McDonald v AG (Royal Court : Appeal (Criminal) : MacRae) [2025] JRC 323 (1 December 2025)

JUDGMENT THE BAILIFF: 1. We will give our decision and the reasons now. We reserve the right to amend or vary our reasons before the judgment is published in due course.

2. This is an appeal against a sentence imposed by the Magistrate on 17 November. When passing sentencing on the Appellant the Magistrate made various remarks which we will come to in a moment.

3. This was a serious case of drunk driving - driving with excess alcohol - and it is agreed pursuant to the Magistrate's Court Guidelines that this was a Category D case. This Court has said from time to time that it is not bound by the Magistrate's Court Guidelines, but that observation does not apply to drink driving cases where the Magistrate's Court has had decades of experience of being effectively the only court which imposes penalties in relation to those matters and has detailed guidelines. This was a Category D case in that the Appellant's blood alcohol reading was between 200 and 241.

4. The starting point for a first-time offender pleading guilty was 5 months with a range of 4 to 6 months' imprisonment and a recommended disqualification of between 24 and 36 months. The Magistrate's Court is required to consider the effect of any aggravating and mitigating factors, noting it will have already taken into account the fact that this was a first time offender pleading guilty as we have said, and those factors indicating a greater degree of harm include that the vehicle was involved in an accident.

5. When the Magistrate sentenced the Appellant, she said "...you have to realise that this was a very high alcohol reading and you had a very serious accident. The risk you posed to the public was wholly unacceptable. It was about 6.20 on a Sunday morning. This not a place, a private property where there is no one around, this is a public road. Everyone has the right to be using that road. There may well have been dog walkers, joggers, people on their way to an early shift on a Sunday morning, someone going to work at Ransoms; anyone could have been on that road and it is by pure fortune that you have not caused a very, very serious injury accident or even a fatal accident, and the Court cannot tolerate an attitude where you can go out drinking, and you were drinking at the Dolphin and at the Pembroke almost solidly for about eight hours..." The Magistrate then went on to record that you went on to a party and then drove the following morning when you were in the Magistrate's description " grossly intoxicated ", the reading being between 2½ and 3 times the legal limit and that was taken - as she observed - more than two hours after you had finished driving so the reading when you were driving was probably approaching 3 times the limit.

6. The Magistrate went on to take into account the fact that you were of previous good character, that you were very sorry about what had happened and also took into account the fact you have two very young children, one of whom in her words " has a serious health condition " and she said "but arrangements will have to be made for your children; you will have to go to custody". She said " I know you will be upset about going to custody and I know you will be very upset about your children, but how much worse would it have been if the children had not had their mother coming back, if you had managed to kill yourself in that accident or someone else". We agree with and endorse all the observations that she made to you on that day.

7. The Magistrate said that the starting point for the offence was 5 months, but this was an aggravated example of the offence because there was an accident which she described as " horrendous " when your car was very badly damaged when it hit a wall and she said so the Court could have been looking at 6 perhaps even 7 months, but as an act of mercy to you and your children she reduced that to 4 months' imprisonment. She disqualified you from driving for 36 months with the obligation to have a retest before you could drive again.

8. The Magistrate subsequently, after you had spent four or five days in custody, granted you bail pending appeal. She correctly described the principles on which bail pending appeal can be granted " firstly whether the sentence would be served before the appeal is heard" and she said " we know that's not the case because the Royal Court has managed to list your appeal very rapidly" - that is today's hearing. The second circumstance warranting the court granting bail pending appeal involves considering whether the appeal is likely to succeed. The Magistrate observed, as she was entitled to, that the appeal was not likely to succeed because the sentence was well within the Magistrate's sentencing guidelines and in fact far below the starting point. But she went on to observe "...in my view the Court must retain some residuary discretion because it cannot always be right to refuse bail pending appeal, and in this case I recognise that it is only a short time pending appeal. You are the mother of two young girls. I think it would be right that you have some time with them. It may be that - or I expect the Royal Court to impose the custodial sentence but as an act of mercy, as it were, I will allow you to go home to your children this evening." 9. During the time you were in custody we understand that your mother, who has quite significant health issues of her own and lives in a one bedroom flat, was looking after the two girls.

10. The Court's powers on appeal are prescribed by statute and case law under Article 33 of the Criminal Procedure (Jersey) Law 2018 . A defendant convicted by the Magistrate's Court has a right of appeal to this Court and under Article 36 the Court has wide powers including to confirm, reverse or vary the decision of the Magistrate or indeed to remit the matter to the Magistrate with its opinion and to make such other order as it thinks just, so long as that was a power within the power that the Magistrate's Court has or had.

11. As to the test on appeal this Court, (see Ahmed v AG [2006] JRC 196 ) needs to find that the sentence imposed by the Magistrate was wrong in principle or manifestly excessive if it is to interfere. This is not a re-hearing. This is not a second go for an appellant on the same facts to ask this Court to sentence him or her afresh.

12. However, in the case of Bhojwani v AG [2011] JLR 249 to which we have been referred by the Crown, the Court of Appeal set out the test for an appeal from the Royal Court to the Court of Appeal and it has been said on more than one occasion that the same approach is justified on appeals from the Magistrate's Court to this Court. In Bhojwani the Court of Appeal said "In broad terms, it is submitted that the court will interfere - (a) where the sentence is not justified by law, in which case it will interfere not as a matter of discretion but of law; (b) where sentence has been passed on the wrong factual basis; (c) where some matter has been improperly taken into account or there is some fresh matter to be taken into account; or (d) where the sentence was wrong in principle or manifestly excessive." Well, none of those considerations apply here save for - arguably - there is or may be some fresh matter to be taken into account.

13. As to the Court's power to consider fresh matters, we considered the decision of the Court of Appeal in Norris v AG [2014] JCA 087 where the Court of Appeal referred to AG v Gorvel [1973] JJ 2503 , a judgment of Le Quesne, Judge of Appeal, in which he cited principles set out by the English Court of Appeal by Lord Parker, LCJ in R v Parks [1961], 46 Cr. App. R. 29 as follow: "Those principles can be summarised in this way - First, the evidence that it is sought to call must be evidence which was not available at the trial. Secondly, and this goes without saying, it must be evidence relevant to the issues. Thirdly, it must be evidence which is credible evidence in the sense that it is well capable of belief; it is not for this court to decide whether it is to be believed or not, but evidence which is capable of belief. Fourthly, the court will, after considering that evidence, go on to consider whether there might have been a reasonable doubt in the minds of the jury as to the guilt of the appellant if that evidence had been given together with the other evidence at the trial..." 14. This is the approach to permitting fresh evidence on an appeal against conviction but in Norris the Court held at paragraph 50 that by parity of reasoning the same approach ought to apply in appeals against sentence, although it is fair to say that the Court perhaps adopts a slightly less strict approach to admission of fresh evidence on appeals against sentence than it does in respect of appeals against conviction.

15. So what is said to be the fresh evidence in this case? It is said to be medical evidence in relation to M aged 7 and her severe asthmatic condition. Looking at the test, the first issue is was this evidence that was not available at the hearing before the Magistrate? That is one key issue. The evidence in question is medical records to which we will return in a moment. That evidence it is said is relevant. As to the third limb of the test, the evidence is plainly credible as they are hospital records. Fourthly is it evidence which may have an impact on the sentence? That is also a live issue.

16. So, returning to M's health, somewhat surprisingly it was not something mentioned at all in the Pre-Sentence Report. The report does talk about the Appellant, her health, her mother's health and the ages of the children but does not deal with this matter. It is nonetheless front and centre of the Appellant's letter of remorse that was, we understand, before the Magistrate and which the Appellant sent to defence counsel on the 9 October. Having expressed her remorse and shame, the main focus of her message is her children, the youngest of whom suffers from brittle asthma, a rare and severe form of asthma that causes sudden life threatening attacks with little or no warning. She says " Brittle asthma is characterised by extreme variability in airway obstruction, making it unpredictable and difficult to manage. My daughter has required frequent hospital admissions throughout her life and has needed to be in the resuscitation bay within A&E on many occasions". She speaks of hospital admissions and that she has requested documentation, in particular in support of her assertion that there were two hospital stays in September, and she goes on to talk about being the primary and only carer with no support network to rely on for regular childcare and her concerns about being unreachable should M require urgent medical attention.

17. So, there was her letter, but nothing in the Pre-Sentence Report. There was mention of this matter by Defence counsel in his oral submissions to the Magistrate having dealt with various aspects of the circumstances of the offence. He said - "Without going into too much detail in this Court, my client has two young daughters, one of whom has a chronic condition with acute and regular flareups of that condition and they are life-threatening, Ma'am, and what this means on a routine basis is that mum has to monitor her daughter and provide her with medication and comfort and support and also call the ambulance on a routine basis and get her to hospital, because if she does not then, as I say, this condition could be life-threatening." Then he moved on to other matters of mitigation.

18. Those submissions did not refer to hospital admissions or give any real hint as to the full extent of the daughter's condition. In that regard, as we have already noted, the letter of remorse from the Appellant did say that she had requested documentation - and she had. She had made a number of requests and the relevant material was received by her on about the 13 November, and sent by her to her counsel on 14 November. It was extensive and - we learn today - consisted of 165 pages of correspondence, 32 pages of clinical notes, 200 pages of emergency department handover notes, a 10 page questionnaire, 691 pages of hospital records, 65 pages of pathology notes and 17 pages of radiology notes.

19. Defence counsel intended to condense or summarise this material for the Magistrate's Court. He did not have time to print it out and prepare a bundle that would have been useful to the Magistrate. He accepts he did not tell the Court about the fact that he had these records or the contents of the records and apologises to this Court and to the Appellant for not providing these records to the extent that they were relevant. We have been provided with the 32 pages of the clinical notes which (of course) were not before the Magistrate. It is beyond the scope of this ex tempore judgment to set out in detail the contents of those notes but they particularise no less than six admissions including overnight stays to hospital so far this year including a three night stay in January, a three night stay in February, a stay in July, a stay in September, a three night stay in late September and a two night stay in October and on most if not all of these occasions the Appellant stayed overnight on the ward with her daughter. It is clear from the records that her daughter was extremely unwell on all those admissions and required, on most of the occasions extensive treatment before she was well enough to go home. The admissions were described as acute, severe exacerbations of asthma. As we say we do not think it helpful or necessary to particularise the contents of these records but some of them are troubling and make difficult reading.

20. So returning to the test in Norris; this was material that was available in the sense that it could have been put before the court below but it was only received at the eleventh hour by defence counsel. That is no fault of the Appellant; she had been asking for these materials for several weeks. In the circumstances we have no doubt that this is material to which we should have regard and we do think it is both relevant to the Appellant's sentence and credible.

21. What impact would it have had on the Magistrate had it been before her we cannot say for certain, and one option today would be for us to remit the case to the Magistrate to find out. But the Court has been assembled here today. The Appellant has already gone to prison for a few days and been bailed pending appeal and it is only right in our judgment that she should learn her fate today.

22. Although the Magistrate was, as we have said, entirely entitled to come to the conclusions that she did on the material available to her we have additional material available to us today. The Magistrate herself in this case spoke about mercy. The Court is entitled to take a merciful course if it thinks appropriate. It is right to observe, as has been observed by this Court in other cases, that parents cannot avoid custody simply by declaring they have children that need them - they should have thought about that before committing offences, particularly serious offences such as this.

23. There are very particular features about this 7 year old girl which lead us to be concerned that it may be directly contrary to her welfare if her mother was to be returned to custody today.

24. Accordingly, as a direct alternative to 4 months' imprisonment we impose a sentence of 100 hours Community Service. The sentence of disqualification will remain, as will the need for an extended retest.

25. Ms McDonald can you stand up please. It goes without saying that you have been very fortunate today. You must do all hours. It is very important that you do not commit any offence like this ever again because that would obviously result in an immediate prison sentence. Do you follow? We hope that you will be able to keep your job and accommodation, be able to get on with your life, and continue to give your daughter the care that she needs. Authorities Criminal Procedure (Jersey) Law 2018. Ahmed v AG [2006] JRC 196 . Bhojwani v AG [2011] JLR 249 . AG v Gorvel [1973] JJ 2503 R v Parks [1961], 46 Cr. App. R. 29 Page Last Updated: 22 Dec 2025 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII