Chadwick P, Forte JA, Mottley JA
IN THE COURT OF APPEAL OF CAYMAN ISLANDS Criminal Appeal No. 27 of 2010 (Summary Court Appeal No. 26/09A-C) (C#s: 4922/09, 4805/09, 4806/09 & 4807/09) Between: HER MAJESTY THE QUEEN - and - THEODORE O'NEIL MORGAN NOTIFICATION TO AUTHORITIES OF RESULT OF APPEAL To: The Attorney General This is to give you notice that THEODORE O'NEIL MORGAN having appealed against the decision of the Grand Court dated 27th day of August, 2010 which allowed his appeal in respect of period of disqualification- reduced. The conviction and sentence originally passed upon him by the Summary Court on the 8th day of July, 2009 were as set out below: C# 04922/09 (1) DRIVING WHILST DISQUALIFIED 1 week imprisonment. Disqualified for a further 2 years from 19.1.10 until 18.1.12 C# 04922/09 (3) DRIVING WITHOUT INSURANCE Disqualified for 12 months concurrent with charge (1). C# 04806/09 (1) DRIVING WHILST DISQUALIFIED 2 weeks imprisonment. Disqualified for a further 2 years from 19.1.12 until 18.1.14 C# 04806/09 (3) DRIVING WITHOUT INSURANCE Disqualified for 12 months concurrent with charge (1). C# 04805/09 (1) DRIVING WHILST DISQUALIFIED 3 weeks imprisonment. Disqualified for a further 2 years from 19.1.14 until 18.1.16. C# 04805/09 (3) DRIVING WITHOUT INSURANCE Disqualified for 12 months concurrent with charge (1). C# 04807/09 (1) DRIVING WHILST DISQUALIFIED 4 weeks imprisonment. Disqualified for a further 2 years from 19.1.16 until 18.1.18. C# 04807/09 (3) DRIVING WITHOUT INSURANCE Disqualified for 12 months concurrent with charge (1). The Court of Appeal, having adjourned the matter on 26th November 2010 due to the appellant not appearing has finally determined the said appeals, and has this 30th day of November, 2010 given judgment therein to the effect following:
Appeal 27/10 dismissed. Appellant not appearing.
Crown granted leave to appeal out of time. Appeal allowed.
Sentences imposed by the Magistrate on 8th July 2009 restored: Theodore Morgan thus banned from driving until 18th January 2018.
Transcript of the reasons given orally to be released. Dated this 13th day of September, 201 IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS CRIMINAL APPEAL NO. 27/10 BETWEEN: THEODORE MORGAN Appellant and THE QUEEN Respondent BEFORE: THE RT. HON. SIR JOHN CHADWICK, President THE HON. JUSTICE I. FORTE J.A. THE HON. JUSTICE E. MOTTLEY J.A. Court Proceedings on 30 November 2010 APPEARANCES: Mr. J. Masters for the Respondent THEIR LORDSHIPS' RULING CHADWICK, President: The appellant, Theodore Morgan, was convicted, during the first six months of 2009, on a number of counts of driving whilst disqualified and driving without insurance. The offences were committed on the 27th of February 2009, the 29th of April 2009, the 29th of May 2009, and the 30th of June 2009. They came before the Magistrate on the 8th of July 2009. Mr. Morgan entered a guilty plea; and he was sentenced on that day. Section 78 of the Traffic Law provides (so far as material) that: "Whoever drives or attempts to drive ... while under a period of disqualification is guilty of an offence and liable on summary conviction to a fine of one thousand dollars or to imprisonment for one year, and also shall be disqualified from holding or obtaining a driver's licence for a period of twenty-four months extending from the period of his previous period of disqualification or from the date of his conviction whichever is the later; and the particulars of the offence shall be endorsed on his driver's record." There are three features of note in that section. The first is that the liability to a fine or imprisonment plainly prescribes a maximum penalty; and enables the Court to impose either no fine or no imprisonment or a lesser fine or a lesser period of imprisonment. Second, in contrast with that first limb of the section, the second limb begins with the mandatory words "and also shall be disqualified". There is no room, within that limb, for a discretion to impose a lesser period of disqualification than 24 months; nor, I may add, to impose a greater period of disqualification than 24 months. Third, the period of disqualification is to commence on the expiry of any previous period of disqualification or the date of conviction, if later: so that, in circumstances where there are a series of offences and a series of convictions, the periods of disqualification must run consecutively and not concurrently. That is what the section requires: the Magistrate appreciated that. In relation to the first of the convictions for driving while disqualified -- that is the offence committed on the 27th of February 2009 -- the Magistrate imposed a sentence of one week's imprisonment and of disqualification for a period of two years from 19th January 2010 until 18th January 2012. [19th January 2010 was the date on which a then existing period of disqualification under an earlier conviction and sentence would expire.] In relation to the offence of driving while disqualified on 29th April 2009, she imposed two weeks' imprisonment and a further period of disqualification of two years from 19th January 2012 until 18th January 2014. In relation to the offence of driving while disqualified on 29th May 2009 she imposed three weeks' imprisonment and a further period of two years from 19th January 2014 until 18th January 2016. And in relation to the fourth offence of driving while disqualified -- that committed on the 30th of June 2009 -- she imposed four weeks' imprisonment and a further period of disqualification for a further two years from 19th January 2016 until 18th January 2018. The effect of those sentences was that Mr. Morgan was to serve a cumulative total of ten weeks' imprisonment and the periods of disqualification extended until the 18th of January 2018. Mr. Morgan appealed from those sentences to the Grand Court. Justice Cooke, sitting in the Grand Court, allowed the appeal and varied the sentences of disqualification. He increased each period of disqualification to a period of five years and directed that those periods of five-year disqualification should run concurrently. The effect, therefore, was that Mr. Morgan was disqualified from driving for an overall period of five years from 18th January 2010. Mr. Morgan appealed to this Court. He did so on the grounds set out in his notice of appeal filed on the 10th September 2010: "Even though [his] driver's [licence disqualification] was reduced from eight years to five years concurrently as of January 19th 2010, [he was] appealing to the Court of Appeal to have the disqualification of [his] driver's licence hopefully further reduced by the judge, as well as to kindly ask the judge to be a little more lenient, in terms of hopefully reducing further the disqualification of my driver's licence, considering it is currently disqualified for five years as of 19th January 2010." I observe that Mr. Morgan's history does not suggest that it makes much difference what period of disqualification is imposed on him; because he seems to ignore any period of disqualification repetitively. But, I note that he has not been convicted since the middle of 2009. Mr. Morgan's appeal was listed for hearing before this Court on Friday, 26th November 2010. Mr. Morgan did not appear at the hearing of that appeal. The Crown did appear by counsel, Mr. Masters. In preparing to resist Mr. Morgan's appeal Mr. Masters had noticed that the sentence passed by Justice Cooke in the Grand Court seemed unlawful on two grounds. First, that the Grand Court judge increased the period of disqualification on each count from the statutory maximum of two years to a period of five years; and, second, that instead of providing for those periods to run consecutively -- as section 78 of the Traffic Law requires -- he directed that they should run concurrently. Mr. Masters came to this Court expecting to be able to advance those points on the appeal of Mr. Morgan; but, as I have said, Mr. Morgan did not appear to present his appeal. In those circumstances, the Crown might have asked this Court to dismiss Mr. Morgan's appeal on the basis that it was not being pursued. But to take that course would have left in place a sentence which on its face was unlawful. In those circumstances, the Crown thought that the appropriate course was to seek leave of the Court to appeal against sentence out of time; on the grounds that the periods of disqualification substituted by the Grand Court were unlawful; and that a formal cross appeal had only become necessary because the appellant had failed to prosecute his appeal. It is said the Crown did not realise the error in the Grand Court's sentence until the appellant had filed his appeal; and that the appellant is not prejudiced by the timing of the application; coming, as it does, at the time when he was still pursuing an appeal of his own. The Crown's application is supported by an affidavit sworn by Mr. Masters on 29th November 2010. We are satisfied from the material that has been put before us -- in the form of a series of e-mails, both from Mr. Masters to Mr. Morgan and from the Registrar of the Court to Mr. Morgan -- that Mr. Morgan is aware that this matter has been listed for hearing this morning. There have been telephone calls in which he has been reminded of this hearing. There is no indication from Mr. Morgan that he is intending not to come this morning; or that anything has taken place which has prevented him from coming this morning. The reason given to the Registrar for his failure to appear on Friday was simply that he had forgotten. It is difficult to think that he could have forgotten again, having been reminded as recently as Friday, yesterday and this morning. In those circumstances, we think it appropriate to dismiss Mr. Morgan's appeal against the judgment of the Grand Court; but to allow the Crown's application to appeal out of time from that judgment. And, further, on the Crown's cross appeal, to allow that appeal on the basis that the order made by the Grand Court substitutes for the lawful sentence passed by the Magistrate a sentence which is unlawful having regard to the provisions of section 78 of the Traffic Law. It seems to us, in the circumstances, that it would be wrong to allow a sentence to remain on the record when it is plain that it was a sentence which the Grand Court had no power to pass. The appropriate course is to set aside the sentence passed in the Grand Court and to confirm the sentences imposed by the Magistrate on 8th July 2009. In the circumstances that Mr. Morgan has not appeared, and so has not been heard, I should indicate that it is open to him to apply to this Court for the matter to be reopened. But for such an application to succeed, he would need to persuade this Court: first, that there has been some good reason for his non-appearance; and second, that reopening the matter would be likely to, or at least might, lead to a different result. But, as things are, we dismiss his appeal; we set aside the sentence imposed by the Grand Court; and we restore the sentences imposed by the Magistrate, so that the cumulative periods of disqualification run until 18th January 2018.