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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG -v- R [2016] JRC 196 (28 October 2016) URL: http://www.bailii.org/je/cases/UR/2016/2016_196.html Cite as: [2016] JRC 196 |
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Inferior Number Sentencing - reasons regarding sentence handed down.
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Before : |
J.A. Clyde-Smith, Esq., Commissioner, and Jurats Fisher and Liston |
The Attorney General
-v-
R
R. C. P. Pedley, Esq., Crown Advocate.
Advocate L. J. Glynn for the Defendant.
JUDGMENT
THE commissioner:
1. On 14th October, 2016, the Court sentenced the defendant in respect of a number of road traffic offences. We now set out our reasons.
2. The case raised the issue of whether there were "special reasons" giving the Court a discretion as to whether or not to disqualify the defendant from driving.
3. The defendant has seven children aged 13, 12, 9, 7, 6, 5 and 2, the older two of whom live with her mother abroad. The relationship between the defendant and the father of the youngest child had broken down in acrimonious circumstances. The defendant had made allegations of domestic abuse against the father and he had pleaded guilty to a charge of harassment of the defendant. The defendant had herself been charged with an offence of grave and criminal assault on the father's new girlfriend, the cause of these matters being referred to the Royal Court. She has subsequently been acquitted.
4. In January 2016, there were private law proceedings before the Royal Court between the defendant and the father in relation to the youngest child, who the defendant wished to remove from the jurisdiction (with her other four children she was looking after in Jersey) to live with her mother abroad. There are two parts of the judgment of Le Cocq, Deputy Bailiff, (unpublished) dated 28th January, 2016, which give helpful background to the defendant's state of mind at the time of these road traffic offences:-
5. Turning now to the road traffic offences which took place on 1st February, 2016, at around 3pm the police received a call from a friend of the defendant, Miss A, who was concerned about the defendant's welfare. The police located the defendant near Miss A's home at about 6pm and after talking to her, considered that she was not a danger to herself. A second call was made to the police at around 7pm by the defendant's mother, who had seen a Facebook posting by the defendant which concerned her. Officers were deployed to locate the defendant once more.
6. At about 7.30pm an officer went to the defendant's home address. Her vehicle was not there and the house was dark. While walking back to the police motor cycle, the officer saw a car matching the description of the defendant's car. It turned into La Place Noel and stopped at the junction of Le Chemin des Maltières. As the officer began walking towards the car, it drove off, but not before he had taken the registration number, confirming that it was the defendant's vehicle.
7. The officer ran to his motor cycle and drove along Le Chemin des Maltières, following the route the car had taken. Driving past Gorey Youth Club, he saw a car in the car park with its lights turned off. Suspecting that it was the defendant, he parked his motorcycle and approached the car, at which point it started to reverse. The officer stood in front of the driver's side of the front windscreen and raised his hand, gesticulating for the defendant to stop. The defendant continued to reverse, despite looking directly at the officer. In doing so, she crashed into a silver Mercedes directly behind her, causing minor damage.
8. The officer shouted "Stop!" but she paid no attention. In an attempt to prevent further damage, he tried to open the driver's door and turn the engine off, but it was locked. The defendant drove away from him back out on to the road at speed with none of the car's lights on. The officer was concerned as the Youth Club was open and several young people were outside the entrance; the road conditions were poor as it was raining.
9. Shortly after this, another officer driving down Grouville Hill saw the defendant driving in the opposite direction at 7.40pm with the car appearing to swerve as it went past.
10. The defendant was not seen driving again that evening. However, about 20 minutes after being seen on Grouville Hill, another officer identified the defendant walking in a westerly direction along the pavement on the coast road close to the junction with Rue du Maupertuis. She denied driving that evening and was noted to be unsteady on her feet, emotional and volatile. The defendant disclosed that she had been drinking alcohol and intoxicants could be smelt on her breath. She said "I have had a few drinks at Miss A's about an hour ago"- "I had about 3 cans of Stella". The defendant agreed to provide a roadside specimen of breath, which she failed. She was arrested and cautioned on suspicion of driving whilst over the prescribed limit.
11. The defendant was first taken to the hospital, where she became aggressive and uncooperative and had to be calmed down before the attending doctor allowed her release. Whilst in custody, the defendant was asked when she had had her last drink, to which she replied "I had my last drink walking at Le Marais. I consumed 4 cans of Stella sat in the bus shelter at Le Marais after parking my car". The officer noted this in her pocket notebook, although the defendant refused to sign the entry.
12. After arrest, the defendant was taken to the 'Intox Room' and asked to provide a breath sample. The full exchange is captured on CCTV. The officers asked her to do so twice and warned her a number of times that failing to do so was an offence. She refused to provide the sample and when asked why she said that she wanted legal advice. To all the routine questions put to suspects during such a procedure she replied "No comment". When asked if there was any medical reason why she could not give a sample she replied "Don't know". No sample was obtained.
13. The defendant's car was found outside a property on Le Clos de la Mare in the early hours of the following morning. There is no known connection between this property and the defendant. The car had a flat tyre and there was fresh collision damage to the front nearside wheel and rear bumper and on the wheel arches areas on both sides of the vehicle. Inside the vehicle were four empty cans of lager and boxes of medication with the odd pair of pills taken out of each box. In addition, a nearly full vodka bottle was also found on the front passenger seat.
14. At interview later that day, the defendant stated she had been upset and had asked her friend, Miss A, to take two of her children to give her some "head space". She explained that when she had gone home she had seen the officer and "thought I was getting set up again ... so I thought I'm not spending another night in custody so I reversed my car and drove away."
15. When asked why she ignored the officer in the Gorey Youth Club car park, she explained she didn't stop the vehicle as she panicked. She said she hadn't realised she had crashed into the Mercedes. She did not recall the police officer asking her to stop and added that driving without her lights on was not intentional.
16. When asked about her manner of driving, specifically as observed coming up Grouville Hill, she said she was "very emotional and crying and if anything, if there was any swerving or whatever, it probably would have been from me crying and wiping my eyes and maybe losing focus or whatever."
17. She stated that she drove to St Clement and drank a couple of cans of Stella in her car before getting out and starting to walk to her friend's house, which is when she was arrested. She added that she wasn't driving over the limit as she had walked. In a further interview, the defendant explained that after she drove away from the officer at Gorey Youth Club, she continued to drive until she parked her car. She said that the battery had died (she clarified in evidence that she meant the battery of her mobile phone) and she had then remained in the car drinking four cans of lager. She then added that she had driven over "something" as she entered the estate, and it had "popped" her front tyre. She said she was "upset and crying and panicky".
18. The defendant pleaded guilty to one count of failing to stop her vehicle on being so required by a police officer, contrary to Article 51(1) of the Road Traffic (Jersey) Law 1956 ("the Road Traffic Law") and one count of driving without due care and attention, contrary to Article 25(1) of the Road Traffic Law. Both these counts arose out of the incident at the car park at the Gorey Youth Club. A plea of not guilty to one count of careless driving in relation to her driving on Grouville Hill was accepted by the Crown. Finally, she pleaded guilty to one count of failing to provide without reasonable excuse a specimen of breath when required to do so, contrary to Article 30(7) of the Road Traffic Law.
19. By reference to the Magistrate's Court Sentencing Guidelines, the Crown sought the following:-
(i) Count 1 (failing to stop) a fine of £300 (the maximum penalty being £500).
(ii) Count 2 (driving without due care and attention) a fine of £700 (the maximum penalty being £5,000).
(iii) Count 4 (failing to provide a sample) 100 hours' Community Service Order, equivalent to 4 months' imprisonment, and a disqualification from driving of 42 months, with a requirement to retake the driving test.
20. Failing to provide a sample, an offence of obstruction, is governed by Article 30 of the Road Traffic Law. Articles 30(1) and (2) provide:-
21. Article 30 was engaged in this case because the police were investigating an offence under Article 28 of the Road Traffic Law (driving whilst over the prescribed limit) and the requirement to provide a specimen of breath was made at the police station.
22. Article 30(7) provides for the offence:-
23. It was not asserted by the defendant that she had a reasonable excuse for failing to provide a specimen of breath.
24. Articles 30(8) and (9) then go on to provide this in relation to disqualification: -
25. The defendant has a previous conviction under Article 28 on 22nd November, 2010, and was therefore subject to a mandatory disqualification of not less than 3 years unless the Court, for special reasons, thought fit to order otherwise.
26. Special reasons were defined by Lord Goddard CJ in Whittall v Kirby [1947] KB 194 at page 201:-
27. In that case, the justices had found special reasons to exist because the defendant earned his living as a lorry driver. The English Court of Appeal found that this could not amount to special reasons as it was a circumstance peculiar to the defendant.
28. Whittall v Kirby was applied by the English Court of Appeal in R v Wickins [1958] 42 Cr. App. R. 236, where special reasons were found to exist because, unbeknownst to the defendant, he was suffering from diabetes and the offence would not have been committed at all, because he had not taken sufficient drink to affect the mind of an ordinary man who was not suffering from that disease. In confirming the decision in Whittall v Kirby, the English Court of Appeal identified four conditions that had to be satisfied, namely it must:-
(i) be a mitigating or extenuating circumstance;
(ii) not amount in law to a defence to the charge;
(iii) be directly connected with the commission of the offence; and
(iv) be one which the Court ought properly to take into consideration when imposing sentence.
29. Whittall v Kirby and R v Wickins were applied by this Court in AG v Clark [1987-88] JLR 448. Tomes, Deputy Bailiff, made reference at p. 471 to these extracts from Wilkinson's Road Traffic Offences.
30. In that case, the defendant had moved, not driven, a motor cycle a short distance along a street in circumstances where he was unlikely to have been brought into contact with or pose any danger to members of the public.
31. In McCormick v Hitchings [1988] RTR 182, the defendant parked his car in the car park of a pub some three days before the offence. The defendant was in the pub when he was informed that youths had pushed his car into the back of another vehicle and the police had been called. On arrival, he was standing next to his vehicle. He confirmed that he was the owner of the vehicle, but refused to take a breath test on the basis that he had no intention to drive the vehicle. He was arrested and taken to the police station, where he refused to provide a sample of breath for analysis, due to his annoyance at being arrested, an annoyance with which Watkins LJ expressed some sympathy.
32. The justices had been satisfied that there was no question of the defendant driving or attempting to drive and they did not impose a disqualification, which in that case was discretionary. However, the question of endorsement of his licence was obligatory unless the court found special reasons, which the justices, who had not been properly directed on the law, did not consider applied. It was held on appeal that no reasonable bench of justices properly directed on the law could have avoided the conclusion that special reasons did apply. Quoting from the judgment:-
33. In AG v Mackie, the Relief Magistrate, Nuno Santos-Costa, gave a written judgment on special reasons following a hearing on 22nd April, 2013. In that case, the defendant had gone out on Sunday 19th May, 2013, to meet up with some friends and consumed alcohol during the day. In the early hours of the 20th May, realising he had drunk too much, he asked a friend for a lift home in his van. On the way home, the van crashed into a wall of a property, at which point the defendant got out of the van, took his bicycle from the back where had placed it before and rode a short distance home. His friend, who had been driving the van, left the scene of the accident and carried on driving.
34. The defendant was subsequently arrested and was charged with violently resisting arrest, to which he pleaded guilty. He was also charged with failing to provide a sample of breath on two occasions, to which he pleaded guilty. It was agreed by both the prosecution and the defence that the defendant did not drive a motor vehicle at any time between going out with his friends on 19th May, 2013, and his arrest on 20th May, 2013. It was also agreed that he had no intention of driving any motor vehicle at the relevant time, nor was any vehicle he was entitled to drive anywhere near the vicinity.
35. Having set out the criteria from Archbold (derived from Whittall v Kirby) and the case law, the Relief Magistrate said this at paragraphs 11 and 12:-
"11. Initially, the Court was troubled by the criteria as set out in Archbold referred to above with particular reference to whether the absence of driving or an intention to drive was in fact directly connected with the offence of failing to provide a sample. The reason for the Court being troubled by this was that clearly failing to provide a sample when required to do so by police is an offence in itself and not directly related to whether or not the accused was driving a vehicle. Having reviewed the authorities referred to above however, it is clear that there is a correlation between failing to provide a sample and driving a motor vehicle. The purpose of asking someone to provide a breath sample is to establish what level of alcohol is in their system in order to establish whether that person is over the legal limit for driving a vehicle and it seems to me that in those circumstances at least there is a direct link between the two when it comes to sentencing particularly regarding the question of 'special reasons'.
12 Advocate Corbel in her Skeleton Argument also raised the comparison between the 'special reason' of 'shortness of distance driven' as identified in the case of AG v Clark referred to above and argued that it would be strange indeed if driving a short distance whilst under the influence of alcohol amounted to a 'special reason' when not driving a vehicle at all did not. Based upon this logical proposition and the authorities that were placed before the court by Advocate Corbel, the Court concludes as a matter of law, that where it is established that the person who has failed to provide a sample of breath has not driven and had no intention of doing so at all material times then this does amount to a special reason giving me a discretion as to whether to disqualify or not."
36. We respectfully agree with that conclusion. We would add that the connection between the offence of failing to provide a sample and whether or not the defendant had been driving arises out of the driving offences that the police are investigating pursuant to Article 30(1), and which investigation entitles them to request a sample. The failure to give a sample obstructs that investigation, and, in the context of Article 28, from enabling the police to establish the levels of alcohol in the defendant's system when she was driving.
37. It was accepted by Advocate Glynn, for the defendant, that the burden of proof in relation to the existence of special reasons was on the defendant and that the standard of proof was the balance of probabilities (see Archbold 16th Edition, 253).
38. The Court heard evidence from the defendant on the issue of special reasons. Because of her emotional state on the day in question, she could only remember some of what happened, but in essence, and for these purposes, her evidence was that she had not consumed any alcohol whilst driving that night. Although she had talked to the police when they were called out for a welfare check, she said she panicked both when she saw them outside her home and when she was approached at the car park at the Gorey Youth Club. Having driven off against the instruction of the police officer, she realised that she would be arrested and decided to drive to Miss A's house (where her two children were) in order to pull herself together. She chose quiet roads in order to avoid the police. She was trying to find somewhere to park when her tyre popped so she pulled in to park. She needed to calm herself down and could only remember drinking two cans of Stella lager in the car listening to music for what she thought was half an hour.
39. As she had purchased four cans of Stella earlier that evening and there were four empty cans found in the car, she accepted in cross-examination that on her evidence she must have drunk all four cans after she had parked. When the short time frame between her being seen on Grouville Hill and her arrest was put to her, 20 minutes, she said she would have gulped down the lager.
40. She then proceeded to walk to Miss A's house and was arrested on the way there. She had no memory of, or explanations for, her denial to the police that she had been driving at all, her statement that she had drunk at Miss A's house an hour ago and that she had consumed four cans of Stella lager in the bus shelter at Le Marais after parking her car.
41. In terms of her refusal to provide a sample, the defendant said nothing the police said made sense to her and she needed legal advice. She said that on the way back to her cell, she realised belatedly the importance of giving a sample and offered to give one. This had not been raised by the defendant before (the prosecution having attended the hearing without police witnesses on the basis of agreed facts) and Advocate Glynn informed us that there was nothing in the custody records to show that such an offer had been made. It was not a point pursued by Advocate Glynn on behalf of the defendant.
42. Having had one previous conviction (which she said was a morning after offence), she said that she would never put herself in that situation again; she had never deliberately driven under the influence of alcohol. On this occasion she only drank after she had parked and had no intention then of driving.
43. The special reasons relied upon by the defendant were that she did not consume alcohol prior to or whilst driving and there was no prospect of her driving once she had consumed alcohol. Advocate Glynn accepted that in the cases cited above, the defendant had not driven at all and had no intention of driving whereas, in this case, the defendant had driven and had pleaded guilty to committing two road traffic offences during the course of her driving. However, Advocate Glynn submitted that the authorities, in particular the case of AG v McCormick and the local case of AG v Mackie confirm that the key consideration is whether the defendant was driving or had the intention to drive "at the material time". The material time can only refer, she said, to a time at which the defendant was under the influence of alcohol. It was open to the Court to find that the defendant had not consumed alcohol prior to, or during the course of, her driving and that she had no intention to drive once she had consumed alcohol.
44. In discussion Advocate Glynn accepted that if she was correct, the finding of the Relief Magistrate in AG v Mackie would need to be amended in this way:-
"Where it is established that the person who has failed to provide a sample of breath has not driven under the influence of alcohol and had no intention of doing so at all material times then this does amount to a special reason ..." (underlined words added)
45. These added words, however, beg the very question that the provision of samples is supposed to resolve, namely whether the defendant had driven under the influence of alcohol. As Advocate Pedley pointed out, this would require the Court to restrict the material time to when the defendant had driven under the influence of alcohol, allowing the defendant to run the "hip-flask defence" that she had only consumed alcohol after driving.
46. We rejected Advocate's Glynn's argument. In our view, the material time means the time under investigation by the police, pursuant to Article 30(1). In this case, the police were investigating whether the defendant had been driving whilst over the prescribed limit near her home, at the Gorey Youth Club and at Grouville Hill. The whole point of requiring a sample of breath was to assist the police in establishing the level of alcohol in her system when she had been seen driving on these occasions. To refuse to give a sample, without reasonable excuse, was to obstruct the police in their investigations; a serious offence.
47. In McCormick v Hitchins, the justices had found that there was no question of the defendant driving or attempting to drive at all. He was called out to the car park because his car, which he had parked three days before, had been pushed by youths into another car. In AG v Mackie, it was agreed by the prosecution and the defence that the defendant did not drive at any time after going out with his friends and his subsequent arrest, and had no intention of driving any motor vehicle.
48. In this case, the defendant has admitted driving her vehicle that evening and was seen by police on three occasions doing so shortly before her arrest, when she was unsteady on her feet, smelt of alcohol and failed a roadside test.
49. An important consideration in cases such as this is whether the defendant has been brought into contact with or posed any danger or menace to the public. In AG v Clark, the defendant had pushed his motor cycle a very short distance in circumstances in which he was unlikely to be have been brought into contact with or pose any danger to other members of the public. In McCormick v Hitchins and AG v Mackie neither defendant had driven at all, and there was therefore no question of them posing a danger to the public.
50. In this case, the defendant admits driving and was therefore in contact with members of the public at a time at which, had the investigation not been obstructed by her, she may have been over the prescribed limit. The manner in which she was seen to be driving suggests that she posed a danger to the public.
51. We found that on the facts of this case there were no special reasons giving the Court a discretion not to disqualify the defendant.
52. We should add that the Court was not persuaded by the defendant that she had only consumed alcohol after she had stopped driving. Although the defendant tried to cast some doubt on the timings, the police log shows clearly a 20-minute gap between her being seen driving up Grouville Hill and being arrested. During that time, she had to make her way through the quiet lanes to where she eventually ended up having a puncture, park her car, drink four cans of Stella lager and then walk some distance to the coast road. We did not accept her suggestion that in order to achieve this, she had gulped down the four cans of lager. We found that the defendant had consumed alcohol before or whilst driving.
53. In the view of the Court, there was considerable mitigation available to the defendant, who, at the time, was suffering great stress and anxiety, as made plain in the Court's judgment referred to above. She was in an emotional and volatile state which clouded her judgment. We also took into account the very real logistical difficulties the mandatory disqualification would create for this large family.
54. She is in receipt of Income Support of £490 (for her and the five children she is looking after) and her rent is paid by Social Security. Her total savings of £1,000 were held by the Viscount for surety and due to be released to her.
55. The Court took the view that Counts 1 and 2 arose out of the same incident at the car park at the Gorey Youth Club and that it was appropriate therefore, to impose one penalty only for that incident. The Court therefore imposed no penalty under Count 1 and a fine of £600 under Count 2, admittedly the lowest in the range set out in the Magistrate's Court Guidelines but in our view justified in these particular circumstances.
56. The failure to provide a sample came within Band B of the Magistrate's Court Guidelines, namely a deliberate refusal, which has a starting point of 3 months' imprisonment and a range of 2 - 4 months' imprisonment. The Crown had sought an order for community service as an alternative to imprisonment, recognising the defendant's child care commitments. The social inquiry report advised that these commitments would make it difficult for the defendant to undertake a weekend placement. A weekday placement was available, but that was dependent upon the father of the youngest child (with whom the defendant now had better relations) being available to care for her, which was uncertain.
57. We were concerned that imposing community service would be setting the defendant up to fail, but at the same time the offence was too serious to warrant a fine, which the defendant would, in any event, struggle to discharge on top of the penalty already imposed. Imprisonment would have had far reaching implications for the welfare of the five children in her care. Accordingly, the Court imposed a sentence of 4 months' imprisonment upon the defendant, suspended for 1 year, under the provisions of Article 2 of the Criminal Justice (Suspension of Prison Sentences) (Jersey) Law 2003.
58. The defendant was also disqualified for 3 years from the date of her conviction, namely 22nd April, 2016, (at which point an interim disqualification had been imposed) with a requirement to retake the driving test. The Court ordered that the fine of £600 was to be payable as to £400 from the monies held by the Viscount and the balance at the rate of £30 per week.
