R v Thomas (Kevin)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 14 October 1983 |
| Neutral Citation | [1983] EWCA Crim J1014-2 |
| Judgment citation (vLex) | [1983] EWCA Crim J1014-1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 14 October 1983 |
| Docket Number | No. 3322/B/83 |
[1983] EWCA Crim J1014-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Michael Davies
and
Mr. Justice French
No. 3322/B/83
MR. T.J. SPENCER appeared on behalf of the Appellant.
On 26th April 1983 at Grimsby Crown Court this appellant pleaded guilty to two offences of driving whilst disqualified. He was sentenced by Judge Geoffrey Jones to three months' imprisonment in respect of each offence to be served consecutively, a total of six months' imprisonment. In addition he was ordered to be disqualified from driving for a period of two years.
He appeals against sentence by leave of the single Judge. He makes no complaint about his sentences of imprisonment, which he has now served. It is expressly accepted on his behalf that in the circumstances of the case he could have no cause for complaint. He appeals solely in respect of the order for disqualification.
The appellant is now 25 years of age. His driving record is appalling. He has been convicted on many occasions. On at least four previous occasions he has been before the Court for offences of driving whilst disqualified. In 1981 and again in 1982 he was sentenced to imprisonment for this offence.
On 10th September 1982, which must have been not long after he was released from prison, the appellant was seen by the police riding a motor scooter. He was released on bail but on the 5th October he was seen riding another motor scooter. At the time of these offences he was disqualified until 21st February 1983. He has only ever held a provisional licence.
This recital amply justifies the expressed view of the trial Judge that this appellant was quite arrogant in relation to the law. For his deliberate and repeated offences he had to be punished. Nevertheless, it is perfectly plain from the transcript of the proceedings that Judge Jones, who dealt with this case with the utmost care and patience, would have liked to impose a lesser period of disqualification than two years. He was influenced in this regard by what in recent years has become accepted sentencing policy in this type of case, that is that with persons like the present appellant, who seem to be incapable of leaving motor vehicles alone, to impose a period of disqualification which will extend for a substantial period after their release from prison may well, and in many cases certainly will, invite the offender to commit further offences in relation to motor vehicles. In other words a long period of disqualification may well be counterproductive and so contrary to the public interest. So well established has this sentencing policy become in recent years that it is not necessary to refer to a line of cases. A good recent example is R. v. Fames reported in The Times newspaper on October 12th, 1982.
As has been said, Judge Jones thought that this was such a case and we agree with him. However he came to the conclusion, after hearing argument, that he was precluded by the provisions of the Transport Act 1981 (the relevant part of which came into operation on 1st November 1982) from imposing a period of disqualification of less than two years.
There was no doubt that before 1st November 1982 the Courts had power to do that which, as has already been said in this judgment, they often did. However section 19 of the 1981 Act introduced tighter restrictions on the power of a Court to reduce what would otherwise be a mandatory period of disqualification.
The relevant part of section 19 of the Transport Act 1981 are as follows:
"(2) Where a person is convicted of an offence involving obligatory or discretionary disqualification and the penalty points to be taken into account under subsection (3) number twelve or more, the court shall order him to be disqualified for not less than the minimum period defined in subsection (4) unless the court is satisfied, having regard to all the circumstances not excluded by subsection (6), that there are grounds for mitigating the normal consequences of the conviction and thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified."
"(4) The minimum period referred to in subsection (2) is –(a) six months if no previous disqualification imposed on the offender is to be taken into account; and (b) one year if one, and two years if more than one, such disqualification is to be taken into account; and a previous disqualification imposed on an offender is to be taken into account if it was imposed within the three years immediately preceding the commission of the latest offence in respect of which penalty points are taken into account under subsection (3)."
"(6) No account is to be taken under subsection (2) of – (a) any circumstances that are alleged to make the offence or any of the offences not a serious one; (b) hardship, other than exceptional hardship; or (c) any circumstances which, within the three years immediately preceding the conviction, have been taken into account under that subsection in ordering the offender to be disqualified for a shorter period or not ordering him to be disqualified."
It was conceded at the trial and before us that the appellant was caught by the provisions in that (i) his penalty points to be taken into account totalled twelve or more and (ii) more than one previous disqualification had to be taken into account.
Accordingly the Court was obliged to disqualify the appellant for not less than two years, unless – and we repeat the relevant words in section 19(2) – "the court is satisfied, having regard to all the circumstances not excluded by subsection (6), that there are grounds for mitigating the normal consequences of the conviction and thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified".
Subsection (6) has already been read. Counsel for the appellant submits that none of the three exceptions which the Court is required not to take account of apply to the present case. Quite clearly (a) and (c) do not – it has not, and could not be contended that these were not serious offences and there were no circumstances which had been taken into account on a earlier occasion for the purposes set out in subsection (6)(c).
This leaves subsection (6)(b), "hardship, other than exceptional hardship". It could not be said that this disqualification constituted "exceptional hardship"; if it did, of course the task of the trial Judge and of this Court would have been easy. We then have to ask ourselves whether to have regard to the principle of sentencing policy with which we have dealt is taking account of "hardship". If so, it would have to be excluded from consideration. In our judgment a proper construction of the statute does not lead to that result. We do not think that to have regard to the well settled policy, in other words to the public interest, is taking account of "hardship" any more than of "exceptional hardship".
Accordingly, returning to subsection (2), are there circumstances not excluded by subsection (6) – and as we have said the principle of sentencing policy in question is in our view not so excluded – in which the Court can say that it is satisfied that there are "grounds for mitigating the normal consequences of the conviction"?
Our conclusion is that the principle of sentencing policy does constitute such grounds. The Judge would have been entitled in law to do that which he wished to do. However, a culpable offender like this appellant cannot expect that his period...
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