An actuary who was found guilty of driving while using a hand-held device has lost her appeal against conviction in the Supreme Court.But Chief Justice Ian Kawaley ruled yesterday that the sentence given to Catherine Farnsworth for listening to an iPod while riding her motorcycle on Front Street on January 5 was too harsh.Farnsworth was given seven demerit points — the maximum possible — for the offence by Senior Magistrate Archibald Warner.Mr Justice Kawaley upheld the appeal of her sentence and reduced the number of points to five, the minimum.“No explanation appears on the face of the record as to why the maximum seven demerit points for a first offence were awarded,” he wrote in his judgement.“[The appellant's lawyer] pointed out that there were no aggravating features in a case where there was no evidence that the appellant was either distracted or stopped for the quality of her driving.“Counsel argued that this aspect of the sentence was excessive. I agree.”Farnsworth, 30, who was not present for the judgement, claimed in her appeal that her tiny bright pink iPod was a hands-free, rather than hand-held, device as it only needed to be touched to be operated.Her lawyer Lauren Sadler-Best argued her client was “not in fact using” the MP3 player, though she was listening to music on it through a set of headphones.“There is no evidence that she did hold it at the time or that she needed to,” said the attorney.The Chief Justice dismissed that claim, concluding: “The use of hand-held devices of any nature while driving is strictly prohibited by regulation 44 of the Motor Car (Construction, Equipment and Use) Regulations, even where the devices are not being handled whilst the driving is taking place.”He said it was impossible to find fault with Mr Warner's decision to convict Farnsworth, so had to uphold the conviction.But he noted that in other Commonwealth jurisdictions, Farnsworth may not have been guilty of an offence.In Australia, for example, iPods are not prohibited. In British Columbia and Ontario, hand-held devices can be used if not held in the hand, if not obstructing the driver's vision and if sound is emitted through the speakers of the vehicle.The Chief Justice said: “This comparative analysis demonstrates that Bermuda's blanket prohibition on the use of both mobile phones and audio devices whilst driving, even in what might be described as 'hand-free mode', casts a far wider prohibitive net than any of the jurisdictions surveyed.“But this in no way undermines the analytical approach to the Bermuda statutory decisions adopted by the learned Senior Magistrate in the present case.”The judge said the defendant's not guilty plea and appeal had “led to a clarification of the law”.He added: “The use of audio devices, such as the iPod involved in the present case, do not yet appear to be prohibited at all in Australia or in the United Kingdom and a hands-free mode use of electronic devices appears to be permitted in Canada.“Is the Bermudian approach too restrictive of personal freedom or a proportionate response to objectively identifiable public safety concerns?“This question does not arise in the present appeal. It might arise in a constitutional complaint that the legislation unduly impairs the freedom to receive information and ideas under section 9 of the Constitution.”Ms Sadler-Best said she was disappointed with the ruling but glad for the clarification of law and reduced sentence.“Of course we would have hoped for a different outcome but we are grateful for the clarification that this gives to the issue,” she said. “I don't think this necessarily prevents someone else from challenging the provision. It might be in the public's best interests if some further clarification is given.”Farnsworth stood trial at Magistrates' Court in March, when the court heard she was not speeding, did not appear to be distracted and was not stopped due to the quality of her driving.Mr Warner fined her $500, in addition to imposing the demerit points.Useful website: www.bermudalaws.bm.