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Jail sentence for 2018 DUI offence set aside on appeal

Landmark case: attorney Philip Perinchief successfully argued that the delay in legal proceedings infringed on his client’s constitutional rights

A driver who was jailed last month for a motoring offence he committed almost seven years ago has had the sentence suspended.

The ruling by the Court of Appeal was described as possibly “a landmark case” by Larry Benjamin’s attorney because it provided clarity on guidelines to breaches of the law on constitutional rights and subsequent sentencing in criminal law.

Benjamin was arrested after a crash on October 19, 2018. He was charged with causing grievous bodily harm when driving while impaired.

However, he did not appear in Magistrates’ Court until September 19, 2023 — almost five years after the crash.

Attorney Philip Perinchief, representing Benjamin, made a stay application in February 2024 on the grounds that his client’s constitutional right to a trial within a reasonable amount of time had been infringed.

That application was rejected by Assistant Justice Kenlyn Swan-Taylor in March this year.

The judge accepted that Benjamin’s rights had been infringed because of “unreasonable delay”, but ruled nonetheless that the defendant was still “capable of receiving a fair trial”.

Benjamin, 66, finally appeared before Chief Justice Larry Mussenden at the end of March, when he pleaded guilty.

On June 3, he was sentenced to an immediate nine-month jail term and banned from driving all vehicles for four years.

The former bus driver served three weeks behind bars before the sentence was set aside by the Court of Appeal.

Instead, Benjamin was given a 12-month jail sentence suspended for two years. He is still banned from driving all vehicles for four years.

The Court of Appeal handed down the reasons for its decisions at a hearing yesterday.

Justice of Appeal Ian Kawaley noted that although the Chief Justice’s “central analysis was obviously sound” when sentencing Benjamin, prosecutors had not sought a custodial sentence.

He wrote: “In my judgment … it will invariably be surprising at worst and/or disappointing at best if an immediate custodial sentence is imposed when the prosecution are not seeking such a sentence.”

He also noted that there was no case law in the Bermuda courts where sentences had been passed after such a lengthy delay.

Referring to the delay as “the constellation of unusual factors”, Mr Justice Kawaley wrote: “There were no local precedents for an accused person being convicted and sentenced after having established that his constitutional right to a trial within a reasonable time had been infringed.”

Mr Justice Kawaley added: “In this case, the delay between the date of offence and sentence was approximately 6½ years, none of which can fairly be attributed to the appellant’s fault.

“The appellant’s offence was one of strict liability, with no element of even carelessness required to prove the charge.

“In this case, the appellant pleaded guilty promptly after the conclusion of his constitutional application.”

Mr Justice Kawaley added that Benjamin had served almost three weeks in jail “which is often referred to in the jargon of sentencing judges as ‘a short sharp shock’.”

He concluded: “For these reasons I was satisfied that for the purposes of Section 70K of the Criminal Code, it was appropriate in the circumstances to fully suspend the sentence of nine months imprisonment.”

Mr Justice Kawaley’s decision was supported by Court of Appeal judges Narinder Hargun and Shade Subair-Williams.

Last night, Mr Perinchief said: “The Larry Benjamin case, when considered from start to finish, may well be a landmark case in Bermuda, not only on the proper guidelines in these DUI cases, but also in the area of breaches of constitutional rights law, and the consequences of same on subsequent sentencing in criminal law.

“Given what was before it, at very short notice I must add, the court in my view has under the circumstances rendered a careful and measured analysis of this case.

“Moreover, and importantly, the court has gratefully answered the appellant’s and my pleas for guidance and clarity in the appropriate approach and application of the key sentencing principles in this area of the law.”

He added: “The immediate beneficiaries of such clarity and guidance, the investigative arm, the prosecution, the lower ranks of the judiciary, the administration of justice generally, and the public at large, should also thankful as it strengthens, in my considered view, justice as a whole.”

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