R v Walker (Sentence)
| Jurisdiction | Bermuda |
| Judgment Date | 27 February 2023 |
| Court | Supreme Court (Bermuda) |
| Docket Number | Criminal Jurisdiction 2020 No 10 |
[2023] Bda LR 16
Criminal Jurisdiction 2020 No 10
In The Supreme Court of Bermuda
Causing death by careless driving — Starting point for sentencing — Aggravating and mitigating circumstances — Suspended sentence — Special reasons for reduction of disqualification period
The following cases were referred to in the judgment:
R v Gareth Jones [2013] 1 Cr App R (S) 20
R v Daniel [2016] Bda LR 70
R v Cooksley [2003] EWCA Crim 996
R v Soto and Waite [2023] EWCA Crim 55
R v Ranko Supar [2015] ONCJ 350
Wardman v R [2015] Bda LR 21
R v Richards [2021] EWCA Crim 1753
R v Sheppard [2010] 2 Cr App R (S) 54
Grant v R [2021] Bda LR 17
Mr C Mahoney for the Prosecution
M Daniels for the Defendant
JUDGMENT of Wolffe J
1. On 28 June 2022 the Defendant was found guilty by a jury for the offence of Causing Death by Careless Driving contrary to section 37A of the Road Traffic Act 1947 (the “RTA”).
2. On 3 February 2023, after hearing submissions from Counsel, I sentenced the Defendant as follows:
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i. Three years imprisonment
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ii. Disqualified from driving all vehicles for five years
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iii. Twelve demerit points
3. Set out herein are my reasons for doing so. However, before providing my reasons it is necessary that I provide a brief history as to why it took approximately seven (7) months after conviction for the Defendant to be sentenced.
4. On the same date that the jury delivered its majority verdict a Social Inquiry Report (“SIR”) was ordered to assist the Court with arriving at the appropriate sentence for the Defendant. The Defendant was then placed on bail pending receipt of the SIR (the Prosecution did not object to the Defendant's request to be placed on bail). The matter was set for 1 September 2022 to schedule a sentencing date as it is well-known that a SIR takes at least six (6) weeks to be produced by the Department of Court Services (“DCS”). However, on 30 August 2022, a mere two days before the return date, the Court received a letter from a Mrs Mia Bean, a Probation Officer within the DCS, stating that the Defendant had been advised by his lawyer (presumably Mr Marc Daniels who was the trial lawyer) not to participate in the interview process for the SIR because an appeal had been launched in respect of his conviction. The consequence of the Defendant not participating in the SIR process was that the SIR was not prepared and the Court was compelled to delay the sentencing of the Defendant. To exacerbate matters the Defendant did not appear in Court on the mention date of 1st September 2022 and a warrant was issued for his arrest.
5. The Defendant eventually appeared in Court on 13 September 2022 at which time Mr Daniels accepted that he advised the Defendant not to participate in the SIR process. Mr Daniels' reasoning was that whatever the Defendant would have said in the SIR may have had an impact on his eventual appeal and that any factual issues which may be decided on by the Court of Appeal may determine the eventual sentence which the Defendant may receive if the appeal is unsuccessful. Obviously, the Defendant was ill-advised by Mr Daniels as it is common practice for a trial judge to proceed to sentencing as soon as practicable after a conviction so that any appeal which is filed could be heard in respect of both conviction and sentence (if such sentence is appealed). Indeed, it is the Court of Appeal's desire to have appeals in relation to both conviction and sentence heard at the same time. I therefore confirmed my order for a SIR to be prepared and I set a sentencing date of 26 October 2022. Unfortunately, due to Court commitments which involved pressing jury trials a couple of sentencing dates had to be adjourned and the sentencing could not be set until 3 February 2023.
6. It is the responsibility of Counsel to advise their clients that it is imperative that they [the client] must abide by orders of the Court whether or not an appeal has been instituted. It was not for Mr Daniels to direct his client to not engage in the SIR process because as a result the sentencing of the Defendant was prolonged longer than it should have been. Whether or not the Defendant would say something in the SIR that would have an impact on his appeal, or whether or not any comments by the appellate jurisdiction may affect whatever sentence the Defendant may receive, are not factors that should be taken into consideration when proceeding with the sentencing of the Defendant.
7. The jury heard that on Saturday, 15 July 2018 at about 3.00am/3.15am a Jen-Naya Simmons was riding a Sym auxiliary motorcycle, registration no. 040AQ, in an easterly direction in the eastbound lane of North Shore Road in Hamilton Parish in Bermuda. At the time she was riding behind her friend Jada Simmons-Trott who was riding on another motorcycle with Jen-Naya's sister who was the pillion passenger. As Ms Simmons-Trott cleared a sharp corner and went onto a straight-away she saw a white/greyish van travelling in the opposite direction in the westbound lane. She said that she could clearly see the right wheel of this van either on or slightly over the centre yellow line and into the eastbound lane i.e. on her side of the road. She explained that she would have still cleared the van but that she was not comfortable being close to the van and so she went to her left to avoid the van.
8. Ms Simmons-Trott went on to say that after clearing the van she looked back for Jen-Naya and pulled over to give Jen-Naya time to catch up. Not seeing Jen-Naya she immediately proceeded to go back westerly in the westbound lane. She eventually came upon the motorcycle that Jen-Naya was riding laying on its right side in the eastbound lane and she then saw Jen-Naya in the eastbound lane not moving and unconscious. Other members of the public were near Jen-Naya.
9. An ambulance eventually arrived and Jen-Naya was taken to the hospital without a pulse and without cardiac activity. As a result resuscitative efforts were discontinued and Jen-Naya was pronounced dead. An autopsy report revealed that Jen-Naya sustained multiple skull fractures with underlying brain injury; multiple rib and sternal fractures with underlying aortic and pulmonary lacerations and haemorrhage; vertebral fractures; liver lacerations; left upper extremity open fracture; and multiple abrasions and lacerations. The preliminary cause of death was “Polytrauma Secondary to Road Traffic Collision”. A further report from forensic pathologist Dr Mark Millroy stated that the overall appearance of Jen-Naya was that she had been run over by another vehicle.
10. Answering questions from both the Prosecution and the Defence Ms Simmons-Trott stated that although Jen-Naya did not have a driver's license that she knew how to operate a motorcycle and had seen Jen-Naya to so on many occasions. The jury also heard that on three occasions Jen-Naya did not pass the Project Ride course which prepares high school students to get motorcycle licenses. She said that Jen-Naya failed but that it was not because Jen-Naya could not handle motorcycles. She also said that earlier in the day on the 14th July 2018 that Jen-Naya asked to borrow the motorcycle and that after Jen-Naya returned she could see that Jen-Naya had scratches and blood on her. Jen-Naya explained to her that she went down trying to avoid a dog which was in the middle of the road.
11. Ms Simmons-Trott also said that prior to the accident on 15 July 2018 that she and Jen-Naya, along with Jen-Naya's sister, attended a party where Jen-Naya drank no more than three shots of Hennessy alcohol. She said that she saw no signs of Jen-Naya being intoxicated including when she was riding the motorcycle.
12. Prosecution witness Quanae Burchall gave evidence that at about 3.15am on the day in question that she was riding slowly in an easterly direction past the Aquarium (which is west of the scene of the collision) when she passed a silver van travelling west in the opposite direction in the westbound lane. The lights on the van were turned off and it was not going fast or slow. She could see that the driver had on a white t-shirt. She thought that the van was going to come after her given the hour of the morning and because she was riding by herself. She kept riding and she came upon the body of Jen-Naya in the eastbound lane of the road. At first she rode off but she then turned around though and went back. She checked Jen-Naya's pulse but could not get any.
13. Ms Burchall continued to say that no-one else was on the scene for about two to three minutes but then she saw the same silver van come back through the scene travelling easterly in the westbound lane. The van stopped close to her [the distance between the witness box and the jury box] and the four people in the van looked down at Jen-Naya's body. The van then proceeded to drive through the scene and in an easterly direction. She said that she saw two males in the front of the van (one of whom was black) and two others in the back of the van but she could not ascertain their genders. She said that these people in the van did not say anything or offer any assistance.
14. During their investigation the police obtained CCTV footage taken of North Shore Road in Hamilton Parish to the west of the scene of the collision and it revealed that prior to the collision occurring a silver coloured Suzuki APV van, registration no. 49359, travelled in a westerly direction in the westbound lane near Shelley Bay Beach (which is west of where the collision occurred). The CCTV footage also revealed that after the collision occurred the same van was seen travelling east in the eastbound lane near Shelley Bay Beach at a faster speed than what it was seen earlier travelling westward. Further inquiries made at the Transport Control Department (“TCD”) revealed that the registered owner of...
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