Helder Manuel De Sousa Loureiro v The Attorney General

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: J. A. Clyde-Smith,Jurats Kerley,Olsen
• Judgment Date: 09 July 2015
• Neutral Citation: [2015] JRC 154
• Date: 09 July 2015

[2015] JRC 154

ROYAL COURT

(Samedi)

Before:

J. A. Clyde-Smith, Esq., Commissioner and Jurats Kerley and Olsen

Helder Manuel De Sousa Loureiro

and

The Attorney General

Advocate R. S. Tremiceiro for the Appellant.

P. F. Byrne, Esq., Crown Advocate.

Authorities

Kinsella v AG [2014] JRC 199.

R v Paul Hardy [2006] 2 Cr.App.R.(S.) 4.

Magistrate's Court Appeal — appeal against sentence imposed on Charges 3 and 4 by the Magistrate.

THE COMMISSIONER:

1 On 10 ^th April, 2015, the Court allowed the appeal of Helder Manuel de Sousa Loureiro (“the appellant”) and varied the sentenced imposed upon him by the Relief Magistrate (Advocate D E Le Cornu).

2 The appellant had pleaded guilty to four motoring offences for which he was sentenced as follows:–

He was thus sentenced to a total of 12 months' imprisonment and disqualified from driving for a total of 36 months. The appeal related to the custodial sentence imposed on Charge 3, which the appellant submitted was manifestly excessive, and to the consecutive sentence imposed on Charge 4, which he submitted offended the totality principle.

• (i) Charge 1 — Driving whilst disqualified — 3 months' imprisonment, and 12 months' disqualification.

• (ii) Charge 2 — Failing to stop and report following an accident — 3 months' imprisonment, concurrent, and 12 months' disqualification, concurrent.

• (iii) Charge 3 — Driving whilst uninsured — 9 months' imprisonment, concurrent, and 36 months' disqualification, concurrent.

• (iv) Charge 4 — Failing to provide a breath specimen — 3 months' imprisonment, consecutive, and 36 months' disqualification, concurrent.

3 The facts are that the defendant, who is 28, drove a vehicle on 31 ^st December, 2014, at approximately 10pm under the influence of alcohol, uninsured and whilst disqualified. He crashed the vehicle into a wall and then ran away. He was found shortly thereafter hiding nearby. He was arrested and failed the roadside breath test. At the Police Station, he was given eight chances to provide a sample of breath but failed either by not blowing hard enough or blowing a small amount and then stopping. He admitted he had drunk four bottles of Portuguese beer at approximately 8:30pm and was unfit to drive.

4 He had a record of previous, mainly motoring, convictions. This was his first offence of driving whilst disqualified but his fourth offence for driving whilst uninsured. For his first offence of driving whilst uninsured in June 2009, he was fined £300; for his second offence in December 2010 he was fined £1,000 and for his third offence in July 2014, he was given 90 hours' community service (the equivalent of 3 months' imprisonment). He had never before served a sentence of imprisonment.

5 When sentencing the appellant, the Relief Magistrate said this:–

“Mr Loureiro first of all I wish to say that I've looked at the references which you have given, passed up to the Court which are excellent. I note that you have the possibility of a job to go to. I've read very carefully everything in the Social Enquiry Report and I have taken consideration of everything that Mr Tremoceiro has told the Court.

, these are very serious offences. You have deliberately driven whilst disqualified and without insurance, and this is your fourth conviction for driving without insurance in just over five years.

In relation to the offence of driving whilst disqualified you will be sentenced to three months in prison.

In relation to the offence of failing to stop you will be sentenced to three months in prison, and as this is your fourth offence for driving without insurance you will be sentenced to nine months in prison concurrent to the other two sentences.

And in relation to the offence of failing to provide you will be sentenced to three months consecutive. Now I have to explain to you why I am making one of those sentences consecutive, it's because it amounts to a completely different offence, an offence committed at Police Headquarters, and I have taken great care in considering the guidelines imposed by the Royal Court in this matter, so you will serve a total of twelve months' imprisonment.

In relation to the disqualification period, in relation to charges 1 and 2 you will be disqualified for twelve months.

In relation to charges 3 and 4 you will be disqualified for thirty-six months concurrent in each case; so a total of thirty-six months disqualification.”

6 Clarification was subsequently sought from the Magistrate's Court as to the guidelines to which the Relief Magistrate had referred. In its response the Court said that the Relief Magistrate had reviewed the transcripts and:–

“The guidelines to which he was referring are those contained in the Kinsella appeal where the Court stated that a Magistrate imposing a consecutive sentence should explain to the defendant why he is so doing.”

7 In Kinsella v AG [2014] JRC 199, the Relief Magistrate had imposed four...