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Judge quashes jail term for former Bermuda Day race winner

Lamont Marshall (Photograph by Akil Simmons)

The Supreme Court has quashed a prison sentence for a former Bermuda Half-Marathon Derby winner who admitted drinking and driving.

Lamont Marshall, 37, from Devonshire, was sentenced to six months behind bars last September after he opted out of the DUI Court programme.

But Puisne Judge Shade Subair Williams said in a judgment delivered on May 12 that the sentence was unfair because sentencing magistrate Juan Wolffe in DUI Court suggested Marshall would receive a fine and period of disqualification if he left the programme.

Mrs Justice Subair said: “It was reasonable and even inevitable that the appellant would rely on the senior magistrate’s sentence indication as an accurate description of the maximum penalty he would likely face if he were to leave the treatment court programme.

“More so, it is clear that he did rely on that indication in confirming his decision that he would face a full sentence over remaining in DUI Court.

“For that reason, it was indeed unfair and wrong in principle for the appellant to be sentenced more severely than the earlier indication given directly to him from the bench.”

While she added that the DUI Court operates “less formally” than regular court sessions, magistrates were still bound by their judicial obligations.

Marshall pleaded guilty on April 8, 2021 to drink-driving, driving while disqualified and refusing to take a breath test.

The court heard that police stopped Marshall’s car as he drove in an “erratic manner” along South Road, near Warwick Camp, on April 1 that year.

However, he then sped off, ignoring stop signs and crossing into the wrong lane on several occasions.

Police used specialist equipment to stop him near the King Edward VII Memorial Hospital. When they looked in his vehicle, they found several alcohol containers on the front passenger seat.

Marshall admitted that he had been drinking, but said he could not remember how much he had drunk.

Police found that Marshall had been banned from the roads on June 12, 2020 until December 11, 2021 and his driver’s licence had expired on July 22, 2020.

The court heard that Marshall was referred to DUI Court after he admitted that he drove while impaired and disqualified, but he was later found to be in non-compliance with the treatment court’s rules because he had been caught drinking.

During a subsequent discussion in the DUI Court, Mr Wolffe told Marshall: “We can make a decision today, because we can issue all of that today and have you rid yourself of us and say Merry Christmas.

“You’ll be off the road probably for five years. This your third offence. What you want to do?”

He later added that it appeared that Mr Marshall wanted to take the “easy way out” and continue to drink.

Mr Wolffe said: “That’s the problem there and you would rather be off the road for five years, with a $5,000 fine.”

Marshall opted out of the programme the following week and was sent back to Magistrates’ Court to be sentenced by Mr Wolffe.

During the sentencing, Mr Wolffe said: “Over the past years, the defendant has placed members of the community in jeopardy and has caused injury to members of the public.

“There is no indication whatsoever that he will not continue to do so.

“In the circumstances, having taken into consideration sections 53 to 55 of the Criminal Code, a term of imprisonment is warranted in this case.”

The magistrate fined Marshall $5,000, disqualified him for driving for five years and sentenced him to six months in prison.

Marshall spent 19 days behind bars before he was released from custody on October 1 pending the results of his appeal to the Supreme Court.

Mrs Justice Subair Williams found that the sentence had been excessive under the law because the maximum period of imprisonment available in the circumstances was three months.

However, she ruled that because Mr Wolffe had made no reference to a prison term in his discussions with Marshall, it would be unfair to include it in his sentence.

Mrs Justice Subair Williams also said that while repeat offenders could expect harsher fines and longer periods of disqualification, the offences must be for breaches of the same section of the law.

While Marshall had recent convictions for driving over the legal blood-alcohol limit and refusing a breath sample, she said in the present case he had admitted driving while impaired, which fell under a different section.

She said: “Notwithstanding the appellant’s previous convictions for similar offences such as refusal to provide a breath sample or his driving in excess of 80mg of alcohol in 100ml of blood, section 2(3) requires the court to only look at previous offences against the same section when imposing a penalty of imprisonment or a fine.”

As such, she said the maximum fine that could be induced by the judge was $1,500 and a three-year period of disqualification.

Mrs Justice Subair Williams cut the fine from $5,000 to $1,500 and reduced the duration of the period of disqualification from five years to three.

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