Jersey Unreported Judgments

[2011]JRC036

ROYAL COURT

(Samedi Division)

11^th February 2011

Before     :

M. C. St. J. Birt, Esq., Bailiff, and Jurats de Veulle and Fisher.

The Attorney General

-v-

Holiday Tours Limited

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

1 count of:	Using a motor vehicle on a road with defective tyres, contrary to Article 27(1) of the Motor Vehicles (Construction and Use)(Jersey) Order 1998 (Count 1).
3 counts of:	Using a motor vehicle on a road when the steering gear is not maintained in a good and efficient working order and properly adjusted, contrary to Article 29 of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 (Counts 2, 7 and 10).
2 counts of:	Using a motor vehicle on a road when a speedometer is not maintained in good working order, contrary to Article 36(1) of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 (Counts 3 and 11).
1 count of:	Using a motor vehicle on a road when the windscreen was in such a condition that it obscured the vision of the driver whilst the vehicle was being driven, contrary to Article 30(3) of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 (Count 4).
1 count of:	Using a motor vehicle on a road without the load being carried by that vehicle being so secured that danger was likely to be caused to any person or property by reasons of the load or any part thereof falling or being blown from the vehicle or by reason of any other movement of the load or any part thereof, contrary to Article 106(2) of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 (Count 5).
2 counts of:	Using a motor vehicle on a road when the braking system is not maintained in a good and efficient working order and properly adjusted, contrary to Article 18(1) of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 (Counts 6 and 9).
1 count of:	Using a motor vehicle on a road when the condition of the Lift (2nd) axle being such that danger was caused or likely to be caused to any person in or on that vehicle or on a road, contrary to Article 106(1) of the Motor Vehicle (Construction and Use)(Jersey) Order 1998 (Count 8).

Plea: Guilty.

Details of Offence:

In April 2010 a lorry belonging to the defendant was stopped by police officers as it was carrying a high load of wooden planks and one plank had fallen from the rear and was caught on the securing straps on the nearside of the lorry and was being dragged along the road.  Upon examination a number of obvious defects were noted and a more detailed examination was undertaken by the DVS.  Counts 1-4 inclusive were noted as were TIC's 1-3 inclusive.  Six days later a second lorry belonging to the company was stopped in a multi-agency road check and a number of defects were noted.  A detailed examination was undertaken and defects giving rise to Count 6-8 inclusive and TIC's 4 and 6 were found. 

In October 2010 a multi-agency pre planned road check was undertaken and another lorry belonging to the defendant was stopped and examined.  Defects were noted and a workshop examination was undertaken which noted the defects giving rise to Counts 9-11 inclusive and TIC's 7-9 inclusive. 

The opinion of the qualified vehicle examiner in relation to all three vehicles is that they should not have been parked or circulated on the public highway given their defects. 

The drivers of the three vehicles were all dealt with at Parish Hall level by way of financial penalties for defects on their respective vehicles. 

Details of Mitigation:

The Crown

The Crown viewed as most serious the issue of the proper maintenance and safety of vehicles on the road.  The defendant company came before the Royal Court in December 2007 for a total of 27 counts (see judgment AG-v-Holiday Tours Ltd [2007] JRC 244).  It also appeared before the Magistrate's Court in 2009 for a further 11 offences.  The Crown's conclusion was that this defendant company had seemed to have learnt nothing from the previous court appearances.  Current offences aggravated by the fact that two vehicles stopped in April and a further vehicle stopped in October.  The Crown raised a question mark over the company's reporting and maintenance procedures.  Ultimate responsibility rested with it.  The Crown noted the guilty plea and the other offences to be taken into consideration. 

The Defence

The Company had been operating for some 50 years.  Employed 50 staff.  Current owner took over from his father.  Took a step back from the business in 2004 and employed a manager who let standards slip resulting in offences 2007.  Significant set back for the running of the business occurred when a serious fire destroyed its onsite facilities in 2008.  Twenty vehicles destroyed.  There had been a delay in re-building administration and maintenance facilities due to complex planning application.  Offences committed in 2009 were shortly after fire and the vehicle was one of the older fleet and it was accepted that it had not been properly maintained at that time.  The company had taken steps to enforce the policy and procedures that it already had that required drivers to report and note faults etc.  Some delay in court process but defendant had been co-operative.  Had obtained his own independent expert report on the vehicles and to some extent some of the defects noted were a matter of opinion.  Emphasised that more robust procedures etc were now in place.  Detailed letter from owner of the company put before the Court as were details of the company's financial situation. 

Previous Convictions:

27 counts of a similar nature in 2007 and 11 similar offences in February 2009.  One off similar offences in 1997 and 2001 relating to unsecured load and weighting of vehicles. 

Conclusions:

Count 1:	£1,000 fine.
Count 2:	£1,000 fine, consecutive.
Count 3:	£1,250 fine, consecutive.
Count 4:	£625 fine, consecutive.
Count 5:	£1,250 fine, consecutive.
Count 6:	£1,000 fine, consecutive.
Count 7:	£1,000 fine, consecutive.
Count 8:	£1,000 fine, consecutive.
Count 9:	£750 fine, consecutive.
Count 10:	£1,075 fine, consecutive.
Count 11:	£1,500 fine, consecutive.

Total: £11,450 fine.

Sentence and Observations of Court:

On 18^th December, 2007, the defendant was sentenced for 27 counts in relation to eight of its then faulty vehicles.  The Crown had moved for fines of £19,250 but the Court on that occasion said but for exceptional circumstances would have granted those fines.  Conclusions reduced to £7,500.  One might have thought that this sentence would have sent a clear message to the company that it must maintain its vehicles properly but the defendant appeared in the Magistrate's Court in 2009 for 11 offences.  It was now before the Court again for 11 offences involving three vehicles and having asked for 9 TIC's to be taken into account.  The Court said in 2007 that it was in the interest of drivers and the public demanded that the vehicles were properly maintained and this was particularly important in relation to large commercial vehicles due to the amount of damage they could cause if they were involved in an accident.  The company had much mitigation, in business for 50 years and first prosecution in 2007 arose because the manager had let things slip.  The principal of the company had resumed responsibility thereafter.  Offences before the Magistrate's Court occurred one month after the fire at Broadlands where the company had its depot where everything was destroyed.  This had put a strain on the maintenance routine and staff and the company had carried on the best it could in difficult circumstances.  The Court had read the letter provided by the principal of the company.  The company's maintenance regime was to undertake quarterly servicing.  The company did rely upon its drivers to tell the maintenance staff of any defects.  Clearly this had not been happening.  The service regime was in any event an issue given that some of the defects had not been picked up by the quarterly services such as the defective speedometers.  The Court noted the steps taken by the company to improve its procedures.  The drivers now had to check the vehicles and hand in the vehicle forms before leaving the depot. 

When the Court first read the papers they were readily minded to impose the fines sought.  Having heard the mitigation and read the letter, the Court felt able to make a reduction to reflect the financial difficulties the company had suffered. 

Count 1:	£900 fine.
Count 2:	£900 fine, consecutive.
Count 3:	£1,000 fine, consecutive.
Count 4:	£600 fine, consecutive.
Count 5:	£1,000 fine, consecutive.
Count 6:	£900 fine, consecutive.
Count 7:	£900 fine, consecutive.
Count 8:	£900 fine, consecutive.
Count 9:	£700 fine, consecutive.
Count 10:	£900 fine, consecutive.
Count 11:	£1,300 fine, consecutive.

Total: £10,000 fine and 3 months in which to pay. 

J. C. Gollop, Esq., Crown Advocate.

Advocate E. J. Le Guillou for the Defendant.

JUDGMENT

THE BAILIFF:

1.        On 18^th December, 2007 (AG-v-Holiday Tours Ltd [2007] JRC 244) this company was sentenced on 27 counts relating to the condition of eight of the forty vehicles which they had at the time.  The Crown then moved for total fines of £19,250 and the Court said it would have granted those fines save for the exceptional circumstances mentioned by the Court in its judgment relating to the way in which the prosecution had conducted the case.  Because of the resulting unfairness, the Court reduced the fines to a total of £7,500.  One might have thought that that would have sent a clear message to the company that it must maintain its vehicles properly, but in February 2009 the company appeared before the Magistrate's Court for eleven similar offences and was fined a total of £2,700.  Now it is before the Court again for eleven further offences involving three of its vehicles, and also nine offences taken into consideration relating to the same three vehicles. 

2.        As the Court said in 2007 the interests of drivers and the public demand that vehicles on the road are properly maintained and safe to be used and this could be said to be particularly important in the case of large commercial vehicles, which can do so much damage if they are involved in accidents. 

3.        Nevertheless, behind this cold recitation of the facts, there is much mitigation put forward by Advocate Le Guillou.  She points out first of all that the company has been in business for fifty years and that when the prosecution took place in 2007, the principal Mr Le Marquand had not long before handed over responsibility to a manager who had let things slip.  Following the prosecution the general manager departed and Mr Le Marquand resumed responsibility for managing the company, including ensuring proper maintenance. 

4.        Secondly, she points out that the offences before the Magistrate's Court in 2009 took place only one month after the terrible fire at Broadlands in St Peter's.  The company had its depot there and all its maintenance and administration was carried out at Broadlands but was completely destroyed by that fire.  This has really placed considerable strain on the maintenance and general administration of the company.  As we have seen, the building has not yet been rebuilt because of difficult and complex planning issues, and so the company has had to carry out maintenance as best it can in the outside very often, or in other unsatisfactory conditions; certainly there is no modern maintenance station there.  We have read Mr Le Marquand's letter explaining the consequences of the fire to the company and we are sure that these consequences have been serious. 

5.        Thirdly, we were told of the quarterly servicing which has been carried out although, as was pointed out, the company does rely in between time and even occasionally in relation to the servicing, on what they are told by the drivers; the drivers are meant to report any defects on a daily basis but it is clear from the papers that that has not always happened.  However, it is also clear from the papers that some of the defects simply were not picked up in the quarterly servicing - the defective speedometers are an obvious example of that. 

6.        Fourthly, we were told by Advocate Le Guillou of the steps the company has now taken to improve the position.  The drivers have to inspect the vehicle and hand in the relevant form before they leave in the morning; this is intended, together with other measures, to bring home to them the importance of reporting any defects so that they can be dealt with. 

7.        When we originally read the papers filed by the Crown, all the members of the Court were of the opinion that the fines should be at the level moved for by the Crown.  But having heard the mitigation and having read Mr Le Marquand's letter, the Court thinks that there can be a reduction in order to reflect the difficulties that the company has faced since the fire.  So, in all the circumstances, we are going to reduce the fines slightly so that they will in aggregate amount to £10,000, rather than the £11,450 which the Crown has moved for. 

8.        Breaking them down, the fines are as follows: Count 1; £900, Count 2; £900, Count 3; £1,000, Count 4; £600, Count 5; £1,000, Count 6; £900, Count 7; £900, Count 8; £900, Count 9; £700, Count 10; £900, Count 11; £1,300; and according to our calculations that makes a total of £10,000 and we allow 3 months in which to pay. 

Authorities

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

Road Traffic (Jersey) Law 1956.

Criminal procedure (Taking Offences into Consideration)(Jersey) Rules 2000.

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