imposed on a Southampton man for his fifth offence for disqualified driving.

Clinton Hayward, 33, of Horseshoe Bay Road, was instead given a six month prison sentence suspended for one year.

But the sentence can never be activated, because Hayward was one of many to get his licence back last December due to a new law that came into effect on June 29.

The Traffic Offences (Penalties) Act permitted all those persons who had received consecutive periods of disqualification from the court before June 29 to get their licences back last December.

Hayward was sentenced to 100 hours of community service after he was convicted of his fifth offence in two years on March 11.

At that time the law stated that on a person's third or subsequent offence for disqualified driving within two years a mandatory six month sentence was to be imposed, or a $1000 fine or 12 months in prison.

The Crown argued that the magistrate erred in law when she failed to pass the mandatory six month prison sentence after Hayward's fifth disqualification within two years.

Referring to the relevant sections of the Traffic Act before recent amendments, Crown Counsel Mr. Melvin Douglas said that a period of imprisonment for six months was mandatory after the third offence within a two-year period.

"This is a specific recommendation,'' he said. "Unless there are special reasons, the court must order a period of imprisonment. The defendant has been convicted four times. This one is his fifth. All his disqualified driving convictions took place within nine months.'' Mr. Douglas pointed out that there were no special circumstances recorded that would justify his non-custodial sentence.

However, defence lawyer Mr. Philip Perinchief countered that the court should not use the old traffic law to try his client.

"As I now stand my client has had all previous disqualifications forgiven because of the retrospective effect of the new Act and its amendments. As of December 29 his slate is clean so he cannot now be imprisoned because there is nothing on which to base his imprisonment.

"Are we going to say on one hand he has no disqualifications, but then we are going to resurrect the old law and punish him for offences committed when he is deemed by the new law to have a clean slate?'' Chief Justice the Hon Mr. Justice Ward agreed with the Crown's argument that the magistrate erred when she did not impose the mandatory six month prison sentence. But he said that since Hayward had already served 60 of the 100 hours of his community service that introduced a "new element'' that changed the circumstances.

Mr. Justice Ward then imposed a six-month prison sentence suspended for one year and advised Hayward to finish the 40 hours community service he has left.