Brathwaite v Commissioner of Police

• Jurisdiction: Barbados
• Court: Divisional Court (Barbados)
• Judge: Douglas, C.J.,Williams, J.
• Judgment Date: 24 May 1968
• Docket Number: No. 21 of 1968
• Date: 24 May 1968

Divisional Court

Douglas, C.J.; Williams, J.

No. 21 of 1968

Brathwaite

and

Commissioner of Police

Appearances:

Mr. H.B. St. John for the appellant.

Mr. C.O. Tulloch for the respondent.

Criminal law - Sentences — Severity — Pleas of not guilty — Bad demeanour — Principles

JUDGMENT OF THE COURT:

1 On March 12th, 1968, the appellant was convicted by the magistrate of District “B” for driving his motor car at a speed in excess of the limit prescribed by statute. The magistrate accepted the evidence of the police constable and found that the appellant was driving his car at approximately 60 miles per hour along Bannatyne Road, Christ Church, when the permitted limit on the road was 30 miles per hour. The maximum fine of $240 was imposed on the appellant, payable in three months with the alternative of three months' imprisonment and the appellant was disqualified from holding or obtaining a driver's licence for six months.

2 The sole ground of appeal argued before this court was that this sentence was in the circumstances excessive. Counsel for the appellant urged that there was nothing on the record to suggest that the appellant should be treated other than as a first offender and submitted that no sufficient circumstances were disclosed as would justify the imposition of the maximum fine. He also submitted that the magistrate had, in passing sentence, taken into account matters which he should not have considered. The passage of the magistrate's reasons to which objection was taken reads as follows:

“However in this case the defendant chose to rely on his legal rights and to call upon the prosecution to prove him guilty. His main defence being that the point of the road at which he was checked was not called Bannatyne, but Balls. He failed and the prosecution succeeded. No penalty can be attached to such failure but neither is any mercy warranted in such a case where the defendant having thought that he was smart enough to escape the due consequences of his act fails to do so. In the circumstances, the court having seen this defendant and formed a very bad opinion as to his character with regard to honesty, veracity and sense of responsibility imposed upon this defendant a penalty which the court feels in all the circumstances of the case, especially his attitude and manner of conducting himself, is necessary to bring home to him that what he, did was wrong and should not be repeated.”

3 Counsel for the appellant urged that it was clear from this passage that the appellant's plea of not guilty affected his sentence as also did the unfavourable impression which the magistrate formed by observing and hearing him in court.

4 Before dealing with the appeal, reference is made to two cases which are important having regard to the matters raised. In R. v. Quinn 23 Cr. App. R. 196 Swift, J., delivering the judgment of the Court of Criminal Appeal, said ( 23 Cr. App. R. at p. 198):

“In our view it is not the function of a court which has to pass sentence for a particular offence of which a man has been found guilty to add to that sentence some further term of imprisonment for the commission of a supposed offence of perjury with which the...