Page v The Attorney General

[2003]JRC054

ROYAL COURT (Samedi Division) 18th March 2003 Before: F.C. Hamon, Esq., O.B.E., Commissioner and Jurats Le Brocq and Tibbo. Andrew Scott Page -v- The Attorney General Magistrate’s Court Appeal Appeal against a sentence of 9 months’ imprisonment passed on 18th February 2003, in the Magistrate’s Court, following a guilty plea to 1 count of theft, the said sentence to follow consecutively a sentence of 16 months’ imprisonment, passed on 5th December, 2002 in the Royal Court. Appeal dismissed. Advocate G.S. Robinson for the Appellant; Mrs. S. Sharpe, Crown Advocate.

JUDGMENT THE COMMISSIONER: 1. The appellant was sentenced on the 18th February to a prison sentence of 9 months for having criminally stolen £150 from Stampers at St Aubin. The appellant’s general grounds of appeal have been expanded before us today by Advocate Robinson.

2. The appellant pleaded guilty to a charge of larceny which occurred in our view under unusual circumstances. The appellant was already in prison having received a 16 months’ sentence for receiving a quantity of stolen money. He is certainly no stranger to prison. The Magistrate referred to his record as “terrible” and that is not an overstatement. His criminal record for a man of 23 includes 85 previous offences for theft.

3. He had been in prison for some 36 months when he returned to Jersey with his girlfriend. After being at liberty for 2 to 3 months he was arrested for the receiving offence. He was due to be released in May and had been granted an unescorted day release. He told the Probation Officer that on the unescorted day he had gone to see his girlfriend, who told him somewhat obliquely that she had been having an affair with a prison officer. This prison officer has since left the service.

4. The appellant attempted to confirm her story and a work colleague apparently did confirm it. The appellant took the news badly. He had, according to what he told the Probation Officer, been intending to get engaged that day. Instead of returning to prison as he had undertaken to do, he visited various night clubs trying to find the person in question. He consumed a quantity of alcohol and took 4 diazepam tablets given to him by a friend to calm him down.

5. The next morning which was a Sunday he realised what he had done by failing to return to the prison, and he drank more alcohol and took 4 more diazepam tablets. When he entered the supermarket he apparently, on impulse, stole the money from the open till and ran off. He has written a letter of apology to the cashier, who was not unnaturally extremely frightened by the incident. That letter was, according to the answer given to us by Advocate Robinson, only written a few days ago.

6. In her address, Advocate Robinson says that the guilty plea is not mentioned either by defence counsel or by the Magistrate, and she cites to us Wylie –v- AG (17th January, 2002) Jersey Unreported; [2002/13] where at paragraph 19 and 20 of that Court of Appeal case, the Court said this: “We must also consider the guilty plea and the issue of mitigation. In both its written conclusions and its submissions to the Royal Court in the sentencing proceedings the Crown emphasised that the Applicant had been caught red-handed and that any realistic mitigation was absent. The sentencing court stated that the conclusions moved for by the Crown Advocate were absolutely right and, in relation to the handling charge, sentenced the Applicant on that basis. It appears therefore that no discount was given for the guilty plea. We consider that the sentencing court erred in so doing. While the discount may only be a relatively small one when an accused is caught red-handed, a discount is nevertheless appropriate. In this case we consider that a discount of six months is appropriate.” 7. It would have been difficult for the appellant to have denied the offence whether or not he was caught red-handed. He was clearly seen on CCTV and was well known to the authorities. The fact that the plea of guilty is not mentioned at trial is not as significant as it at first appears.

8. On the 14th January when the Relief Magistrate, Mr Sowden asked if the appellant wished to reserve his plea, he said he wished to plead guilty. That was repeated before the Magistrate on the 28th January, and again before the Magistrate on 4th February. It is inconceivable to us that the Magistrate had not taken that matter into account.

9. Advocate Fogarty who appeared before the Magistrate specifically referred to the great detail at paragraph 8 of the background report. The Magistrate had clearly considered a 12 months’ sentence, but as he said, “having heard your own counsel and considered the reports I do not think it is necessary to give you as long as that”.

10. Our duties on appeal are clear. We will not interfere with the sentence imposed by the Magistrate in the exercise of his discretion, unless it was wrong in principle or manifestly excessive. We might not have reached the same conclusion as the Magistrate but we cannot say in honesty that his sentence is either wrong or excessive.

11. As to the 42 days which was also imposed on the appellant, this was for loss of remission and was imposed by the Board of Visitors and does not concern us today. We are very grateful to Advocate Robinson but the appeal is dismissed. Authorities Wylie –v- AG (17th January 2002) Jersey Unreported; [2002/13]. AG –v- Wylie (6th September, 2001) Jersey Unreported; [2001/191].