Somner v R; Tucker v Miller (Police Sergeant)

• Jurisdiction: Bermuda
• Judgment Date: 30 August 2016
• Date: 30 August 2016
• Docket Number: Appellate Jurisdiction 2016 Nos 20 & 34
• Court: Supreme Court (Bermuda)

[2016] Bda LR 92

In The Supreme Court of Bermuda

Appellate Jurisdiction 2016 Nos 20 & 34

Between:

Louis Somner

Appellant

and

The Queen

Respondent

Nichole Tucker

Appellant

and

Fiona Miller (Police Sergeant)

Respondent

Mr S Dismont for the Appellants

Ms N Smith for the Respondents

The following cases were referred to in the judgment:

Minister of Home Affairs v Carne and Correia [2014] Bda LR 47

R v Olivera [2005] Bda LR 17

Grant v R; Lambe v Miller[2012] Bda LR 17

Appeal from Magistrates' Court — Jurisdiction of Drug Treatment Court to deal with alcohol addiction and traffic offences — Whether alcohol is a drug — Whether traffic offences fall under the Criminal Code section 68

JUDGMENT of Kawaley CJ

Introductory

1. The two appeals were heard together because they raise the same essential ground of appeal. The relevant background may best be described by reproducing the introductory paragraphs of Mr Dismont's ‘Appellants’ Submissions’:

• “1. The Appellants both suffer from substance misuse and, having pleaded guilty to impaired driving offences, they are seeking to overturn their sentences in order that they can gain the rehabilitative benefit of Drug Treatment Court (‘DTC’).

• 2. The ground of appeal in each case is that the Learned Sentencing Magistrates erred in not properly applying s 68 of the Criminal Code Act 1907, which provides for the Drug Treatment Court Programme.

• 3. The Appellants both have a history of impaired driving offences and in 2015 they pleaded guilty to another impaired offence, committed whilst they were already disqualified for impaired driving. Both Appellants suffer from addiction to alcohol and attribute their offending behaviour to their substance misuse. At sentencing they revealed their addictions but their requests for Drug Treatment Court were refused.”

Overview of the disputed legal issues

2. In the 1^st Appellant's case in the Magistrates' Court (Wor. Archibald Warner), the Learned Magistrate gave no written reasons for declining to refer the driving whilst disqualified offence to which the Appellant had pleaded guilty (on December 17, 2015) to the DTC. It is common ground that he found that this offence was not an eligible one. In the 2^nd Appellant's case, she pleaded guilty to driving whilst disqualified and refusing to supply a specimen on January 5, 2016. The Learned Senior Magistrate expressed sympathy for the underlying merits of the Applicant's submissions, but ruled that the DTC scheme did not apply to traffic offences because they were distinct from criminal offences. Although the Learned Senior Magistrate expressed the view that even if the 2^nd Appellant was legally eligible, the existing DTC structure might not be appropriate, this was on any view not a formal finding.

3. Mr Dismont wisely focussed his attack on the operative findings in both cases that the nature of the offences of which the Appellants had been convicted disqualified each of them from formal consideration for the DTC programme. He argued that there was no legal distinction between traffic offences and other criminal offences which was relevant for DTC purposes under section 68 of the Criminal Code. The DTC legislative scheme was designed to provide an alternative treatment option to offenders with addiction problems and the Appellants met the eligibility criteria prescribed. It followed that the Magistrates' Court in each case had erred in law in refusing to find that the Appellants were potential DTC clients, subject to a formal assessment of their needs.

4. This otherwise careful analysis breezed over what I considered to be a difficult and unavoidable threshold point; a point which both of the counsel who appeared below1 and the Learned Senior Magistrate clearly intuitively felt to be unproblematic in the 2^nd Appellant's case. Does section 68 and the DTC apply to offenders addicted to all ‘drugs’, controlled (or illegal) or otherwise, including alcohol? Or is the legislative scheme limited to persons with ‘drug’ addiction problems in the popular local sense, which would exclude legal drugs and, in particular, alcohol? The only point that was argued at first instance, perhaps less than comprehensively, was whether the legislative scheme extended to traffic offences.

5. In response to interventions from the Bench, Ms Smith embraced the narrower interpretation of the term “drug” in section 68, both on linguistic grounds and policy grounds, She argued that the limited scope of the term “drug” was clear, a point she reiterated when helpfully supplying a copy of the Explanatory Memorandum to the Bill which introduced the current version of section 68 into the Criminal Code in 2001 to the Court after the hearing. On the traffic offences point, she contended that legislative reform was necessary to create a dedicated alternative court scheme for drivers with alcohol problems, as illustrated by the development of ‘DWI’ courts in the United States; a related publication was also submitted to the Court. Crown Counsel also defended the Learned Senior Magistrate's view that traffic offences did not qualify, relying more on practical than conceptual grounds. The obligatory disqualification scheme and public safety implications of now prevalent drink driving offences made it undesirable for such traffic offenders to be able to opt out of deterrent sentencing required to protect the public.

6. Two issues accordingly fall for determination:

• i. does the DTC legislative scheme confer jurisdiction on the DTC to deal with alcohol addiction?

• ii. does the DTC legislative scheme apply to offenders who have admitted committing traffic offences?

7. I decline to consider the practical question of whether or not a suitable DTC treatment programme can be prepared in relation to alcohol. That is a question for the Magistrates' Court to decide in each case after determining that an offender is otherwise eligible for the DTC.

8. It is nevertheless important to view these abstract legal questions in the factual human context of the present appeals. The offences to which the Appellants pleaded guilty and the penalties which they received are as follows:

• i. 1^st Appellant: failing to provide a specimen of breath (section 35C Road Traffic Act 1947-fined $4000 and disqualified from driving for 5 years) and driving whilst disqualified (section 123 Motor Car Act 1951-fined $500);

• ii. 2^nd Appellant: failing to provide a specimen of breath (section 35C Road Traffic Act 1947-three months imprisonment suspended for 12 months and disqualified

  from driving for 5 years concurrent with previous disqualification) and driving whilst disqualified (section 123 Motor Car Act 1951—three months imprisonment suspended for 12 months). In addition she was made subject to a 12 months' Probation Order with conditions that she (a) abstain from alcohol and illicit substances and (b) submit to random drug testing.

9. Two repeat offenders have reportedly privately instructed their lawyer to avail themselves of what Mr Dismont described as the “carrot and stick” regime of the DTC with a view to overcoming the underlying cause of their offending. Their counsel argued that the DTC option, properly understood, is a far more rigorous and demanding one than the traditional penalties which have been imposed.

Does section 68 of the Criminal Code apply to offenders addicted to alcohol?

The relevant statutory provisions in their context

10. Section 68 (“Drug treatment programmes”) is found in Part IV (“PURPOSE AND PRINCIPLES OF SENTENCING”). The jurisdiction of the DTC the section creates is defined in the first three subsections:

• “(1) There is established a special...