Henderson J
ORIGINAL
IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN IN GEORGE TOWN, GRAND CAYMAN
18/8/05
SCA # 28/04
BETWEEN:
BROCK JAECK
- and -
REGINA
Appellant
Respondent
RULING
Delivered by The Honourable Mr. Justice Henderson,
on Friday, August 12, 2005, at George Town, Grand Cayman.
APPEARANCES:
For the CROWN:
MR. S. WILSON
For the DEFENDANT:
MR. A. AKIWUMI
REPORTED BY:
C. ROUSE
OFFICIAL COURT REPORTER
RULING
HENDERSON, J. (Orally):
Brock Jaeck appeals from a driving disqualification imposed upon him in the Summary Court following his conviction for driving while under the influence of alcohol. His blood-alcohol reading at the time of the offence was more than three times the legal limit. There was no accident or damage to persons or property.
Mr. Jaeck had been at a going-away party for himself provided as a surprise by his colleagues. He obviously consumed far more alcohol than he should have at that party given his intention to drive his vehicle afterwards.
He has no previous record.
Mr. Jaeck represented himself in the Summary Court, and therefore the matters I am about to address were not put to the learned Magistrate.
Mr. Akiwumi, for the appellant in this Court, requests that the driving suspension, which was an absolute suspension for two years,
be altered to one which is intermittent,
thereby permitting Mr. Jaeck to continue to work. Mr. Jaeck is a manager for Phoenix Construction and I accept the assertion that he requires a vehicle in the course of his employment. He is normally allotted a company vehicle for that purpose.
The threshold question is whether I have jurisdiction to impose an intermittent disqualification at all. I am advised by both counsel that there are no authorities in the Cayman Islands on this subject.
The Traffic Law, 1991, contained this provision in Section 71 (1):
"In any event any person convicted of an offence under this section shall be disqualified from holding or obtaining a drivers licence for a period of 12 months or such longer period as the Court in its discretion may order and the particulars of the offence shall be endorsed on his driver's record."
1 The offences referred to included the
2 offence of driving while under the influence of
3 alcohol.
4 In the 2003 Revision to the Traffic Law,
5 that was amended to read (in Section 71(2)):
6 "Whoever is guilty of an
7 offence, under subsection (1) is
8 liable on summary conviction ...
9 (c) in addition to the above, on
10 a first or any subsequent
11 offence, to disqualification
12 from driving for a period of
13 twelve months or such longer
14 period as the court may order."
15 The language in the 1991 version of the
16 law was mandatory. On any conviction for
17 driving while under the influence, the law
18 required the sentencing magistrate to impose a
19 driving disqualification for at least twelve
20 months. The magistrate was also given a
21 discretion to impose such a disqualification
22 for a longer period of time, but the
23 requirement for a 12-month disqualification was
24 absolute.
25 In the new legislation, the language has
1 changed. The language quoted from the 2003 Revision is that which is normally adopted by the draftsman of criminal statutes when specifying a penalty which may or may not be imposed. Typically, that language is used to specify a maximum penalty for a given offence, although, in the context I have quoted, there is no stated maximum at all.
The change in language adopted by the legislature must, on normal canons of interpretation, be taken to indicate a change in the law.
What was that change? It seems to me that the language of the 2003 Revision no longer makes it mandatory for the magistrate to impose a driving disqualification. While the language is anything but clear, I take it to be the intent of the legislature that the magistrate would have a discretion, in appropriate cases, to impose no disqualification at all. If a disqualification is imposed, it must be "for a period of twelve months or such longer period as the Court may order".
What can be gleaned from this on the subject of intermittent disqualification?
In my view, intermittent disqualifications may, in a variety of cases, and depending always on the circumstances, amount to an appropriate penalty. They carry a considerable potential to deter the offender and others.
They can serve to protect the public from the danger of a repeat offence by covering the hours during which a person is most likely to be consuming alcohol.
At the same time, they serve a public purpose. It is notorious that people who experience long driving disqualifications frequently lose their employment for that reason. I think there is a public interest to be served, in some cases at least, in preserving the offender's ability to work and support his family.
For these reasons, I would not read the new legislation as prohibiting the ability to impose an intermittent disqualification. If that was the intent of the Legislature, it would have said so clearly and expressly.
I would also note, in passing, that other jurisdictions, such as England and Canada, permit intermittent disqualifications. The
1 power, at least in Canada, has been available
2 for some considerable period of time and is
3 well known and widely used.
4 I conclude that the language of Section
5 71(2)(c) of the Traffic Law (2003 Revision)
6 does confer upon a sentencing judge or
7 magistrate jurisdiction to make a driving
8 disqualification intermittent; that is to say,
9 applicable during certain hours of the day or
10 certain days of the week only.
11 The question then becomes, "in what
12 circumstances should an intermittent
13 disqualification be available?"
14 Crown counsel points to the English
15 position. There is a statutory provision in
16 the UK requiring that an intermittent
17 disqualification be available only where the
18 defendant demonstrates that an absolute
19 disqualification would impose "exceptional
20 hardship". There is no analogous provision in
21 the Cayman Islands.
22 I am inclined to the view that the
23 discretion should be somewhat broader than is
24 implied by the phrase "exceptional hardship".
25 I think a sentencing judge or magistrate should
1 impose intermittent disqualifications with
2 restraint and only where some clear purpose in
3 so doing is made out. There will be cases
4 where it would be inappropriate, either because
5 of the facts of the case or the circumstances
6 of the offender, to impose an intermittent
7 disqualification. There will be others where
8 that sort of disqualification will be
9 appropriate. I see nothing to be gained,
10 however, in reading into the statute a
11 provision which is not there; that is to say,
12 that an intermittent disqualification may only
13 be imposed in cases where exceptional hardship
14 has been demonstrated.
15 In the instant case the disqualification
16 in absolute terms was for a period of two
17 years, a relatively lengthy period. The
18 request is that Mr. Jaeck be allowed to drive
19 during his normal working hours, which are 6:30
20 a.m. to 6:30 p.m, Monday to Saturday. The
21 proposal is that Mr. Jaeck will buy a bicycle
22 and ride to and from work each day on the
23 bicycle. He will ride that bicycle during his
24 personal time when he needs to transport
25 himself somewhere.
In the circumstances of this case, it is appropriate to permit Mr. Jaeck to drive during the course of his employment. I am persuaded that that is a discretion which can properly be exercised in his favour and, since the legislation allows for it, I am going to set aside the driving disqualification imposed in the court below and substitute for it a disqualification for a period of two years with the exception that he may drive between the hours of 6:30 a.m. and 6:30 p.m, Monday to Saturday.
The disqualification was imposed in August. I gather one month of it has already been served. The rest of it will commence from this day forward.
REPORTER'S CERTIFICATE
I, CAROL A. ROUSE, Official Court Reporter, hereby certify that the foregoing pages are, to the best of my skill and ability, a true and accurate transcript of the proceedings had in the said Court and reported in machine shorthand by me on the date and place aforementioned.
DATED THE 18th DAY OF AUGUST 2005