Keith Harper v R
| Jurisdiction | Jamaica |
| Judge | Lawrence-Beswick JA (Ag) |
| Judgment Date | 11 July 2014 |
| Neutral Citation | JM 2014 CA 70,[2014] JMCA Crim 32 |
| Docket Number | CRIMINAL APPEAL NO 12/2013 |
| Court | Court of Appeal (Jamaica) |
| Date | 11 July 2014 |
[2014] JMCA Crim 32
JAMAICA
IN THE COURT OF APPEAL RESIDENT MAGISTRATES'
The Hon Miss Justice Phillips JA
The Hon Mrs Justice McIntosh JA
The Hon Ms Justice Lawrence-Beswick JA (Ag)
CRIMINAL APPEAL NO 12/2013
Ms Catherine Minto instructed by Nunes Scholefield, DeLeon & Co for the appellant
Leighton Morris for the Crown
CRIMINAL LAW - Motor cycle - Using without insurance - Whether sentence was unlawful - Whether a policy of insurance is in effect for motor cycle users - Motor Vehicle (Third Party Risks) Act, s. 4 - Miscarriage of justice
On 2 July 2014, we allowed this appeal and set aside the sentence of imprisonment. This is the fulfillment of our promise to provide the reasons for that decision.
On 28 July 2008, in the St Catherine Resident Magistrate's Court, the learned Resident Magistrate, Her Honour Mrs Dunbar-Green, imposed on the appellant, Mr Keith Harper, a sentence of $ 2000.00 or 30 days imprisonment and also an additional 30 days imprisonment, for using a motor cycle without insurance. This is an appeal by Mr Harper against the additional sentence of imprisonment of 30 days.
The record of the proceedings does not disclose any statement by the prosecutor or the appellant concerning the circumstances of the offence. There is no indication of a plea having been made in mitigation, nor indeed of an opportunity being given to the appellant to make such a plea. The record however discloses that five unnumbered informations were before the court charging careless driving, no motor vehicle insurance, unlicensed motor vehicle, unregistered motor vehicle and no certificate of fitness and that the appellant pleaded guilty to all the charges. The learned Resident Magistrate noted that Mr Harper was represented by counsel Ms Catherine Minto who stated that the accused was in breach of the law and asked for the court's understanding. However, in Ms Minto's written submissions in this court, counsel denied that she represented Mr Harper on that day.
The record indicates that “[d]ocuments tendered on Accused's [sic] man [sic] behalf suggest that he has certificate of fitness and registration certificate”. However, based on a statement by the police officer, the magistrate was awaiting verification of the documents by the relevant authorities, and she entered pleas of not guilty on the informations concerning those documents.
The guilty pleas were accepted on the informations charging the appellant with using a motor vehicle without motor vehicle insurance and with careless driving. Respectively they state that Keith Harper:
“did unlawfully use a motor vehicle to wit a motorcycle Registered 3432F along Port Henderson Main Road in the parish of St Catherine without there being in force in Relation to such user a Policy of Insurance a [sic] such security in respect of third party risk as complies with requirements of the motor vehicle (third Party Risk) [sic] Law, in contravention of section 4 (1) of the said Act contrary to Section 4 (2) of the motor vehicle insurance third party Risk [sic] Act.”,
and that he
“did drive a motor vehicle to wit motor cycle Registered 3432 F on a public road to wit Port Henderson main road contrary to section 32 (1) of the Road Traffic Act.”
The learned Resident Magistrate then proceeded to impose sentences for those two offences.
The grounds of appeal are:
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“1. The Learned Resident Magistrate erred, when she exercised her discretion to impose a sentence of thirty (30) days imprisonment on the count contained in the Information charging the Appellant for unlawfully using a motor cycle registered 3432F without there being in force in relation to such a user a policy of insurance in respect of third party risks and in contravention of sections 4(1) and 4(2) of the MOTOR VEHICLE [sic] (THIRD PARTY RISKS) ACT, in the circumstances of this case .
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2. The proceedings against the Appellant contain material irregularities and amount to a substantial miscarriage of justice.” (emphasis in original)
The learned Resident Magistrate recorded four reasons for imposing the sentences:
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“1. The Court considers that the offence is not an isolated one. It is committed along with four (4) others to which the Accused man pleaded guilty in the presence of an Attorney-at-Law (note the plea of ‘not guilty’ was entered by [sic] Resident Magistrate in respect of three of those for verification of documents). Other charges [sic] likely, coming out of same set of circumstances.
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2. The fine of $2000 is considered inadequate to punish the offence related to Insurance given the importance of insurance in the event of injury or loss caused by motor vehicle accidents.
(The Sentence is permitted by section four [sic] S4 (2) of the Motor Vehicle Insurance Third Party Risk [sic] Act. S27 of the Road Traffic Act classifies a motor cycle as a ‘motor vehicle’).
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3. The Accused man drove carelessly as well. This indicates that he put other road users at risk of harm or loss.
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4. There are other informations pending in relation to offences arising out of the same set of facts.”
In a separate document entitled “Reasons for Sentence” the learned magistrate stated that she had imposed the sentences based on five considerations. Those were the four as stated above with the additional consideration being that:
“The Accused produced no documents suggesting that the motor vehicle had ever been insured. He was, therefore found to have been willfully without insurance coverage. The Court made a distinction between an Accused who produced a recently expired document along with a reasonable explanation, and one who never had any insurance from the outset. The Accused man fell within the latter category.”
Counsel for the appellant, in her written submissions, stated that the Resident Magistrate had failed to strike a balance between features which would tend to aggravate the offence and those which operated as mitigating features.
Further, according to counsel, “no evidence was taken in relation to the actual or factual [sic] circumstances leading to the charges”. Counsel indicated that she would be seeking the leave of this court to supplement the record by admitting into evidence the appellant's affidavit which had been used in support of his application for bail pending appeal. However, this course was not pursued because at the start of the hearing of this appeal, Mr Morris for the Crown indicated that he would not “strenuously” oppose the appeal. In those circumstances Ms Minto made no oral submissions on behalf of the appellant, seemingly finding it unnecessary to do so.
Mr Morris agreed with Mr Minto's written submissions that although the learned Resident Magistrate had the power to impose the sentences which she had imposed, she ought to have demonstrated a regard for “other factors” where she considered imprisonment as being necessary. Counsel submitted that regard should be had as to whether or not the appellant had pleaded guilty, had made restitution or had any previous convictions. However, the Resident Magistrate only contemplated aggravating factors, and there was no indication whether the appellant had benefitted from a discounted sentence for having pleaded guilty at the first opportunity.
On behalf of the appellant, Ms Minto's further written submission was that a person convicted under section 4(2) of the Motor Vehicles Insurance (Third Party Risks) Act “shall (unless the court for special reasons thinks fit to order otherwise …) be disqualified for holding or obtaining a licence …”. She argued therefore that there must have been special reasons to account for the fact that the Resident Magistrate did not impose that sentence. Her conclusion was that those reasons ought to have been considered in the appellant's favour in the determination as to whether a custodial sentence was to be imposed.
Mr Morris submitted that whilst it was not ideal that the appellant had been sentenced on the same day that he was accused of having committed the offences, it was not a fatal irregularity. He asserted that the test was whether or not the appellant was deprived of fairness in the circumstances. However, counsel for the Crown stated that...
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