law 1956 (Count 9)
1 count of:	Using a motor vehicle on a road in such condition that danger is caused or is likely to be caused to any person in or on the vehicle or on a road, contrary to Article 106(1) of the Motor Vehicles (Construction and Use)(Jersey) Law 1998 (Count 10).
1 count of:	Using a motor vehicle on a road when the braking system is not maintained in good and efficient working order and properly adjusted, contrary to Article 18(1) of the Motor Vehicles (Construction and Use)(Jersey) Law 1998 (Count 11).
1 count of:	Using a motor vehicle on a road when the steering gear is not maintained in good and efficient working order, contrary to Article 29 of the Motor Vehicles (Construction and Use)(Jersey) Law 1998 (Count 12).
1 count of:	Using a motor vehicle on a road that does not comply with a requirement with respect to mirrors, contrary to Article 33(1) of the Motor Vehicles (Construction and Use)(Jersey) Law 1998 (Count 13).
1 count of:	Using a motor vehicle on a road when the rear axle weight exceeded the maximum shown on the plate, contrary to Article 86(1)(a) of the Motor Vehicles (Construction and Use)(Jersey) Law 1998 (Count 14).
1 count of:	Using a motor vehicle on a road when the direction indicators are not maintained in good working order, contrary to Article 24(1) of the Road Traffic (Lighting)(Jersey) Order 1998 (Count 15).
1 count of:	Using a motor vehicle on a road when the lamps are not maintained in good working order, contrary to Article 24(1) of the Road Traffic (Lighting)(Jersey) Order 1998 (Count 16).

Age:  43.

Plea: Guilty.

Details of Offence:

See Brocken & Fitzpatrick above.

Details of Mitigation:

Guilty pleas.  Had not been aware of the defects (except the defective mirror). 

Previous Convictions:

Numerous previous convictions including motoring offences for which he had been sentenced before the Magistrate's Court, most recently in 2003 for driving without a license for which he was fined £100.  Also convictions for careless driving, driving without insurance and driving a defective vehicle, although these were historic. 

Conclusions:

Count 9:	£500 fine.
Count 10:	£250 fine.
Count 11:	£250 fine.
Count 12:	£200 fine.
Count 13:	No separate penalty.
Count 14:	No separate penalty.
Count 15:	£25 fine.
Count 16:	£25 fine.

Total £1,250 fine.

Costs order sought in the sum of £3,000. 

Sentence and Observations of Court:

Count 9:	£400 fine or 7 days' imprisonment in default.
Count 10:	£250 fine or 7 days' imprisonment in default, consecutive.
Count 11:	£250 fine or 7 days' imprisonment in default, consecutive.
Count 12:	No separate penalty.
Count 13:	No separate penalty.
Count 14:	No separate penalty.
Count 15:	£25 fine or 7 days' imprisonment in default, consecutive.
Count 16	£25 fine or 7 days' imprisonment in default, consecutive.

Total: £950 fine.

12 months given in which to pay fine at a rate of £50 per week with liberty to apply.

M. R. Maletroit, Esq., Crown Advocate.

Advocate C. Hall for Brocken & Fitzpatrick Limited.

Advocate J. M. Grace for De Freitas.

JUDGMENT

THE BAILIFF:

1.        The Indictment laid against Brocken & Fitzpatrick Limited and Mr de Freitas concerns breaches of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 and of the Road Traffic (Jersey) Law 1956.  The charges arise out of an incident which occurred on 4^th November, 2015, when a check was conducted in St Lawrence, and a particular truck driven by the second defendant was stopped and subsequently examined and found faulty.  The second defendant was asked to produce a driving license but he was not able to do so because it was not current.  He is charged with a breach of the Road Traffic Law and the company is charged, as his employer, with employing him to drive on it. 

2.        Unfortunately this is not the first occasion in which the company has been before this Court on similar offences and it was as recently as September 2014 when this Court imposed substantial fines upon the company at that time totalling £24,500.  What we said then was that the Court treated the offences as very serious.  In that case there was more than one vehicle, in this case there is only one, but, as we said then, the vehicle is in very poor condition and a danger to employees and the public were on the public road and there seems to have been what was frankly a cavalier approach to the loading of those vehicles.  They were heavily overladen and that of course adds a danger to the public. 

3.        We also pointed out on the last occasions that we thought the Crown should consider whether or not a prosecution in circumstances such as these should not have been brought under the Health and Safety at Work legislation because, in essence, what was happening was that employees were provided with an unsafe system of work through the vehicles they were required to drive and, as a result both the employees and, indeed, members of the public, were put at risk.  We endorse the comments we made on the last occasion; we still consider that they were correct.  Nonetheless we are obviously sentencing the defendants before us on the offences with which they have been charged. 

4.        I am going to deal first with the offences committed by the second defendant who was employed by the first defendant.  In relation to driving without a license, it is his second offence.  The Crown has moved for a fine of £500, which is the maximum, and we take the view that there must be the possibility of a more serious offence of this kind and therefore we are going to reduce the Crown's conclusions slightly to £400 on that count.  In relation to driving with a dangerous load, the second defendant is fined £250 and on Count 11 in relation to the defective brakes, £250.  The second defendant is also charged with an offence involving leaking steering fluid.  We are not sure this is a defect in the vehicle which it would be reasonable to have expected him to have spotted.  It was a defect but we are not sure that we can lay that at his door and therefore we are not going to impose a separate penalty in relation to that count.  There will be no separate penalty on Counts 13 and 14.  On Count 15, the front indicator was damaged, there will be a fine of £25 and on Count 16, the offside dip beam was inoperative, a fine of £25.  In relation to each of those counts on which we have imposed a fine, there will be a sentence of 7 days' imprisonment in lieu if the fine is not paid, and those 7 days' imprisonment would operate consecutively.  The total fine is £950 and it should be paid at the rate of £50 per week.  If the second defendant finds himself unable to pay at that rate then it is his duty to come back to Court and ask for further time because otherwise the prison sentences in default will become operative. 

5.        We add in relation to the second defendant that we have noted the terms of his record and also the early guilty plea. 

6.        We now turn to the first defendant.  Advocate Hall told us that it was accepted that the company had, in previous times, a cavalier approach that was prior to 2014.  She told us that the company had changed its tune; that there had been a change in management and she asserted that the company was determined that this would be the last time it would be in court with charges of this nature.  We hope that is right because the company's record is truly appalling in this respect with some 78 convictions for this type of offence. 

7.        Advocate Hall submitted that there were all sorts of changes which had been introduced following these particular charges and she produced the driver's handbook and a driving at work policy with a vehicle safety check list which, although not yet approved by the Board of the company, she thought would be considered at Board level and become part of the company's arrangements for its employees.  We think that is certainly a good start but courts have frequently also noted that it is all very well having a handbook but actually there is a management responsibility.  The handbook is essential but the management responsibility remains and that is essential as well. 

8.        We have taken into account the lack of management in relation to these particular charges and that is really the reason why, coupled with the company's previous record and the danger to the public, that we think that largely the fines moved for by the Crown are correct.  We are going to reduce some of them for reasons which I will give but largely we think that they are correct, as I have said. 

9.        On Count 1, employing a person who had no license to drive, the company is fined £400, matching the fine on the driver.  Count 2; £3,000, Count 3, in relation to brakes, £3,000, Count 4, in relation to steering fluid, £3,000, Count 5 in relation to the door mirrors, £500.  On Count 6, the axle weight, we are not convinced that this is an additional charge to Count 2 and we therefore impose no separate penalty in that respect.  Count 7, the front indicator damage, £500, Count 8; £500 so the total imposed by way of fine is £10,900. 

10.      We wish to say something about the argument from Advocate Hall that there was disparity which we have considered.  Of course there is some disparity between what is imposed by way of fine on the employee and what has been imposed on the employer.  We think though that that disparity matches the respective culpability and of course in any event when one is imposing a fine, one has regard to the ability of the defendant to pay.  And in this case we think that management responsibility which the company has is the primary reason which justifies that disparity. 

11.      We give the company 12 months to pay as has been requested. 

12.      In relation to prosecution costs it is commonplace in offences of this kind for the Crown to seek a contribution towards prosecution costs, Advocate Hall says that £3,000 is too high and we think she is right.  We have made an assessment of what we think would have been the costs to the public of the costs involved at Driver and Vehicle Standards and Transport and Technical Services Department and also the costs which we think ought to have been incurred by the Crown in preparing a case for trial and we order the company to prosecution costs in the sum of £1,500.  Those should be paid within 12 months as well.  Mr Fitzpatrick, you have just been appointed the managing director of this company and your counsel has spoken very fluently about everything that should have been put in place and now has been put in place, but at the end of the day it is going to be down to you as the management to make sure that it is and we hope very much that we will not see you here again. 

Authorities

Motor Vehicle (Construction and Use)(Jersey) Order 1998.

Road Traffic (Jersey) Law 1956.

AG-v-Holiday Tours Limited [2007] JRC 244.

AG-v-Holiday Tours Limited [2011] JRC 036.

AG-v-Brocken & Fitzpatrick, O'Hara, Rossiter and Rejak [2014] JRC 183.