Jersey Unreported Judgments

Inferior Number Sentencing - Motoring - Breach of Orders

[2020]JRC164

Royal Court

(Samedi)

14 August 2020

Before     :

A J Olsen, Lieutenant Bailiff, and Jurats Ramsden and Averty

The Attorney General

-v-

Gavin Robert Ferguson

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

1 count of:	Neglect of traffic directions, contrary to Article 74(1)(b) of the Road Traffic (Jersey) Law 1956(Count 1).
1 count of:	Driving or attempting to drive a motor vehicle whilst being disqualified from holding or obtaining a licence, contrary to Article 15(4)(b) of the Road Traffic (Jersey) Law 1956 (Count 2).
1 count of:	Driving or being on charge of a motor vehicle with a alcohol concentration above the prescribed limit, contrary to Article 28(1) of the Road Traffic (Jersey) Law 1956 (Count 3).
1 count of:	Using a motor vehicle without a policy of insurance in force in respect of third-party risks contrary to Article 2(1) of the Motor Traffic (Third-Party Insurance) (Jersey) Law 1948 (Count 4).
1 count of:	Failure to provide information as to the identity of the person in charge of a vehicle on a road at the time of the commission of a alleged offence , contrary to Article 86(1)(a) of the Road Traffic (Jersey) Law 1956 (Count 5).

Age:  47. 

Plea: Guilty.

Details of Offence:

The driving offences were all committed as part of a single incident.  The defendant was seen driving his motorcycle the wrong way down the one way system at St Catherine's on 20^th July, 2019 carrying a female passenger.  Police attended St Catherine's and the motorcycle was found and police dog Leo tracked a scent from the motorcycle to the defendant and his passenger.  The key to the motorcycle was found in his pocket.

 

The defendant had been disqualified from driving for 2 years by the Magistrate's Court on 7^th May, 2019 and the motorcycle did not have a valid insurance disc.  On arrest the defendant told the officers he had been drinking and was breathalysed which he failed.  In custody the defendant was served a notice requiring him to identify the person riding the motorcycle which he failed to do.  The defendant provided a urine sample for analysis and it contained no less than 200 milligrams of alcohol in 100 millilitres of urine.  The prescribed limit is 107 milligrams in 100 millilitres. 

 

The defendant stated in interview he had not driven the motorcycle and that he had got a lift up to St Catherine's with the intention for someone to come and look at the motorcycle as he was selling it and he was to spend the night at St Catherine's 'under the stars'.  The defendant pleaded not guilty to the driving offences (other than failing to provide information of the person who was driving).  The defendant had provided a defence case statement where he stated that a fellow inmate Mr Davison was responsible for driving the motorcycle.  Mr Davison initially provided a letter saying that he had driven the motorcycle but evidence was provided that Mr Davison was at work when the offending happened.  The passenger also provide a statement stating that she had been the passenger and the defendant had been driving.  The defendant changed his plea to guilty 35 days before trial was intended to start.

 

The defendant had also breached a Community Service Order by the offending on July 2019.  He had been sentenced on 7^th May, 2019, to 100 hours' Community Service for driving whilst over the prescribed limit, reckless or dangerous driving or attempting to drive a motor vehicle whilst disqualified. 

Details of Mitigation:

Prosecution - little credit for guilty plea given the fact that it was only entered 35 days before trial was to commence, contents of reports prepared noted and certain personal mitigation was available to the Defendant.

Defence - index offences were moderate and distance driven was short, general area was remote, driving took place later at night with no injury damage or accident.  Substantial personal mitigation available to the defendant as detailed in the psychological report and Social Enquiry Report.  Defence sought to argue Probation Order to be imposed.

Previous Convictions:

The defendant has a lengthy record including 41 convictions for 95 offences, which included: 9 offences for driving whilst disqualified/without a licence; 7 offences for driving without a valid policy of insurance and 3 offences for driving whilst over the prescribed limit.

Conclusions:

Count 1:	£250 fine or 1 week's imprisonment in default, concurrent to Count 4.
Count 2:	5 months' imprisonment, concurrent to Count 4.
Count 3:	1 month's imprisonment, concurrent to Count 4.
Count 4:	12 months' imprisonment.
Count 5:	£2,000 fine or 1 month's imprisonment, concurrent to Count 4.

Breach of Community Service Order:  Revoke the Community Service Order and impose 4 months' imprisonment, consecutive to Count 4 of the Indictment.

Disqualification from driving sought for a period of 4 years in respect of Count 3.  12 month disqualification from driving in relation to Count 2.  6 months' disqualification from driving in relation to Counts 1 and 4.  Periods imposed for Count 1, 2 and 4 are to run concurrently to the disqualification imposed in relation to Count 3.

Total:  16 month's imprisonment, 4 year disqualification from driving and requirement to pass prescribed test.

Sentence and Observations of Court:

Count 1:	No separate penalty.
Count 2:	5 months' imprisonment, concurrent to Count 4.
Count 3:	2 month's imprisonment, consecutive to Count 4.
Count 4:	12 months' imprisonment, concurrent to Count 2, but consecutive to Count 3
Count 5:	No separate penalty.

Breach of Community Service Order:  Revoke the Community Service Order and impose 4 months' imprisonment, consecutive to Count 4 and Count 3 of the Indictment.

Disqualification from driving sought for a period of 4 years in respect of Count 3.  12 month disqualification from driving in relation to Count 2.  6 months' disqualification from driving in relation to Counts 1 and 4.  Periods imposed for Count 1, 2 and 4 are to run concurrently to the disqualification imposed in relation to Count 3.

Total:  18 month's imprisonment, 4 year disqualification from driving and requirement to pass prescribed test.

Ms E. L. Hollywood, Crown Advocate.

Advocate A. E. Binnie for the Defendant.

JUDGMENT

THE lieutenant BAILIFF:

1.        On 20^th July last year, the defendant rode his motorcycle the wrong way against a one way system at night.  The standard of his driving evidently left something to be desired in other respects as well; a witness reported that the motorcycle "almost fell over as it slipped on the gravel".  The defendant was almost twice over the prescribed limit for alcohol, he had no insurance and he had been disqualified from driving a motor vehicle only some two months previously.  He was carrying a pillion passenger. 

2.        The defendant maintained that which could fairly be described as a 'cock and bull' story for many months following his arrest.  He sought to implicate another inmate at HM Prison La Moye as the driver.  He maintained this wholly mendacious version of events, even after his pillion passenger had given a statement to the police some seven months later, in which she said that the defendant had been driving that night and she had been the passenger.  The other inmate at the prison later denied driving the motorcycle and it was established by the police that he had been working at a hotel in St Helier that evening.  He subsequently refused to have anything more to do with the case.  It was not until nearly the end of May this year, some 10 months after the commission of the offences, that the defendant finally entered pleas of guilty.

3.        Not only was he driving whilst disqualified as we have said, but he was also in breach of a Community Service Order that had been imposed upon him but a few weeks earlier.  The defendant has an appalling record for a variety of offences including robbery, burglary, violence, drugs, dishonesty and, more relevantly for today's purposes, motoring offences.  He has been convicted of nine offences of driving whilst disqualified, three for driving over the prescribed limit of alcohol and seven for driving without insurance. 

4.        The mitigation in regard to the offending includes that no injuries or damage were caused, there is no evidence of any speeding, it was a remote area and there was little traffic.  Nonetheless, the overall offending was very serious indeed.  We have carefully considered the Social Enquiry Report and the psychiatric substance abuse report and have listened with equal care to all that Advocate Binnie has said on the defendant's behalf.  It is clear beyond peradventure that the events that occurred when the defendant was only nine or ten years old have had a profound and damaging effect upon him.

5.        The Crown has moved for a total sentence of 16 months' imprisonment, being 12 months concurrent in respect of the five counts on the Indictment and 4 months consecutive in respect of the breach of the Community Service Order.  In regard to that, in AG -v- Nafkha 2000/86 the Court stated that as a matter of policy Community Service Orders made in respect of previous offending, which has not been completed, should be sentenced on a consecutive basis where an accused is sentenced for new offences.  At paragraph 10 of the judgment the Learned Deputy Bailiff, as he then was, said

"...each case must turn on its own facts but, in general, if an offender has not completed community service and is then sentenced to imprisonment for a new offence, we see no reason why the defendant should not receive a consecutive prison sentence to reflect the community service that he has not done.  Otherwise by re-offending he serves a lesser sentence than the Court originally thought he should for the original offence".

And we note that that proposition in regard to a consecutive sentence is agreed by defence counsel.  The Crown invites us to revoke the Community Service Order and substitute an equivalent sentence of 4 months' imprisonment for the remaining 100 hours of community service. 

6.        We have been out for a long time because the Court has been giving anxious consideration to the possibility of a standalone Probation Order; but we conclude that the offending in this case is so serious that a custodial sentence cannot be avoided.  We note that many of the benefits and interventions under a Probation Order are available to the defendant at Her Majesty's Prison La Moye, and we urge him to avail himself of them as we understand he has already done to some extent already and we commend him for that.  All that said, it is the judgment of Court that the conclusions moved for by the Crown are too low and in particular do not take account of the fact that driving whilst above the prescribed alcohol limit, is a different type of offence.  A consecutive sentence will therefore be imposed in respect of Count 3.

7.        Can you stand up please Mr Ferguson.  The sentence of the Court is as follows:-

(i)        Count 1, 6 months' disqualification but no other penalty.

(ii)       Count 2, 5 months' imprisonment, concurrent with Count 4 and 12 months' disqualification.

(iii)      Count 3, 2 months' imprisonment, consecutive, and 4 years' disqualification.

(iv)      Count 4, 12 months' imprisonment, concurrent with Count 2 and 12 months' disqualification.

(v)       Count 5, no separate penalty.

All periods of disqualification are to be concurrent.

8.        The Community Service Order of May last year is revoked and a period of 4 months' imprisonment will be substituted, consecutive. 

9.        The total sentence is therefore 18 months' imprisonment in all, and 4 years' disqualification, and by virtue of Article 35(1) of the Road Traffic (Jersey) Law 1956, we order that you to take the required test to drive again once the period of disqualification has expired.

10.      Mr Ferguson, we urge you to use your time remaining at the prison wisely, with the stability that it gives you, and to take full advantage of all the interventions and treatments and training that are available to prepare you for when you are released.  We also strongly recommend that you follow the course that your counsel offered us and refer yourself to the Probation and Aftercare Service when you are released from custody.

Authorities

AG -v- Nafkha 2000/86. 

Road Traffic (Jersey) Law 1956