Court of Appeal
29 September 1999
Before: R C Southwell, QC, (President);
The Hon M J Beloff, QC, and J P C Sumption, QC
Paul Martin GILL
V
AG
Application for leave to appeal against a total sentence of 4 years imprisonment, passed on 3 June 1999 by the Superior Number of the Royal Court, [1999.098] to which the appellant was remanded by the Inferior Number on 23 April 1999, following a guilty plea to:
1 count of robbery, on which count a sentence of 4 years imprisonment was passed; and
1 count of larceny, on which count a sentence of 2 weeks imprisonment, concurrent, was passed
Leave to appeal was refused by the Bailiff on 23 June 1999 and on 25 June 1999 the appellant exercised his entitlement to renew the application to the plenary Court.
Advocate A J D Winchester for the Appellant
T J Le Cocq, Crown Advocate
JUDGMENT
THE PRESIDENT: On Friday 11 December 1998 Mr Paul Gill went into Stampers Supermarket, First Tower, St. Helier. He placed a bottle of brandy in a bag he had brought with him. He went to the till, and put down two packets of cigarettes which he had taken from the shelf. He grabbed the 18 year old cashier tightly by the shirt collar with his left hand, told the cashier to open the till, pulled out of his pocket a steak knife with a 4½ inch serrated blade and a sharp pointed end, and with his right hand held the knife across the left side of the cashier's neck (though not touching the skin). He then said to the cashier: "If you don't open the till, I'll kill you". The cashier in genuine fear for his life told Gill that the till could not be opened without the key. Gill (having, it is agreed, put the knife back in his pocket) then punched the cashier on the left side of the face with his right fist; the blow was of fairly moderate force but it caused the cashier's lip to bleed.
The supermarket assistant manager at this point called the police.
The cashier then told Gill that the till could be opened if the cashier pretended to put through a transaction. Gill released his grip: The cashier opened the till. Gill demanded "the twenties". The cashier handed over 3 £20 notes and 3 £1 notes which Gill took. Gill left the supermarket, evading the assistant manager's attempt to stop him.
Gill went to a public house, entered by the front door, and left by the back door. He was followed. He was seen to throw the knife into some bushes, but the knife was later retrieved. He was arrested by the police about 10 minutes after the incident began with the stolen money, the cigarettes and the brandy still on him. During interview and in the Magistrates Court Gill maintained his innocence, on the basis of a trumped up story that he was getting money back owed to him by the cashier.
Eventually he pleaded guilty before the Inferior Number on 23 April 1999 to two counts, one of robbery from the cashier of £63 and two packets of cigarettes, and the second of larceny of the bottle of brandy.
On 27 May 1999 a social enquiry report by the Probation and Aftercare Service was produced in which it was recorded that Gill was still maintaining his story about getting back money owed to him by the cashier.
On 3 June 1999 Gill was sentenced by the Superior Number to 4 years imprisonment on the count of robbery, and to 14 days imprisonment on the count of larceny, to run concurrently.
Leave to appeal against the sentence of 4 years imprisonment was refused by a single Judge of this Court on 23 June 1999. Gill has renewed his application to the plenary Court of Appeal.
In their conclusions before the Superior Number the Crown submitted that a sentence of 4½ years imprisonment, having regard to the range of sentences between 1½ and 5½ years, would be appropriate. The Royal Court took account of these mitigating factors:
(1)The guilty plea. It must, however, be noted that Gill had no real alternative but to plead guilty, given that the incident was seen by several witnesses and he was followed from the scene until arrested soon after by the police.
(2)The absence of any previous conviction involving violence.
(3)The remorse which Gill has expressed in letters to the cashier and to the manager and staff of the supermarket dated 18 May 1999.
Mr. Gill is 42 years old. He has a serious addiction to alcohol. This is an aggravating, and not a mitigating, factor.
Before this Court Advocate Winchester appeared for Mr. Gill and Crown Advocate Le Cocq for the Crown. We are indebted to them both for their helpful submissions.
Mr. Winchester submitted that the sentence of 4 years imprisonment was manifestly excessive, and that the Royal Court had given insufficient weight to the mitigating factors. He drew attention to further mitigating factors, as follows:
(4)He said that the robbery was not premeditated, and was plainly done on the spur of the moment, in a supermarket in which Gill regularly shopped and knew the manager and the other staff, including the cashier, well.
(5)A relatively small amount of money was involved.
(6)The incident was over in a short space of time. The knife was soon put back in Gill's pocket where it remained. The blow to the cashier's face was not a strong one. He suggested in effect that Gill's use of the knife was merely demonstrative and that Gill never intended to use it to harm the cashier.
(7)Mr. Gill has a long history of alcohol addiction and abuse, involving at one stage admission to a psychiatric ward. On arrival at HM Prison La Moye he had to undergo a detoxification procedure. He was suffering from depression or anxiety symptoms at the time of the offence, and the drugs he was then taking were not very effective. He has some symptoms of social phobia. Mr. Winchester added that the Royal Court had not read the relevant psychiatric report.
Mr. Winchester submitted that a sentence of 3 years imprisonment, as in the case of Stevenson v AG (15th June, 1999) Jersey Unreported CofA ("Stevenson"), would be appropriate.
The starting point for this Court is that the robbery in this case was a particularly serious one. A dangerous knife was put at the throat of the young cashier and he was placed in fear of his life or of serious injury. Whether the robbery was premeditated or not, and whether it was committed under the influence of alcohol or not, are questions of little significance, in the light of the simple fact that the violence committed in the course of the robbery involved putting the young cashier in such fear.
No community can tolerate violent robberies of this kind, and any person who commits such a violent robbery in Jersey, whatever may be the circumstances of the robber, must expect to receive severe punishment by a long prison sentence. Turning to the matters relied on by Mr. Winchester,
(1)We have already indicated that any discount for the guilty plea will be relatively small in the circumstances of this robbery.
(2)It is true that this is Gill’s first conviction for an offence involving violence.
(3)The remorse expressed by Gill is relevant. But it is to be observed that it took Gill from 11 December 1998 until 18 May 1999 to write the letters already mentioned.
(4)We do not consider that in the circumstances of this case the question whether the robbery was premeditated or not, a matter not clearly established at the hearing below, has any real relevance for the sentencing process.
(5)That the sum of money involved was small was fortuitous. If there had been more money in the till Mr Gill would presumably have taken it.
(6)It is true that the incident took only a short time. But that is true of many robberies. Much more relevant is the degree of violence and the degree of fear to which the victim has been subjected. This Court considers that the cashier was bound to assume that Gill might use the knife to kill or to harm the cashier, since that is what Gill threatened.
(7)It is important to take due account of the psychological, psychiatric and other evidence concerning Mr. Gill's mental condition. This Court has before it and has considered fully the following:
(a)a report by Mr. Ian Berry, consultant clinical psychologist, dated 17 May 1999, which was before the Royal Court;
(b)another report by Mr. Berry dated 25 August 1999 for the purposes of this application for leave;
(c)a report by Dr. G. W. Blackwood, consultant psychiatrist, dated 2 June 1999, which both counsel had on 3 June 1999, but which was not read by the Royal Court;
(d)a further report by Dr. Blackwood, dated 7 September 1999 for the purposes of this application; and
(e)the Probation Service Report by Lisa Lister dated 27 May 1999.
The conclusions which we draw from these reports are the following:
(i)There is no indication of any serious mental disturbance.
(ii)The primary cause of any problems from which Mr. Gill has suffered has been his excessive consumption of alcohol. His personality to some extent has predisposed him to addiction. But he is capable, when determined to do so, to tackle his addiction and reduce his rate of consumption.
(iii)He has some symptoms of anxiety or panic, but may perhaps exaggerate the effect of these.
(iv)While he says that he has some degree of social phobia, when he was watched carefully on the ward he showed no signs of any such phobic behaviour.
(v)He is not straightforward when questioned about his problems, and becomes defensive and irritable.
(vi)Despite having pleaded guilty on 23 April 1999, and having accepted the prosecution's statement of the facts of the case, in May 1999 (see the Probation Report of 27 May 1999) Mr. Gill was still trying to pretend to himself that what he had done in the robbery and the larceny was in some way justified.
In conclusion, we consider that there is in truth nothing in the psychological and other evidence (including the reports which were not before the Royal Court) which weighs in his favour as mitigating factors. As we have already said, in such an offence of violence as this one, addiction to alcohol and committing the offence under the influence of alcohol are aggravating factors.
The reality is that Mr. Gill at the age of 42 is at a watershed of his life. Either he can return after his imprisonment to a life of alcohol addiction which will probably cause further serious problems in the community and his early death. Or he can seek to gain control of his way of life, and to put the addiction behind him, a course which will be hard for him, but much more rewarding.
Mr. Winchester and Mr. Le Cocq both sought to put this case in the context of earlier authorities. HM Attorney-General -v- Whiteley (29th June, 1998) Jersey Unreported ("Whiteley") was a similar kind of robbery at knife point, in that case of drugs from a pharmacy. The defendant was sentenced to 4 years’ imprisonment. Whiteley does not assist Mr. Gill as regards the contention that his sentence to 4 years’ imprisonment was manifestly excessive.
The case of Stevenson, on which Mr. Winchester much relied, involved a robbery of a garage attendant in circumstances which involved a substantial degree of fear. But the Stevenson case has to be distinguished from the present case having regard to the degree of violence in this case. The violent seizing and holding of the cashier's shirt, the holding of a knife to the cashier's throat coupled with the threat to kill him, and the blow to the cashier's face, separately and together show that the present case is clearly a more serious case of violent robbery than Stevenson. That Stevenson pleaded not guilty does not alter that vital difference between the two cases. Mr. Gill, contrary to his counsel’s contention, could have no legitimate sense of grievance about the difference between Gill’s sentence and that of Stevenson, having regard to the difference in the facts of the two cases.
We must, once again, emphasise a point which is not properly appreciated by many appellants or applicants for leave before this Court. It is important to look at previous cases so as to see the range of sentences which the Court has decided to be appropriate for a particular type of offence. But it is not appropriate or helpful to take a single previous case and to try to argue on the basis of that case what the sentence in the later case ought to be, not least because it is simply not possible to know all the circumstances and considerations which influenced the Court in the earlier case in reaching its decision. We adopt, but do not repeat, what was said by this Court in AG -v- McMahon (30th November, 1992) Jersey Unreported CofA at p.3, and in AG -v- Wood (15th February, 1994) Jersey Unreported CofA at pages 3 & 4.
Mr. Winchester has most effectively said all that could be said on behalf of Mr. Gill. But in the end we come to the firm conclusion that the sentence of 4 years’ imprisonment was the right sentence and was not an excessive sentence. Indeed, if he had been sentenced to 5 years’ imprisonment, it is doubtful whether leave to appeal would have been given.
Accordingly this Court refuses leave to appeal.
Before leaving this case we add these general observations. In cases of violence, whether of assault or robbery or rape or other forms of violence, it is necessary that the punishment ordered by the Court should have an element of deterrence, not to deter the offender because it is too late to do that, but
(1)to deter others who may be tempted to engage in similar violence, and to remind them that if they do so they will similarly face long sentences of imprisonment; and
(2)to show to the community as a whole that violence of this kind is not to be tolerated and will never be tolerated by the Courts of Jersey.
Authorities
AG -v- Whiteley (18th June, 1998) Jersey Unreported.
AG -v- Stevenson (2nd December, 1998) Jersey Unreported. [1998.244]
Whelan: "Aspects of Sentencing in the Superior Courts of Jersey" : pp.74-5.
Ibid: Noter-Up: May 1994-1995: pp. 29-30.
Stevenson -v- AG (15th June, 1999) Jersey Unreported CofA. [1999.109]
MacMahon -v- AG (30th November, 1992) Jersey Unreported CofA.
Wood -v- AG (15th February, 1994) Jersey Unreported CofA.