Legal Scoop | Does the Road Traffic Act empower judges to tackle repeat offenders?

THE CASE OF MERVIN HENRY v R

An interesting case coming out of the Court of Appeal recently is the case of Mervin Henry v R. In this case, heard before the Hon Mr Justice Morrison (president), the Hon Mr Justice F. Williams (Ja) and the Hon Mr Justice Fraser (Ja) (ag), Mr Henry, having been charged with obstruction of traffic by the police and failing to pay the necessary fine, had appeared in the Traffic Court to have the ticket in question relisted.

During the proceedings, Mr. Henry pleaded guilty to the charge that on July 16, 2018, while operating a public passenger vehicle, he had obstructed the flow of traffic at the intersection of Trafalgar Road and Holborn Road in the parish of Saint Andrew. In summary, he admitted that he had stopped in a middle lane to let off a passenger and, therefore, obstructed the vehicles on the green light.

It was subsequently brought to the attention of the court that Mr Henry had previously come before the Traffic Court in other names.

When the court enquired of him whether this was so, he did not deny it, but according to the judgment, behaved boisterously and said, among other things, “mi waan know weh yuh a ask mi dem bag a question yah fah? Weh dat afi duh wid now? Mi always pay fi mi ticket dem an mi jus come fi pay mi [$5,000.00] and guh bout mi business”.

Mr Henry’s antecedents were, therefore, checked, which revealed that he had received a number of tickets in the alternate names of Marvin Henry and Carlington Henry, in addition to the name Mervin Henry.

Furthermore, the search of the records had also revealed that he had received 414 tickets, 17 of which, issued between January 2018 and June 26, 2018, were for obstructing traffic. The learned judge thereupon proceeded to sentence Mr. Henry to an immediate term of imprisonment of three months at hard labour.

MR HENRY’S APPEAL

Mr Henry subsequently appealed the judge’s ruling through his attorney-at-law, Dr Garth Lyttle, of Traffic Court fame. As his grounds of appeal were not crucial to the eventual ruling of the Court of Appeal, and in the interests of brevity, same will not be summarised here.

THE JUDGE’S REASONS FOR RULING

On the other hand, the learned judge of the Traffic Court, in her reasons for conviction, had noted that Mr Henry, having failed to pay the fine of $800.00 at the revenue department, within the 21-day period stipulated on the ticket, had then become subject to the jurisdiction of the Traffic Court where the $800.00 fine was no longer applicable. She stated that the court fine was $5,000.00.

In explaining her sentence, the learned judge of the Traffic Court also adverted to:

a). the fact that Mr Henry had 18 convictions under the Road Traffic Act for ‘Obstructing’ or ‘parking in a manner likely to obstruct’; and

b). Mr Henry, being part of a culture of ‘pay and reoffend’, which was confirmed by his boisterous behaviour in court.

[13] Accordingly, on the above bases, the learned judge formed the view that no special penalty was provided for the offence to which Mr Henry pleaded guilty, and as such, she relied on section 108 of the RTA, as providing authority for her to impose the immediate custodial sentence of three months of imprisonment.

THE COURT OF APPEAL’S RULING

In summary, the Court of Appeal poured cold water on what they described as the ‘lynchpin’ of the judge’s ruling in imposing an immediate custodial sentence on Mr Henry. According to the Court of Appeal, “the lynchpin of the reasons provided by the learned judge of the Traffic Court for the sentence she imposed was that section 108 was applicable”. However, it was “not immediately clear” to the Court of Appeal how the learned judge had “arrived at that position”.

In the view of the Court of Appeal, Mr Henry, having been brought under the jurisdiction of the Traffic Court by his failure to pay the ticket within the specified time, section 53(1)(b) of the act, which creates the offence of obstructing traffic by a vehicle that is not in motion, would apply, and not section 108.

Dr Lyttle, who had not argued this point in his grounds of appeal, not surprisingly, “gratefully” (according to the judgment) conceded to this submission of crown counsel in the Court of Appeal.

For such cases of obstruction, the Court of Appeal judgment continued, “ section 53(4)(b) specifies that a maximum penalty of $5,000.00 may be imposed upon conviction of such an offence.”

The Traffic Court judge, then, had erred in imposing a custodial sentence of three months; the maximum penalty she could have imposed was a fine of $5,000.00.

WHAT OF MR HENRY’S 414 TICKETS?

This was an interesting point in the judgment. In the Court of Appeal, Dr Lyttle had argued that after conviction of a summary offence which falls under section 116(1), such as obstructing traffic, no reference should be made in the proceedings of any payment or non-payment of a fixed penalty for a previous offence falling under that subsection, unless the defendant raises the issue. The submission was accepted by the Court of Appeal, albeit a bit reluctantly, in the view of this column:

“ It therefore appears that, in any event, the fact of the previous convictions, which undoubtedly influenced the learned judge of the Traffic Court, was an irrelevant consideration under the scheme of the RTA. ”

CONCLUSION

The Court of Appeal, having concluded that the learned judge of the Traffic Court had erred in her sentencing of Mr Henry, went on to set aside her ruling and to impose instead the statutory fine of $5,000, or seven days imprisonment in default of payment.

However, given the egregious flouting of the laws of the land revealed by the case, the judges of the Court of Appeal had a parting shot which this column needs find space for.

In the very words of their Lordships:

“Before parting with this appeal, we are constrained to make the following comment.

A ticketing system in which:

1). a defendant can blithely rack up 414 tickets;

2). no previous payment by the defendant of a ticket can properly be considered at his sentencing, even where it is for a previous similar offence, unless section 108 applies; and

3). that defendant, in the words of the learned judge of the Traffic Court, can simply “ pay and reoffend”, strains the credibility of traffic enforcement efforts, the concept of law and order, and respect for the courts.”

[Emphasis added by writer]

Their Lordships went on to note that under the new Road Traffic Act, which is yet to be brought into force, the maximum penalty for obstruction of traffic is $20,000.00, with a maximum of seven days imprisonment in default of payment. However, their Lordships expressed pessimism whether the increase in fine would work as an effective deterrent:

“ Time will tell if the increased penalties will address the troubling culture in the Traffic Court adverted to by the learned judge of the Traffic Court, though we must confess of that likelihood we are not entirely sanguine. ”

In the view of the Court of Appeal judges, a more compelling deterrent than an increased fine may be in order in such egregious cases:

“Perhaps in appropriate circumstances, there may be need for a ‘sting in the tail’, reflected by the possibility of an immediate custodial sentence, or other measures such as disqualification from driving for a period, that would be determined by the legislature.

He who hath ears to hear, let him hear what the Court of Appeal has to say on this matter.

- Shena Stubbs-Gibson is an attorney-at-law and legal commentator. Email feedback to: editorial@gleanerjm.com and shena.stubbs@gleanerjm.com. Twitter:@shenastubbs