2000/27
6 pages
ROYAL COURT
(Samedi Division)
16th February, 2000.
Before: M.C. St.J. Birt, Esq., Deputy Bailiff, and
Jurats Le Ruez, and Allo.
The Attorney General
-v-
Neil Anthony Gracia
Magistrate's Court Appeal
Appeal against a total sentence of 2 weeks' imprisonment passed in the Magistrate's Court on 13th January, 2000, the said sentence to run consecutively to sentences imposed for earlier offences, following guilty pleas to the following counts:
2 counts of possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1961:
count 1: MDMA, on which count a sentence of 2 week's imprisonment was passed, to follow consecutively sentences imposed for earlier offences
count 2: cannabis, on which count no separate penalty was imposed.
On 24th April, 1998, the appellant was placed on probation for 2 years, with 140 hours' community service and a total fine of £350 , by the Royal Court, following guilty pleas to 1 count of conspiracy to pervert the course of justice, 1 count of driving without due care and attention and an admitted breach of a probation order made on 16 th June, 1997 in the Magistrate's Court.
On 14th May, 1998, the appellant was bound over for 12 months (concurrent with the probation order of 24th April, 1998) in the Magistrate's Court on a guilty plea to 2 counts of possession of cannabis.
On 1st October, 1999, the appellant was imprisoned for a total of 3 months in the Magistrate's Court, on a guilty plea to 1 count of possession of heroin and 1 count of false pretences, regarding a prescription for diazepam.
On 29th October, 1999, the appellant admitted in the Royal Court to a breach - by reason of the offences for which he was imprisoned on 1st October, 1999 - of the 24th April, 1998 probation order, which was discharged and a 6 month sentence substituted.
On 12th November, 1999, the appellant was imprisoned by the Magistrate's Court for 1 month on a guilty plea to 1 count of possession of heroin - which offence had been committed on 19th September, 1999 - the said sentence to run concurrently with the existing sentences.
On 13th January, 1999, the appellant was sentenced to 2 weeks imprisonment on a guilty plea to 2 counts of possession of controlled drugs (MDMA; cannabis) - which offences he had committed on 21st September, 1999 - the said sentence to follow consecutively the existing sentences.
Appeal allowed; sentence quashed; sentence concurrent with existing sentences substituted.
Advocate A.J. Belhomme on behalf of the Attorney General.
Advocate A.J.D. Winchester for the Appellant
JUDGMENT
THE DEPUTY BAILIFF: This is an appeal by Neil Anthony Gracia from a sentence imposed by the Magistrate on 13th January of this year, when for an offence of possession of the class A drug ecstasy, consisting of two tablets, he was sentenced to 2 weeks imprisonment, but it was ordered that this sentence of imprisonment should take effect consecutively to a sentence of imprisonment which Mr Gracia was already serving.
In order to understand the arguments in this case it is necessary briefly to set out the sequence of events.
On 24th April, 1998, the appellant appeared before the Royal Court for an offence, amongst others, of conspiring to pervert the course of justice and he was placed on probation for 2 years with an order for community service.
On 19th September, 1999, Gracia was found in possession of heroin at a public house and was arrested. Two days later on 21st September, 1999, he was found in possession of 582 milligrams of cannabis, and 2 ecstasy tablets at his home address.
On 1st October, 1999, he appeared before the Magistrates Court for an offence of importation of heroin, and an offence of obtaining by false pretences. These offences were committed, we understand, in about June, and he was sentenced to a total of 3 months imprisonment.
As a result of this conviction on 1st October, he was in breach of the probation order made in April, 1998, and accordingly he was brought back before the Royal Court on 29th October. On that occasion he was sentenced by the Royal Court, which revoked the probation order, and passed a sentence totalling 6 months imprisonment for the offence for which he had been placed on probation.
We should add that in relation to the offences committed on 21st September, the witness statements and the report of the official analyst had all been received by 17th October. However nothing further was done in relation to those charges at that stage.
On 4th November, Gracia was charged in relation to the offence which he had committed on 19th September, that of possession of heroin, and he appeared before the Magistrates Court on 12th November to be dealt with for that offence. On that occasion the Assistant Magistrate, Mr Trott, imposed a prison sentence of 1 month's imprisonment, but that was made concurrent with the sentence which he was already serving. For some reason, the offence committed on 21st September was not dealt with on that occasion and it was not drawn to the Court's attention.
It was not until the morning of 13th January, 2000, that the appellant was interviewed concerning the offences of being in possession of cannabis and ecstasy at his mother's home on 21st September. He immediately admitted the offences. He was taken before the Magistrates Court on the same day - indeed that very afternoon - and was dealt with as I have described at the beginning of this judgment. He was un-represented on that occasion.
Before turning to the submissions of counsel, the Court has to say that it is highly unsatisfactory that nothing happened in relation to these offences between the completion of the enquiries, which appears to have been on 17th October, and the decision to interview the appellant on 13th January; that is far too long for minor offences of this nature to be outstanding, and it has led to the results to which we will advert in a moment.
Mr Winchester has relied on three grounds in relation to this appeal. First, he contends that the sentence was wrong in principle, because the totality principle was not properly applied as the various offences which the appellant committed were dealt with piecemeal.
Secondly, he contends that the appellant should have had legal representation when he appeared before the Magistrate's Court, and thirdly, he contends that the Magistrate should have ordered a background report before imposing a prison sentence.
The Court will deal with the last two arguments first. In relation to the question of legal representation, the issue was dealt with by the Court in A.G -v- Ashford (5th December, 1994) Jersey Unreported, which was an appeal from the Magistrate's Court. On that occasion, in relation to the question of legal representation the Court said this:
"Furthermore, as Mr Speck has pointed out, the appellant was unrepresented; it is of course not a necessity that he should be; it is entirely up to each accused person to ask for assistance if he or she wants it. In a very serious case - and this was quite a serious case - the Court feels, of course, that it would be undesirable for a person not to be represented, but this is not such a case."
We have seen the transcript on this occasion, and the appellant did not ask for legal representation before the Magistrate, although it is suggested by counsel that he may have asked for it in the precincts of the Court. Be that as it may, we do not think that there is anything in that ground of appeal.
On the second ground, which is that there was no background report, we were referred to the case of Veloso -v- A.G. (18th March, 1996) Jersey Unreported, which was heard before this Court on appeal from the Magistrates Court, and on that occasion the Court quoted from another case, that of Da Rosa (23rd May, 1988) Jersey Unreported, and said this:
"It cannot be on every occasion that the Magistrates are required to obtain a background report before they sentence an accused person. That must be a matter for their discretion. The general rule which this Court has laid down, of course, is that it is the rule, or the practice in a case where an offender is likely to go to prison for the first time, or where he is a very young man. In this particular case, although your client has not actually been to prison or had a prison sentence, he has a longish record and he is not a young man; we do not think the Magistrate erred in not ordering a background report, Mr Habin".
In the present case, the appellant was already serving a sentence of imprisonment, imposed by the Royal Court, and a further sentence of imprisonment, albeit concurrent, imposed by the Magistrate. We do not think that the Magistrate erred in not obtaining a background report in those circumstances.
We turn now to the first ground. In this Mr Winchester referred us to the case of De Moulpied -v- A.G (14th November, 1994) Jersey Unreported, which was heard before this Court, and he referred us in particular to the following passage:
"Counsel for the appellant submits that all the charges laid against the appellant should have been co-ordinated and dealt with together. Counsel for the Crown replies that that is not the current practice in the Police Court and that it would be administratively difficult to achieve. In our judgement those are not sufficient reasons for failing to achieve a system which is fair to an accused person. Generally speaking it is undesirable that an accused, who has committed a series of offences, should be sentenced in respect of different offences on separate occasions. If sentencing does take place on separate occasions there is no opportunity for the sentencing Magistrate to obtain the whole picture of wrongdoing and against that background to impose the appropriate sentence. Mr Robinson, for the Crown, went on to submit that the real question for the Court was whether the system of dealing with different offences separately was one which caused prejudice to an accused person. We agree that that is the appropriate test and we consider that there is a risk of prejudice to an accused person where sentencing takes place on a piecemeal basis".
We are firmly of the view that the offences committed on 21st September, should have been dealt with by the Assistant Magistrate Mr Trott, on the 12th November, at the same time as he dealt with the offences of 19th September. That is, of course, not a criticism of the Assistant Magistrate, because the offence was not before him on that occasion; the fault lies with those presenting the case.
On that occasion Mr Trott passed a concurrent sentence in respect of the drug offences committed on 19th September. It is argued by Mr Winchester that, even if he had the additional offences before him, namely those committed on 21st September, he would probably have made any sentence concurrent as well.
We have to say that there was no obligation on Mr Trott to pass a concurrent sentence; he could - and indeed it may be argued that he should - have passed a sentence on that occasion which was consecutive. The offences, both of 19th September and 21st September, were wholly separate and bore no relation to the offences for which the Royal Court imposed a prison sentence because of the breach of probation.
Normal sentencing principles would have suggested that a consecutive sentence would have been appropriate, bearing in mind always the totality principle. But what is put to the Court by Mr Winchester is that the Assistant Magistrate did pass a concurrent sentence and that, because of faults in the prosecution system, the appellant has lost the opportunity of having the matter dealt with by way of concurrent sentence.
We think that, in the very unusual circumstances of this case, and bearing in mind the risk of a feeling of injustice because of faults in procedure, the right thing to do is to vary the sentence of two weeks, which was a perfectly proper sentence in itself, and make it concurrent with the sentences already being served.
Authorities
A.G.-v-Ashford (5th December, 1994) Jersey Unreported.
A.G.-v-Hendry (5th December, 1994) Jersey Unreported.
Pipon-v-A.G. (16th August, 1999) Jersey Unreported.
R-v-Ball (1951) 35 Cr. App. R. 164.
De Moulpied-v-A.G. (14th November, 1994) Jersey Unreported.
Veloso-v-A.G. (18th March, 1996) Jersey Unreported.
Sutton-v-A.G. (22nd April, 1996) Jersey Unreported.
A.G.-v-Romeril (22nd June, 1998) Jersey Unreported.
Thomas: Principles of Sentencing (2nd Ed'n): pp. 52-3;56-7.