Mascarenas, R. v [2018] EWCA Crim 1467

[2018] EWCA Crim 1467Case No 201800262/A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 8 June 2018
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE GROSS
MR JUSTICE WILLIAM DAVIS
MR JUSTICE JULIAN KNOWLES
Between
R E G I N ACrownv
Between
PETER TYLER MASCARENAS
Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
Ms C McElvogue appeared for Appellant
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[1]Peter Tyler Mascarenas is now aged 32.[2]On 30 June 2016, in the Crown Court at Snaresbrook, he pleaded guilty to an offence of dangerous driving. He was not sentenced until 12 December 2017. On that occasion he was sentenced to a period of 8 months' imprisonment, it was ordered to run concurrently to another sentence he by then was serving. No issue is taken with the period of imprisonment. The sentence he was already serving was one of six-and-a-half years for being concerned in the supply of cocaine, a sentence imposed at another court on 4 August 2017. The appellant was disqualified from holding or obtaining a driving licence for 5 years and 6 months and until an extended re-test was passed. It is that period of disqualification which is the subject of this appeal, the appeal against sentence being with the leave of the single judge.[3]The nature of the driving was as follows. It occurred in the middle of the evening on 12 May 2016. The appellant was driving a Mercedes in Hertfordshire. He had as passengers his partner and his two young children. There came a point when the police tried to stop his vehicle, since they wished to speak to him. When the appellant realised that the police wished to speak to him he drove off at high speed. There was a police chase for about 5 minutes through country lanes at speeds of around 80 miles per hour.[4]The appellant drove with a complete disregard for pedestrians or other traffic. Not only was there great risk to the lives of others unassociated with him but to his young family. After about 5 minutes the appellant was in a line of stationary traffic in a nearby village which gave the police the opportunity to detain him.[5]He made no comment when he was interviewed. There is in reality no explanation at all for this piece of driving.[6]Having imposed the concurrent prison term,

the judge said this about disqualification:

"More importantly is the ban which has to be imposed for dangerous driving and the ban I am going to pass takes account under a particular section which is section 147(b) of the Powers of Criminal Courts (Sentencing) Act 2000 and so the total ban is going to be one of five-and-a-half years, all right? That relates back to 30 June when an interim ban was imposed, sorry 30 June 2016, five-and-a-half years from then takes us through to the end of 2021. You will not be released until November 2020 so there is a further ban of about a year effectively when you are not in custody."
[7]The judge fell into error when he referred to section 147B of the Powers of Criminal Courts (Sentencing) Act 2000. That section relates to a person disqualified for holding or obtaining a driving licence under either section 146 or section 147 of the 2000 Act. This defendant, having been convicted of dangerous driving, was subject to an obligatory minimum disqualification of 12 months. He fell to be disqualified under section 34 of the Road Traffic Offenders Act 1988. However, that error was and is of no practical effect.[8]Section 147B of the 2000 Act is a section intended to allow a court to have regard to the fact that a defendant is subject to a custodial sentence which would have the consequence of diminishing or removing the effect of any disqualification as a punishment were it to be imposed in the ordinary way. That provision is mirrored by section 35B of the Road Traffic Offenders Act 1988. This is the like provision in relation to disqualifications under section 34 of the Road Traffic Offenders Act.[9]The application of section 35B was considered in detail in this court in R v Needham & Ors [2016] EWCA Crim 455, at paragraph 25 and onwards. It is not necessary for us to rehearse the detailed analysis of this court as set out in Needham. It suffices simply to refer briefly to some parts of the judgment, first at paragraph 26:
"This section [that is a reference to section 35B] does not use the mechanism of a discretionary period and an extension period of disqualification as section 35A does... Instead, where this section applies, the effect of subsections (2) and (3) is that in determining the length of disqualification, the court 'must have regard … if and to the extent that it is appropriate to do so' to the diminished effect of disqualification as a distinct punishment on a person who is also detained pursuant to a custodial sentence. Clearly then, where this section is engaged the phrase 'must have regard', cited above, appears to give a greater degree of latitude to the sentencer in fixing the term of disqualification than that which is achieved by the extension period mechanism under section 35A."
[10]It is unnecessary for us to discuss the provisions of section 35A and their effect. They are complicated and fully explained in Needham.[11]Going on, the court discussed the applicability of section 35B saying this at paragraph 28D:
"... there will be some cases where at the time of sentencing for an offence attracting disqualification the offender will already be serving a previously imposed custodial sentence. That situation has not been explored in detail before us, but it is clear that section 35B applies."
It follows that this is the very situation with which we are dealing.[12]Finally, we refer to paragraph 29 in Needham:
"It is to be noted that that approach will not apply in some cases. In section 35B Parliament in using the phrases 'must have regard' and 'if and to the extent that it is appropriate' has clearly entrusted some measure of discretion to the court as to whether to adjust the disqualification under the section to any extent or at all. In a case where a very lengthy custodial sentence is to be served for 'another offence' which is not motoring related, it might be anomalous or run counter to considerations of rehabilitation to impose an extremely long period of disqualification under section 35B in order that a comparatively short period of disqualification should take place after release from custody. Examples might include a motoring offence combined with a non-motoring related homicide attracting a life sentence with a long minimum term, or a case involving a very long extended sentence passed for sexual offending."
[13]Applying those principles to this case, we see nothing wrong at all in the judge taking advantage of the provisions of section 35B in order to ensure that the punitive effect of disqualification had some real effect on this appellant. Although the judge referred to Section 147B of the 2000 Act, the provisions of sections 147B and 35B are identical and it is appropriate to substitute a disqualification under Section 35B of the 1998 Act for the disqualification pursuant to the 2000 Act. The intended effect of the sentence imposed, as the judge made clear, was that for a little over a year after his release from his long custodial sentence for the drugs offence the appellant would be subject to disqualification.[14]Unfortunately the intention of the judge was not put into effect by the sentence he in fact imposed. He fell into error in two respects. First, any order for disqualification takes effect from the day on which it was imposed. Thus, orders for disqualification cannot be ordered to run consecutively (R v Meese (1973) 57 Cr.App.R. 568) nor can an order for disqualification be postponed or backdated. Second, he assumed that the interim disqualification imposed on 30 June 2016 when the appellant pleaded guilty to the offence of dangerous driving was still in force and that the appellant had been subject to this disqualification for a period of around 18 months. This assumption was incorrect. We understand why he made that assumption. No-one in the court below disabused him of this notion. Until a late stage of the hearing of the appeal we shared the assumption. If it had not been for the intervention of Mr Simon Heptonstall of the Crown Prosecution Service who by chance was observing the court’s business, we would have dealt with the appeal on a false basis. We are very grateful to him for his assistance.[15]The power to impose interim disqualification for holding or obtaining a driving licence is provided by Section 26 of the 1988 Act. Section 26(2) gives a court that power which is available to be exercised when deferring or adjourning sentence. Section 26(4) is in these terms: Subject to subsection (5) below, an order under this section shall cease to have effect at the end of the period of six months beginning with the day on which it is made, if it has not ceased to have effect before that time. Section 26(5) applies only to Scotland. Therefore, in this jurisdiction no interim disqualification can be longer than six months. On the facts of this case the interim disqualification expired on 30 December 206.[16]The way in which any period of interim disqualification is to be taken into account at a final sentencing hearing is set out in Section 26(12) which is as follows: Where on any occasion a court deals with an offender— (a)for an offence in respect of which an order was made under this section, or (b)for two or more offences in respect of any of which such an order was made, any period of disqualification which is on that occasion imposed under section 34 or 35 of this Act shall be treated as reduced by any period during which he was disqualified by reason only of an order made under this section in respect of any of those offences. Had the judge appreciated the statutory position at the time of sentencing in this case, he would have determined the appropriate period of disqualification pursuant to Section 34 of the 1988 Act. That period then would have been treated as reduced by six months. The judge then would have considered the effect of the lengthy custodial sentence to which the appellant was subject on the punitive effect of any disqualification by reference to the discretionary power in Section 35B of the 1988 Act. The judge clearly intended that the appellant should be disqualified for around 12 months after his release on licence from the lengthy sentence. He believed that this was the effect of the sentence he imposed.[17]We are satisfied that this was not the effect of the sentence. The period of disqualification commenced at the date of the order, namely 12 December 2017. Pursuant to Section 26(12) of the 1988 Act the period of disqualification was to be treated as reduced by six months. The period of 5 years and six months thus was to be treated as a period of 5 years commencing on 12 December 2017. That means that the appellant under the terms of the order made by the judge would be disqualified until December 2022. This was not the judge’s intention. He considered that the appellant’s disqualification should remain in force for around 12 months after his release from custody in November 2020 i.e. until around November 2021.[18]Although the appellant was a man with no driving record we are satisfied that a period of disqualification longer the statutory minimum period of 12 months was justified. Since the judge believed that the appellant had been disqualified from 30 June 2016 until the date of sentence, it may be that he considered that a period of a little in excess of 2 years was justified. However, the only clear indication we have of his intention is his reference to an effective period of “about a year” after release from custody. We propose to give effect to that intention. We do so by quashing the disqualification of 5 years 6 months imposed under Section 147B of the 2000 Act and substituting for it a period of 4 years 6 months pursuant to Section 35B of the 1988 Act. That period of disqualification runs from 12 December 2017. Due to the operation of Section 26(12) of the 1988 Act the period will be treated as being reduced by six months to take account of the period of interim disqualification. That means that the period of disqualification will expire on 12 December 2021. The appellant remains subject to the requirement to take an extended driving test before driving again. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.

Cited in 1 later judgment