2000/6
4 pages
ROYAL COURT (Superior Number)
(exercising the appellate jurisdiction conferred upon it by Article 22 of the
Court of Appeal (Jersey) Law, 1961)
20th January, 2000
Before F.C. Hamon, Esq., Deputy Bailiff and Jurats Myles, Rumfitt, Potter,
de Veulle, Le Brocq, Tibbo, Bullen, Le Breton, Georgelin.
Francis Charles Fitzsimmons
-v-
The Attorney General
Application for leave to appeal against a total sentence of 9 months' imprisonment , passed by the Inferior Number of the Royal Court on1st October, 1999, following a guilty plea to:
5 counts of obtaining money by false pretences:
count 1; on which count a sentence of 9 months' imprisonment was passed;
count 2: on which count a sentence of 3 months' imprisonment was passed;
count 3: on which count a sentence of 3 months' imprisonment was passed;
count 4: on which count a sentence of 3 months' imprisonment was passed;
count 6: on which count a sentence of 3 months' imprisonment was passed.
All sentences concurrent.
[Count 5 was abandoned by the Crown.]
Leave to appeal was refused by the Deputy Bailiff on 21st October, 1999; and on 3rd November, 1999, the appellant exercised his entitlement under Article 39 of the Court of Appeal (Jersey) Law, 1961, to renew his application to the plenary Court.
Advocate R. Tremoceiro for the Appellant;
Mrs. S. Sharpe, Crown Advocate.
JUDGMENT
THE DEPUTY BAILIFF: The Court below had reference made to it of the Court of Appeal case of Livingstone-Stewart (1987) 9 Cr. App.R. (S). 135, which is well rehearsed in this Court, and on the seven points raised in that case. They are set out at page 136:
"(i) a guilty plea.
(ii) the amount involved and the length of time over which the defalcations were persisted in, (bearing in mind that a large total might in fact represent a very small weekly amount).
(iii) the circumstances in which the offences began, (there was a plain difference between a legitimate claim which became false owing to a change of situation, and on the other hand a claim which is false from the very beginning).
(iv) the use to which the money was put (the provision of household necessities was more venial than spending money on unnecessary luxuries).
(v) previous character.
(vi) matters special to the offender, such as illness, disability, family difficulties, etc.
(vii) any voluntarily repayment of the amounts over-paid."
It is sometimes overlooked that the judgment goes on to say:
"Before sentencing the offender the Court should consider the following questions which were set out in Clarke (1982) 4 Cr.App.R. (S) 197 at 200: (i) is a custodial sentence really necessary? The fraud cases dealt with in the Crown Court (as already indicated) are likely to be relatively serious and a non-custodial sentence may often be inappropriate; (ii) if a custodial sentence is necessary, can the Court make a community service order as an equivalent to imprisonment, or can it suspend the whole sentence? It seems to us that a suspended sentence or (especially) a community service order may be an ideal form of punishment in many of these cases; (iii) if not, what is the shortest sentence the Court can properly impose?
If immediate imprisonment is necessary, a short term of up to about nine or 12 months will usually be sufficient in a contested case where the overpayment is less than, say, £10,000. As was stated in Clarke, a partly suspended sentence may well be appropriate where a short immediate sentence is insufficient."
Now on that reference to Livingstone-Stewart we would make two points. In the case of the Attorney General -v- Pagett (1984) JJ 57 CofA. At page 64, the Jersey Court of Appeal said this:
"It is apparent that there are important differences in the way sentencing is approached in Jersey, and the way it is dealt with on the mainland. We will mention three obvious points. First, in Jersey, it is the practice for the Crown to move for specific sentences. By long tradition it is the accepted rôle of Crown Counsel to give guidance and help on this matter, and to represent the public interest. There is nothing comparable in England. Secondly, the sentence in this case was arrived at by the learned Deputy Bailiff sitting with ten Jurats...."
I pause here to say that of course in this reference to the Court below, there were two Jurats.
"... to this extent the sentence reflects a much broader spectrum of judicial opinion than a sentence imposed by a single judge in England. Thirdly, Jersey has no system of parole for sentenced men. These, and many other features indicate that the systems have different traditions and different modalities. Over and beyond this is the point that the Royal Court sitting in Jersey will be aware of current attitudes here to sentencing, and will know in particular what sort of crimes are prevalent, and for what crimes it is desirable to retain a severe deterrent sentence."
Mr Tremoceiro has followed the seven Livingstone-Stewart guidelines.
We have a man who is clearly in serious ill-health. We have seen the medical prognosis, and the drugs which were prescribed for him. It is clear to all of us that his hypertension is serious. He was apparently trying to work himself back into employment. This is really no excuse, and is a blatant disregard of his responsibilities under the law, particularly as, every time he signed a certificate, he confirmed in writing that he had not worked during the preceding period.
He has no criminal record of any moment, and certainly nothing that shows a propensity to frauds of this kind. Clearly from what we have heard, the death of his mother, and his family problems have been of a very serious nature. His marriage may well have failed as a result of this case.
We would merely say that it is of no relevance to refer to cases such as Attorney General -v- Harris (27th March, 1997) Jersey Unreported, which turns on its particular merits. This Court has no doubt that what the appellant has suffered from this crime is punishment enough. We are going to give leave to appeal, and we substitute the period already served in prison for the 9 months which was imposed by the Court below. The compensation order, of course, will still stand.
Authorities
Livingstone-Stewart (1987) 9 Cr. App. R. (S) 135.
Attorney General -v- Blake (18th August, 1995) Jersey Unreported.
Attorney General -v- Pritchard (20th October, 1995) Jersey Unreported.
Attorney General -v- Warn (26th July, 1996) Jersey Unreported.
Attorney General -v- Harris (27th March, 1997) Jersey Unreported.
Attorney General -v- Godwin (30th October, 1998) Jersey Unreported.
Johnson -v- Attorney General (15th March, 1999) Jersey Unreported.
Clarkin and Pockett -v- Attorney General (1991) JLR 213 CofA.