Jersey Unreported Judgments

2000/52

3 pages

ROYAL COURT (Superior Number)

(exercising the appellate jurisdiction conferred upon it by Article 22 of the Court of Appeal (Jersey) Law, 1961).

 

24^th March, 2000

 

Before:  Sir Philip Bailhache, Bailiff and Jurats

Rumfitt, Potter, Quérée, Tibbo, Bullen,

Le Breton and Georgelin.

 

 

Kevin Patrick Owens

-v-

The Attorney General

 

 

Appeal against a total sentence of 2 years' imprisonment; £1,000 fine or 5 weeks' imprisonment in default of payment, passed by the Inferior Number of the Royal Court on 6^th January, 2000, following a guilty plea, entered on 26^th November, 1999, to:

 

First Indictment.

1 count of: grave and criminal assault (count 1), on which count sentence of 2 years' imprisonment was imposed.

 

Second Indictment.

2 counts of:              malicious damage (counts 1, 2), on each of which counts a fine of £500, or 5 weeks' imprisonment in default of payment; the default sentences to run concurrently with each other and with the sentence imposed on the count in the First Indictment.

 

Leave to appeal was granted by the Bailiff on 28^th February, 2000.

 

Advocate Mrs. S.A. Pearmain for the Appellant;

P. Matthews, Esq., Crown Advocate.

 

 

JUDGMENT

 

THE BAILIFF:  Mrs. Pearmain, for the appellant, has put this appeal very fairly to the Court.  She has not submitted that a sentence of 2 years' imprisonment for the grave and criminal assault to which the appellant pleaded guilty was in any way manifestly excessive.  This was a savage unprovoked beating of another man resulting in serious injuries and we think that counsel adopted entirely the right approach in relation to the sentence actually imposed by the Court below.

 

The appeal has been put to us on the basis that there might be an appearance of injustice in the sense that the appellant might have a legitimate grievance. The possible grievance arises from a letter which was sent by a Crown Advocate to the appellant's legal advisers prior to sentencing in the following terms:

 

"The Attorney General has considered the facts underlying the charge of grave and criminal assault.  His decision is that on a plea of guilty the Crown would move for a sentence of 15 months.  The usual principles of remission would of course apply."

 

It seems from the copies of this document which are available to us that the letter was sent, not only to the appellant's legal advisers, but also faxed directly to him at the prison.  We make no criticism of that procedure which was, no doubt, designed to convey the information more quickly to the appellant.  It did, however, mean that when he received the letter he did not immediately have available to him legal advice as to what the letter meant.

 

The Court has reached the conclusion that it is possible that the appellant placed a construction on that letter which led him to believe that the Crown's conclusions were in fact likely to lead to that sentence being imposed by the Court.

 

We were told by Mr. Matthews for the Crown that it is now the practice for the Law Officers' Department to advise in writing as to what the Crown's conclusions will be if a request is made to that effect.  If that is the practice and again we make no criticism of it, we think that it would be desirable for any letter of this kind to be sent only to Counsel    (on the assumption that the accused is legally advised), and to include a clear statement that the conclusions of the Crown are not binding upon the Court.

 

We have reached the conclusion that there might be a legitimate grievance on the part of the appellant and on that basis alone we propose to allow the appeal. We therefore quash the sentence imposed by the Inferior Number and we substitute for the sentence of 2 years' imprisonment a sentence of 18 months' imprisonment.

 

We are grateful to both counsel for their assistance.

 

Authorities

 

 

Current Sentencing Practice: C7-2A01: R -v- Ford (1980) 2 Cr.App.R.(S) 33.

AG -v- Smitton (29^th July, 1993) Jersey Unreported.

AG -v- Mundy (26^th April, 1996) Jersey Unreported.

AG -v- Mulligan (9^th October, 1998) Jersey Unreported.

AG -v- Gale (26^th November, 1999) Jersey Unreported.