Jersey Unreported Judgments

[2003]JRC204

ROYAL COURT

 

 

(Superior Number exercising the appellate jurisdiction conferred upon it

 

 by Article 22 of the Court of Appeal (Jersey) Law, 1961)

14^th November, 2003

 

 

Terry John MAHE

-v-

The Attorney General

 

Application for an extension of time within which to apply for leave to appeal and for leave to appeal against that part of a total sentence of 3 years' youth detention, with 24 months' disqualification from driving (to run from the date of release from detention), as relates to the period of disqualification from driving, passed on 2^nd May, 2002, by the Inferior Number of the Royal Court, following a guilty plea to:

 

2 counts of:	being carried in a motor vehicle without the owners consent, contrary to Article 28(1) of the Road Traffic (Jersey) Law 1956 (counts 4, 31 [9 similar counts taken into consideration] on each of which counts a sentence of 6 months' youth detention was passed);
2 counts of:	breaking and entering with intent to commit a crime (counts 6, 40, on each of which counts a sentence of 18 months' youth detention, was passed);
1 count of:	taking a motor vehicle without the owners consent, contrary to Article 28(1) of the Road Traffic (Jersey) Law  1956  (count 7 [18 similar counts taken into consideration] on which count a sentence of  12 months' youth detention was passed);
1 count of:	driving a motor vehicle without a licence, contrary to Article 6(2) of the Road Traffic (Jersey) Law 1956 (count 8 [20 similar counts taken into consideration] on which count a sentence of £100 fine or 1 week's youth detention in default of payment was passed);
1 count of:	using a motor vehicle uninsured against third party risks, contrary to Article 2(1) of the Motor Traffic (Third Party Insurance)(Jersey) Law, 1948  (count 9 [20 similar counts taken into consideration], on which count a sentence of  12 months' youth detention with 24 months' disqualification from driving was passed;
8 counts of:	aiding/assisting/participating in malicious damage (counts 10A, 12A, 14A, 16A, 17A, 18A, 20A, 50A, on each of which counts a sentence of  6 months' youth detention was passed);
4 counts of:	attempting to take a motor vehicle without the owners consent, contrary to Article 28(1) of the Road Traffic (Jersey) Law 1956 (counts 11, 33, 35, 36, on each of which counts, a sentence of  6 months' youth detention was passed);
1 count of:	Illegal entry (count 15, on which count a sentence of 6 months' youth detention was passed);
1 count of:	malicious damage (count 19, on which count a sentence of 6 months' youth detention was passed);
2 counts of:	aiding/abetting offence under Road Traffic (Jersey) Law 1956 contrary to Article 44 of that Law (counts 23, 29, on each of which counts a sentence of 3 months' youth detention was passed;
1 count of:	getting onto a vehicle parked in road, contrary to Article 29(2) of the Road Traffic (Jersey) Law 1956 (count 32, on which count a sentence of  £100 fine or 1 week's youth detention in default of payment was passed);
1 count of:	aiding/assisting/participating in breaking and entering and larceny (count 38A, on which count a sentence of 18 months' youth detention was passed);
1 count of:	aiding/assisting/participating in breaking and entering with intention to commit a crime (count 40, on which count a sentence of 18 months' youth detention was passed).

 

Counts 7 - 9 concurrent; all breaking and entering offences concurrent, but consecutive to 7 - 9; all malicious damage counts concurrent, but consecutive to all other sentences.  All other sentences and default sentences concurrent; disqualification from driving to start from date of release from prison.  Total: 3 years youth detention with 24 months' disqualification from driving to start from date of release from prison.

 

[On 8th March, 2002, the Crown accepted not guilty pleas to counts 5, 5A, 10, 12, 14, 15, 16, 17, 18, 20, 38, 48, and 50; the remaining counts on the indictment relate to two co-defendants, who have not appealed].

 

The application for leave to appeal placed directly before the plenary Court, without first being submitted to a Single Judge for determination.

 

Advocate S.E. Fitz for the appellant;

Mrs. S. Sharpe, Crown Advocate.

 

JUDGMENT

 

the bailiff:

1.        This is an application for leave to appeal out of time and for leave to appeal against a sentence of 24 months' disqualification for holding a driving licence in as much as the sentence was expressed to come into force from the date of the applicant's release from prison.

2.        The applicant was sentenced on 2nd May 2002 to a total of 3 years' youth detention for a large number of offences involving dishonesty, malicious damage and sundry motoring infractions.  He was also sentenced to two years' disqualification for holding a driving licence concurrently on a number of counts.  In passing sentence upon the applicant, the Court stated -

"There is also disqualification from driving for two years to commence from release."

It is against that commencement date that the applicant seeks leave to appeal.  Miss Fitz contends that it was not open to the Court to defer the operative effect of the disqualification in that way, and that the disqualification must date from the day upon which it was imposed. 

3.        The first hurdle to be overcome relates to the delay in applying for leave to appeal.  The relevant period within which a notice of appeal is required to be filed is ten days from the date upon which sentence was imposed.  Sentence was imposed on 2nd May 2002 and the notice was not filed until 17th February 2003.

4.        The explanation given by the applicant is that he was not aware of this possible avenue of appeal until a few days before his notice was filed.  It is contended on his behalf that he did not receive adequate legal advice from his advocate after sentence was imposed.  An affidavit has been filed by his then advocate deposing that he was never asked for advice by the applicant but that in his view no grounds for appeal existed.  Counsel for the applicant has relied upon AG -v- Fossey (1982) JJ 223 as authority for the proposition that it is appropriate to have regard to the possibility that the appeal might succeed in determining whether an extension of time should be given.  We turn therefore to consider the merits of the appeal.

5.        Counsel relied upon two English cases.  In R -v- Sibthorpe (1973) 57 Cr. App. R. 447, an unreported decision of the Court of Appeal of 15th February 1973, the applicant had been sentenced to a disqualification from driving of four years to run consecutively to a period of disqualification previously imposed.  May J stated -

"One turns then to the question of disqualification.  As I have mentioned, the sentence imposed was a disqualification of four years on each of the two counts concurrent with each other and consecutive to the period of disqualification which was then in force; that was a disqualification which would have ended on November 10, 1972.  It is, however, clear from decisions of this Court in Canfield [1971] R.T.R. 449, and Bain (unrep.) decided in this Court on November 24, 1972, that consequent upon the amendment of section 5(5) of the 1962 Act by section 1(2) of the Road Traffic (Disqualification) Act 1970 no period of disqualification for a driving offence can be made consecutive to an existing period of disqualification save under what is called the "totting-up" procedure under section 5(3) of the Road Traffic Act 1962.  Consequently, in any event the period of disqualification imposed in this case could only have been imposed to commence at the date of trial and should not have been made consecutive to the period of disqualification already subsisting."

6.        Counsel also referred us to R -v- Meese (1973) 57 Cr. App. R 568 where consecutive periods of disqualification had been imposed.  Bean J, giving the judgment of the Court of Appeal stated -

"It is in those circumstances that Mr.  Baker, on behalf of the applicant, invites the Court to say that in accordance with several recent cases it is manifest that these consecutive periods of disqualification should not be sustained.  Disqualification starts to run as soon as it is ordered, save where section 5 (5) of the Road Traffic Act 1962, now replaced by section 93 (3) of the Road Traffic Act 1972, applies.  Thus, except where the totting-up applies, disqualifications run concurrently both with those ordered by the same Court at the same hearing and with those previously ordered by the same or another Court on another occasion.

Apart from the exceptions referred to there is no power to make a sentence of disqualification consecutive on another period of disqualification.  See Higgins, a Court of Criminal Appeal case, November 12, 1962 (unrep.).  The two offences to which this applicant pleaded Guilty, namely causing death by dangerous driving contrary to section 1 of the Road Traffic Act 1960 and driving a motor car with excess alcohol in his blood contrary to section 1 of the Road Safety Act 1967, do not fall within the exceptions under section 5 (5) of the 1962 Act.

It follows that consecutive orders of disqualification could not be imposed, there being no power, apart from statutory authority, to make a sentence of disqualification consecutive with another period of disqualification.  See Graham [1955] Crim. L. R. 319; Johnson, an unreported case of the Court of Appeal, Criminal Division, on July 14, 1972; and Bain [1973] R.T.R. 213."

7.        Miss Fitz submitted that these cases, although not binding, were highly persuasive authority for the proposition that a period of disqualification cannot be postponed and must operate from the date on which it is imposed.

8.        Mrs Sharpe, for the Attorney General, contended that it was open to the Court to set its own policy on a matter of this kind, and that the English decisions should not be followed.  She submitted that there was logic in directing that a disqualification should come into effect when the offender regained his liberty.  A disqualification for holding a driving licence would have no practical effect if, as in this case, the offender was in prison or youth detention during most or all of the period of disqualification.

9.        The Court was initially drawn to this argument because the proposition that the Court should pass a sentence which it knows to be otiose, in the sense that the disqualification will not have any punitive effect, is not prima facie attractive.  On closer analysis, however, we think that the argument is outweighed by other considerations.  It is unfortunate that the English cases to which we have been referred state their conclusion in rather bald terms without justifying it other than by asserting that there is generally no statutory authority for a consecutive disqualification.  It may be, but we speculate, that the conclusion is the result of an inference drawn from the existence of a statutory authority for consecutive disqualifications under the "totting up" procedure, which does not of course form part of our law. 

10.      Be that as it may, the other considerations to which we have referred relate to the practical results which would flow from an acceptance that the Court did have jurisdiction to postpone the operative effect of a disqualification.  The first difficulty lies in establishing for the purposes of enforcement the precise date of the applicant's release.  This is obviously important in terms of establishing the date upon which the disqualification comes to an end.  The release date depends to an extent upon a prisoner's conduct whilst in prison.  He is entitled to remission for good conduct but that privilege may be curtailed in certain circumstances. The date of a prisoner's release is therefore determined administratively by the Prison Governor and is not, so far as we are aware, a matter of public record.  It may be that this difficulty could in part be overcome by administrative notification by the Prison Governor to the police so that they would be aware of the date of release and consequently when the period of disqualification had come to an end.

11.      Secondly, and more importantly, we take judicial notice of the fact that the Prison Governor now exercises with some frequency his power under the Prison (Jersey) Rules 1957 to allow conditional early release.  Sometimes this takes the form of permitting a prisoner to obtain employment during the day on condition that he returns to the prison before a certain hour of the evening.  Sometimes it takes the form of early release for a particular period or for a particular purpose.  Can it be said, in relation to the period of disqualification imposed by the Court, that such a prisoner has been "released"?  If not, the prisoner would of course be able to drive during these periods of conditional liberty which would not be desirable or appropriate.  In our judgment considerable and undesirable uncertainty would flow if it were open to the Court to order that a disqualification took effect from the date of a prisoner's release when that date is open to a number of different interpretations.

12.      Thirdly, it seems to us that as a matter of general principle a punishment imposed by the Court takes effect when sentence is pronounced.  It is true that the Court may impose a period of imprisonment to run consecutively to another.  To that extent the operative effect of the sentence is deferred.  But the power to imprison is a common law power and courts have from time immemorial imposed consecutive sentences of imprisonment.  We do not think, however, that a Court could lawfully impose a sentence of imprisonment to take effect in (say) twelve months' time other than as a consecutive sentence.  The power to disqualify a person for holding a driving licence is a statutory power.  Nothing in the Road Traffic (Jersey) Law 1956, or the Driving Disqualification (Non-Motoring Offences) (Jersey) Law 1979 provides a power for the Court to impose a disqualification to take effect at some future date.

13.      The Inferior Number was not addressed as to whether it had the jurisdiction to impose a disqualification to take effect on a future date.  We have had the benefit of hearing such argument and we have concluded that the Court below was in error in assuming that it had such a jurisdiction.  In our judgment a disqualification for holding or obtaining a driving licence must take effect on the date upon which it is imposed.

14.      We therefore extend the time with which a notice of appeal may be filed, grant leave to appeal, and allow the appeal to the extent that the period of disqualification will take effect from 2 May 2002.

Authorities.

A.G. -v- Gallery, Mahé and Passman (2^nd May, 2002) Jersey Unreported; [2002/92]

A.G. -v- Mahé et al (27^th July, 2000) Jersey Unreported; [2000/152]

A.G. -v- Fossey (1982) JJ 223

R -v- Sibthorpe (1973) 57 Cr. App. R 447

R -v- Meese (1973) 57 Cr. App. R 568

R -v- Graham (1955) Crim. L.R. 319

Taylor -v- Kenyon (1952) 2 ALL ER 726

Qatar -v- Al Thani (1999) JLR 118