Richards J
Sentence Judgment: R v Kirlew (Michael Anthony) Ind. 64/20; Coram: Richards J. Q.C. Date: 1.03.2021
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IN THE GRAND COURT OF THE CAYMAN ISLANDS
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CRIMINAL SIDE
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INDICTMENT NO: 64 of 2020
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THE QUEEN
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v.
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MICHAEL ANTHONY KIRLEW
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Appearances:
Mr. Greg Walcolm for the Crown
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Mr. Crister Brady of Brady Attorneys at Law
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for the Defendant
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Before:
Justice Cheryll Richards Q.C.
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Submissions on Sentencing:
1st March 2021
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Sentence Judgment:
1st March 2021
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HEADNOTE
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Criminal Law – Careless Driving – Traffic Act - Principles on Sentencing –
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Aggravating and Mitigating Factors.
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SENTENCE JUDGMENT
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Sentence Judgment: R v Kirlew (Michael Anthony) Ind. 64/20; Coram: Richards J. Q.C. Date: 1.03.2021
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1.
The defendant, Michael Kirlew, is before the court for sentencing following his guilty
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plea on indictment 64 of 2020, to the lesser offence of Careless Driving. This plea,
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which was entered on the 19th of February 2021 is acceptable to the Prosecution. Both
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defence counsel and prosecuting counsel have advised that the plea is offered and
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entered on the full facts as set out by the prosecution.
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2.
The facts are as follows. On the 12th of August, 2019 at the Owen Roberts International
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Airport in George Town, Grand Cayman, at a time when the airport would have been in
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its normal and customary state of activity, the defendant was initially seen to park his
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company motor truck in an unauthorised parking area. This was shortly before 12 noon
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and thus, in the middle of the day. He was approached and told by a uniformed police
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officer that he was not to park in that area. Shortly thereafter, he was seen parking in an
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area reserved for taxi vehicles. He was again approached by a uniformed police officer
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and told that he did not have documentation which permitted him to park in that area and
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that he would be ticketed. When spoken to, the defendant attempted to move off. He
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did so by reversing the motor truck and then turning and driving in the wrong direction
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on the one-way main airport road. He drove all the way to Andy's Car Rental, in the
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wrong direction. The Prosecution asserts that in doing so, his driving fell far below the
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standard of care, to be exercised by a reasonable prudent driver and hence, the charge
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on the indictment was Dangerous Driving.
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Sentence Judgment: R v Kirlew (Michael Anthony) Ind. 64/20; Coram: Richards J. Q.C. Date: 1.03.2021
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3.
The Prosecution therefore submits that the plea to careless driving is thus one to Careless
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Driving at the highest level. It is submitted further that a community service order would
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be appropriate and the Court is asked to give due regard to the deterrent effect by
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imposing a period of disqualification.
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4.
By way of antecedent history, the defendant has no previous traffic convictions recorded
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against him.
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5.
Defence counsel on his behalf submitted in response that the full facts are accepted but
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that there are several mitigating factors which the Court should consider. Firstly, that
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the defendant has no history of poor driving. Secondly, that he does have a medical
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history of a stroke which has caused him some medical challenges. Counsel produced
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documentation which indicated inter alia, that on the 4th of February 2019, the defendant
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was diagnosed, by way of a brain scan, as having a left occipital stroke. He has made a
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full recovery and is on prescribed medication including blood thinners which are said to
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keep him stable.
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6.
Counsel's earnest plea on behalf of the defendant, is that his licence not be suspended
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for any period. Counsel submits that, should his licence be suspended, he will
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immediately lose his job, and his health insurance as well, which are much needed, given
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his health issues.
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Counsel also submitted that, as part of his employment, he is required to drive the
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company vehicle to transport welding equipment to various sites for various jobs.
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Counsel was given an opportunity to produce documentation from the defendant's
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employer in support of this and he has produced a letter dated the 26th of February 2021,
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from J and R Industrial Services which states as follows:
Sentence Judgment: R v Kirlew (Michael Anthony) Ind. 64/20; Coram: Richards J. Q.C. Date: 1.03.2021
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“Mr. Kirlew's employment commenced with J & R Industrial Services on the 9th day
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of December 2016 as a welder. I have now been made aware that Michael is before
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the courts and is at risk of losing his driver’s licence. The aim of this letter is to
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express unequivocally that the loss of his driver’s licence would not only place
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Michael's employment with this firm in serious jeopardy and cause said firm undue
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hardship, but it would also jeopardize ancillary -- innocent persons whose
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employment is so closely intertwined. Continuing in an effort to carry out his duties,
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Michael inter alia is required to drive the company truck to and from multiple
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locations regularly to effect repairs and collect items. He is in possession of a Group
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4 drivers licence and is amongst the few that can drive the company vehicle needed
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for these works. In closing at this time, I am respectfully asking the Court to
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consider not suspending this licence in consideration, if not for his employment and
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the benefits he requires due to his existing health issues, then the other employees
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that it would negatively affect. Should you require any additional information,
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please do not hesitate to contact the undersigned.”
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Finally, defence counsel submitted that the defendant is willing to do Community
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Service despite being employed fulltime, and is also willing to pay a fine, but would
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need time to pay.
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8.
Section 77 of the Traffic Act provides in ss.1:
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“A person who drives a vehicle or animal on a road without care and attention, or
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without reasonable consideration for other persons, commits an offence and is liable
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on summary conviction to a fine of $1,000 or to imprisonment for a term of six
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months or to both.”
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9.
Sub-section 2 states:
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“Where a person is convicted of an offence under subsection 1, the court may order
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that he be disqualified from holding or obtaining a drivers licence for such period
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not exceeding 12 months as the court may order and the particulars of the conviction
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shall be endorsed on his driving record.”
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Sentence Judgment: R v Kirlew (Michael Anthony) Ind. 64/20; Coram: Richards J. Q.C. Date: 1.03.2021
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10.
I have considered all the submissions made in respect of this matter with the greatest
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care. Having reviewed the facts, it is clear to me that the nature of the driving was
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appalling. Being and driving on the wrong way on a one-way street. The reasonable
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inference is that it was deliberately done, rather than being momentary inattention or by
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accident. There is every indication that it was done to either evade the authorities, that
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is, the uniformed police officer, or in angry response to being caught by the police and
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possibly being ticketed.
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Secondly, what is striking, is the location at which it occurred. This was at the main
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airport, a place where it might reasonably be expected for there to be vehicular traffic
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and passengers going to and from the airport building.
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Thirdly, the timing of the offence. This was in the middle of the day. I take into account
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the defendant's personal circumstances - all of them as outlined; his health issues, that
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he has no previous traffic convictions, that he is very contrite and remorseful and that he
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has pleaded guilty. All of this is significant mitigation which serves to cause me to
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reduce any sentence initially considered appropriate.
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Additionally, in considering whether there should be any period of disqualification, I
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bear in mind the indication of possible hardship, that being, the effect on his
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employment, the loss of his medical insurance, and, his poor health.
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There must however be a balancing of all factors. The elements of sentencing of -
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punishment and deterrence of such conduct - must both be given some weight in cases
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such as this.
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Sentence Judgment: R v Kirlew (Michael Anthony) Ind. 64/20; Coram: Richards J. Q.C. Date: 1.03.2021
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In considering the level of hardship likely to result, it is also noted that the letter from
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his employer does not indicate that the defendant is the only driver available for this task
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allotted, but that he is one of few.
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I had considered starting points of fines $500.00, Community Service of 120 hours and
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disqualification in a range of six to eight months. These are reduced in each case to take
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into account the mitigation detailed, and the personal circumstances of this defendant.
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Balancing all factors, in my view, the least sentence which would meet the justice of the
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case and the sentence which is thus imposed is one as follows:
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i.
A fine of $350 or two months imprisonment in default;
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ii.
In addition, a sentence of 80 hours of Community Service to be completed
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in 12 months;
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iii.
And he is disqualified from driving or holding a drivers’ licence for a period
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of four months starting from tomorrow, the 2nd of March 2021. His licence
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is to be endorsed accordingly.
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That is the sentence of the Court.
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Mr. Kirlew, I am required by law to advise you in respect of the Community Service
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Order that if you do not complete the community service as sentenced, you may be
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brought back before this Court and re-sentenced.
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Sentence Judgment: R v Kirlew (Michael Anthony) Ind. 64/20; Coram: Richards J. Q.C. Date: 1.03.2021
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Your disqualification starts from tomorrow so that allows you time to drive home today,
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to complete your preparations to make arrangements for a period of four months, which
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is the least I can impose on you. So you stop driving from tomorrow.
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Dated this the 1st day of March 2021
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Honourable Justice Cheryll Richards Q.C.
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Judge of the Grand Court