Terry Darrell Flood v The Queen

• Jurisdiction: Bermuda
• Judgment Date: 08 August 2016
• Neutral Citation: [2016] SC Bda 77 App
• Docket Number: APPELLATE JURISDICTION 2016: 33
• Date: 08 August 2016
• Court: Supreme Court (Bermuda)

[2016] SC (Bda) 77 App

In The Supreme Court of Bermuda

APPELLATE JURISDICTION 2016: 33

Terry Darrell Flood

Appellant

and

The Queen

Respondent

Mr. Peter Sanderson, Wakefield Quin Limited, for the Appellant

Ms Kenlyn Swan, Office of the Director of Public Prosecutions, for the Respondent

(in Court) 1

Background

1 The Appellant, who appeared in person below, on May 6, 2016 pleaded guilty in the Magistrates' Court (Wor. Khamisi Tokunbo) to causing grievous bodily harm to Rozetta Augustus by driving his taxi without due care and attention on Church Street on November 23, 2015, contrary to section 37A of the Road Traffic Act 1947 (‘RTA’).

2 The Prosecution case was that the complainant was riding a motor cycle which was stationary waiting for a green traffic light at the junction of Church and Parliament Streets when she was struck by the Appellant's vehicle from the rear at around 7.15 pm. Although it was dark, the collision occurred in a well-lit area when it was raining and the roads were wet. The complainant suffered a broken wrist, dental trauma and facial abrasions.

3 The mitigating circumstances advanced by the Appellant before the Learned Magistrate were his long driving history with a clean record and poor visibility due to weather conditions. I assume in the Appellant's favour that he additionally mentioned, as his counsel contended, that one of the two streetlights at the junction was not working.

4 The Learned Magistrate correctly, it is common ground, determined that a first offence under section 37A of the RTA carries an obligatory 2 years disqualification. Section 4 (1) (a) of the Traffic Offences (Penalties) Act 1976 (‘TOPA’) came into play:

‘ (a) the word ‘obligatory’, the court shall order him to be disqualified for such period as is specified in that head as the period of obligatory disqualification in relation to that offence unless the court for special reasons thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified…’

5 The appeal accordingly turned primarily on the question of whether the Learned Magistrate was wrong to conclude that (a) special reasons as that term of art is legally understood had not been established by the Appellant, and this was because (b) poor visibility imposed an added duty to take care on the Appellant rather than constituting a special mitigating factor. These questions were, in light of the authorities placed before the Court by counsel in the course of the hearing, not difficult to resolve. However Mr Sanderson advanced further arguments, potentially supported by somewhat indirect authority, which merited further consideration. These were the contentions, firmly disputed by Ms Swan, that the following mitigating factors also constituted ‘special reasons’ in the requisite TOPA sense:

• (1) the carelessness which occurred involved only momentary inattention; and

• (2) the injury suffered by the complainant fell at the lower end of the grievous bodily harm scale.

The legal parameters of special reasons

6 Ms Swan referred the Court by way of authority for the legal definition of the term ‘special reasons’ to the following helpful and very pertinent statements by Ground CJ in Grant v R, Lambe v Miller [2012] Bda LR 17 at page 3:

‘ 8. The expression ‘special reasons’ occurs in various provisions of the United Kingdom legislation dealing with disqualification. Apparently there were divergent opinions on its meaning, as it was not statutorily defined, but these were resolved by the decision inWhittall v Kirby [1946] 2 All ER 552, a decision of the King's Bench Divisional Court presided over by the then Chief Justice, Lord Goddard. He endorsed the following statement of the law fromR v Crossan [1939] 1 NI 106, at pp. 112, 113:

“A ‘special reason’ within the exception is one which is special to the facts of the particular case, that is, special to the facts which constitute the offence. It is, in other words, a mitigating or extenuating circumstance, not amounting in law to a defence to the charge, yet directly connected with the commission of the offence, and one which the court ought properly to take into consideration when imposing punishment. A circumstance peculiar to the offender as distinguished from the offence is not a ‘special reason’ within the exception.”

9 Lord Goddard CJ also made it plain that personal mitigation, such as the impact of disqualification upon employment, did not suffice:

“The limited discretion must be exercised judicially… That a man is a professional driver cannot, as it seems to me, by any possibility be called a special reason. The fact that drivers are professional drivers would of itself indicate that they are more likely to be habitually on the roads than people who drive themselves, so there is all the more reason for protecting the public against them. By exercising discretion in favour of an offender because he is a professional driver or merely because he drives himself for business purposes, it is obvious that the court is taking into account the fact that in such cases disqualification is likely to work greater financial hardship than in the case of a person who uses his car for social or casual purposes. There is no indication in the act that Parliament meant to draw any distinction between drivers who earn their living by driving or who drive for purposes connected with their business and any other users of motor cars. That in many cases serious hardship will result to a lorry driver or private chauffeur from the imposition of a disqualification is, no doubt, true, but Parliament has chosen to impose this penalty and it is not for courts to disregard the plain provisions of an Act of Parliament merely because they think that the action that Parliament has required them to take in some cases causes some or it may be considerable hardship. Had Parliament intended that special consideration was to be shown to professional drivers or first offenders they would have so provided.”’

7 These pronouncements are insightful not simply because they articulate the well-recognised principle that special reasons must be mitigating circumstances which do not amount to a defence and relate to the circumstances of the offence as opposed to the character and circumstances of the offender. They also provide a sharp and highly relevant warning to judges sympathetic to appellants and/or defendants who drive for a living, not to allow their emotions to divert them from faithfully applying...