R v Mohammed

• Jurisdiction: Cayman Islands
• Judge: (Sanderson, J.)
• Judgment Date: 07 August 2000
• Court: Grand Court (Cayman Islands)
• Date: 07 August 2000

Grand Court

(Sanderson, J.)

R.

and

MOHAMMED

Ms. C. Richards, Crown Counsel, for the Crown;

H.D. Murray for the accused.

Cases cited:

(1) O”Donoghue v. R., 1998 CILR 362, considered.

(2) R. v. Boswell, [1984] 1 W.L.R. 1047; [1984] 3 All E.R. 353, applied.

(3) R. v. Ebanks (D.K.), 1984–85 CILR 432; on appeal, C.A., March 26th, 1986, unreported, considered.

(4) R. v. LockeUNK(1995), 16 Cr. App. R. (S.) 795; [1995] Crim. L.R. 438, considered.

(5) R. v. McKenzie, Grand Ct., December 12th, 1997, Case No. 55 of 1997; on appeal, C.A., April 8th, 1998, Crim. App. No. 50 of 1997, unreported, considered.

(6) R. v. McLaughlin (J.J.), Grand Ct., May 26th, 2000; on appeal, C.A., November 21st, 2000, Crim. App. No. 40 of 2000, unreported, followed.

(7) R. v. Millington, [1996] RTR 80; [1996] Cr. App. R. (S.) 45, considered.

(8) R. v. Shepherd, Att.-Gen.”s Reference (Nos. 14 & 24 of 1993), [1994] 1 W.L.R. 530; [1994] 2 All E.R. 242; (1994), 99 Cr. App. R. 39, considered.

(9) R. v. Taziker, Att.-Gen.”s Reference (No. 36 of 1994), [1995] RTR 413; (1995), 16 Cr. App. R. (S.) 723, considered.

(10) Rivers v. R., 1988–89 CILR 77, considered.

Legislation construed:

Traffic Law (1999 Revision) (Law 24 of 1991, revised 1999), s.71(2):

‘Whoever drives or attempts to drive or is in charge of a vehicle on a road when-

(a) he is under the influence of drugs or alcohol to such an extent that his efficiency as a driver is impaired; or

(b) he has consumed alcohol in such a quantity that the proportion thereof in his breath, blood or urine exceeds the prescribed limit,

and thereby causes the death of another person, is guilty of an offence and liable on conviction on indictment to imprisonment for ten years and shall be disqualified from holding or obtaining a drivers licence for twelve months or such period as the Court may order…’

Road Traffic-causing death by driving while intoxicated-sentence-tariff five years” imprisonment-aggravating and mitigating factors for consideration

The accused was charged in the Grand Court with causing death by driving while intoxicated.

The accused was driving in good conditions when he drove round a bend and into the back of a stationary vehicle approximately 280 ft. further down the road. The victim, who had been adjusting a tow-line, was thrown against a fence-post at the road side and died of his injuries. The accused was found to have a blood-alcohol reading of 130 mg., the legal limit being 100 mg. He pleaded guilty. He had no previous convictions and was of good character.

The Crown submitted that the accused had failed to appreciate that the victim”s vehicle was stationary because he had consumed alcohol considerably in excess of the legal limit, and this was to be regarded as an aggravating factor in sentencing him.

The accused submitted in reply that a minimal sentence was appropriate, since (a) none of the potentially aggravating factors such as speeding, deliberate bad driving, failing to stop, or driving whilst disqualified was present here; (b) he had not been far in excess of the legal alcohol limit and the accident had occurred as a result of inattention, rather than recklessness; and (c) he was remorseful, had never committed an offence before and was unlikely to do so again.

Held, sentencing the accused as follows:

(1) The possible aggravating factors to be considered when sentencing for an offence of causing death by driving whilst intoxicated were the same as those for causing death by dangerous driving, save that in the former the presence of alcohol would aggravate the offence only if sufficiently above the legal limit. Those factors were: racing or speeding; failure to heed the warnings of passengers; persistent and deliberate bad driving; the commission of other offences at the same time, e.g. driving without a licence or whilst disqualified; having previous convictions for bad driving or drunk driving; the death of more than one person resulting from the offence; and failing to stop or driving dangerously while attempting to avoid detection. Conversely, possible mitigating factors were: the isolated nature of the incident of bad driving; having a good driving record; a plea of guilty; the showing of remorse; and the

emotional effect on the accused if the victim were known to him (page 403, line 8–page 404, line 11; page 406, line 44 – page 407, line 3).

(2) In the present case, the accused”s blood-alcohol level was an aggravating factor, but of a minor nature, as it represented only one or two drinks above the legal limit. His failure to see the victim”s vehicle also aggravated the offence and probably resulted from intoxication. The court was mindful of the need to deter others from driving when unfit to do so. In mitigation, the accused”s character references and pre-sentence reports showed that he was of good character, and he had demonstrated remorse and apologized to the victim”s family. Sentencing guidelines for the Cayman Islands had suggested a tariff of five years” imprisonment for such offences. However, the appropriate sentence here was 15 months” imprisonment and disqualification for three years (page 407, line 4 – page 408, line 9).

10	SANDERSON, J.: Apart from the decision of Graham, J. in R. v
McLaughlin (6), I am unaware of any authorities or any cases on this
subject since the remarks of Harre, C.J. at the opening of the Grand Court
in May of 1998 and I therefore felt it appropriate to give more detail in
this judgment than I might otherwise have done.
15	The facts in this case are tragic and undisputed. I will not recite all of
them but only highlight a few of the more significant ones. The accused,
Colin Mohammed, was driving his motor vehicle while intoxicated. His
reading was 130 mg. of alcohol in 100 ml. of blood. The legal limit is 100
mg. He was driving west on Crewe Road at approximately 10.45 p.m. on
20	January 10th, 2000. The road conditions, weather and general visibility
were good. He came around a sharp corner with limited visibility. Two
vehicles had stopped on the road in the lane in front of him. The lead
vehicle was a Ford Ranger which had been towing an Oldsmobile.
However, the tow-line had broken and was being re-tied. The deceased,
25	Mr. Vince Christian, together with two others, was standing between the
front of the Oldsmobile and the back of the Ford Ranger. The parking
lights were on in both vehicles.
Mr. Mohammed, through his counsel, says he did not notice that the
two vehicles were stationary; he thought they were moving. No doubt his
30	failure to determine correctly that the vehicles were stopped was
influenced by his consumption of alcohol. It is understandable that when
you come around a corner you could momentarily be deceived into
thinking the vehicles were moving, but there were approximately 280 ft.
from the apex of the corner to the point of impact, which in

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