Jersey Unreported Judgments

2001/133

ROYAL COURT

(Superior Number)

exercising the appellate jurisdiction conferred upon it by Article 22 of the

Court of Appeal (Jersey)  Law, 1961.

 

12^th June 2001

 

 

Andrew Scott Page

-v-

The Attorney General

 

Application for leave to appeal against a total sentence of 3 years' and 1 month's imprisonment passed on 2^nd March, 2001, by the Inferior Number of the Royal Court to which the appellant was remanded on 29^th January, 2001, following a guilty plea to:

22 counts of:	obtaining property by false pretences (counts 1-7, 10-15, 18-24, 26, 27)
3 counts of:	fraud (counts 8, 9, 17)
1 count of:	obtaining a meal by false pretences (count 16)
1 count of:	obtaining goods and money by false pretences (count 25)
2 counts of:	larceny (counts 28, 29)
1 count of:	attempting to pervert the course of justice (count 30)

[On 29^th January, 2001, the Crown accepted not guilty pleas to counts 1, 8, 19, 21-24].

Admitted breach of a 1 year Probation Order, made by the Royal Court on 17^th March, 2000, (see Jersey Unreported Judgment of that date) following guilty pleas to:

 

2 counts of larceny (counts 1, 2);

10 counts of obtaining property by false pretences (counts 3, 4, 6, 7, 9, 11, 12, 13, 15, 16);

4 counts of aiding/assisting/participating in obtaining property by false pretences (counts 5, 8, 10, 14).

On which counts the Court imposed the following sentences:

 

Count 2:	18 months' imprisonment
Count 3:	18 months' imprisonment
Count 4:	18 months' imprisonment
Count 5:	18 months' imprisonment
Count 6:	18 months' imprisonment
Count 7:	18 months' imprisonment
Count 9:	18 months' imprisonment
Count 10:	18 months' imprisonment
Count 11:	18 months' imprisonment
Count 12:	18 months' imprisonment
Count 13:	18 months' imprisonment
Count 14:	18 months' imprisonment
Count 15:	18 months' imprisonment
Count 16:	18 months' imprisonment
Count 17:	18 months' imprisonment
Count 18:	18 months' imprisonment
Count 20:	18 months' imprisonment
Count 25:	18 months' imprisonment
Count 26:	18 months' imprisonment
Count 27:	18 months' imprisonment
Count 28:	15 months' imprisonment
Count 29:	15 months' imprisonment
Count 30:	3 months' imprisonment

 

All sentences to run concurrently, except for sentence passed on count 30, which is to follow consecutively.

TOTAL SENTENCE:  21 months' youth detention.

 

Breach of Probation Order:  Probation Order discharged.

Counts 1, 2:  15 months' imprisonment.

Counts 3-16:  16 months' imprisonment, concurrent with each other.

TOTAL SENTENCE: 16 months' imprisonment, consecutive to sentence passed on present indictment.

TOTAL SENTENCE:  3 years' and 1 month's imprisonment.

 

The application for leave to appeal placed directly before the plenary Court, without first being submitted to a Single Judge for consideration and determination.        

 

 

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

M. St.J. O'Connell Esq., Crown Advocate.

 

 

 

JUDGMENT

 

 

THE DEPUTY BAILIFF:

1.        On 17^th March, 2000, the appellant appeared before this Court for sentence on 10 counts of obtaining property by false pretences; 4 of aiding and abetting in obtaining property by false pretences and 2 of illegal entry and larceny.  In essence, he and a co-accused came to Jersey, stole two wallets and used the credit cards for a spree of offences, obtaining goods to the value of some £4,000 in a day.

2.        The appellant had a previous record which included numerous offences of a similar nature.  Despite this, the Court placed the appellant on probation.  It is clear that the Court was influenced by the fact that the offences occurred in September, 1998 and since then the appellant had served a sentence of 2½ years' imprisonment in the United Kingdom for similar offences.  He had been arrested at the prison gate on release in December, 1999 and returned to Jersey.  The Court took a merciful view and placed him on probation for 12 months.

3.        Despite this chance, over a two month period starting in April, 2000, which was less than one month after the probation order was imposed, the appellant committed a further spree of offences.  Again he stole credit cards and used them to obtain goods and services to a value of some £2,614.  He pleaded guilty to a total of 20 counts of obtaining property by false pretences or fraud; two counts of larceny; and one of attempting to pervert the course of justice.

4.        On 2^nd March, 2001, he appeared before the Inferior Number.  He was sentenced for the new offences to a total of 21 months, and to the offences for which he had been placed on probation, he was sentenced to a total of 16 months made up of 16 months' concurrent on all the various counts of obtaining by false pretences or fraud, and 15 months on the two counts of illegal entry and larceny.  The period of 16 months and the period of 21 months were made consecutive making a total of 37 months in all.

5.        He now applies for leave to appeal against sentence.  The appeal is brought on a short and narrow point and it relates to the time spent on remand prior to the imposition of the probation order on 17^th March, 2000.  The appellant was in fact on remand from 16^th December, 1999 to 17^th March, 2000 i.e. some three months and the odd day or two.  That is the equivalent of a sentence, we are told, of some four months and 17 days.  This was in fact pointed out by the Royal Court in its judgment of 17^th March when it imposed the probation order.

6.        The law is clear that where a person spends time on remand before a probation order is made, that time does not count towards any prison sentence which may subsequently be imposed in the event of a breach of the probation order.  However, the Court may take the time spent on remand into account when deciding on the correct prison sentence which it wishes to impose in respect of the breach.  The position was authoritatively settled in the case of Graham-v-AG (1^st October, 1996) Jersey Unreported [1996/177] when the Court said, having considered various English authorities, the following:

"The period spent on remand is a relevant consideration but the extent to which allowance should be made is a matter for the court's discretion given the individual circumstances of the case in question."

7.        On this occasion the Crown when moving its conclusions for the breach of probation specifically made an allowance for the time spent on remand on that first occasion.  Originally, in March, 2000 it moved for a sentence of 18 months for the various offences.  This time it moved for a sentence of 16 months.   It expressly stated that it was doing so on the basis that the appellant had spent in the region of two months on remand before being placed on probation.  In fact, as we have said, the appellant had spent three months on remand, not two months.  It is clear to us therefore that the conclusions moved by the Crown were based upon a mistaken view of the facts.  It should be pointed out that Advocate Wilson who appeared for the appellant at the time did attempt to correct the position because he said in mitigation that the appellant had spent three months on remand.

8.        Furthermore, when the Bailiff, who was presiding, queried the position the Crown Advocate made it clear that the appellant had spent the equivalent of a sentence of some 4½ months on remand but he repeated that he was not sure of the actual time spent on remand.  When passing sentence the Court said that the Crown Advocate's conclusions gave proper weight to the time spent on remand in custody.

9.        Mrs. Pearmain's submission is simple: she says that the conclusions were based on an erroneous figure and that the Court had simply adopted this.  This Court should therefore correct that error.

10.      Mr. O'Connell, on the other hand, says that even if there were an error on his part, it was clarified in the interchange with the Bailiff to which we have referred; and in any event the Court has a discretion as to the time to be allowed in respect of periods spent on remand; the conclusions of the Court below were reasonable and this Court should not interfere for such a small difference.

11.      We accept that in general a Court of Appeal - which is what we are in this case - will not tinker with a sentence in a minor way.  But here the sentence imposed was expressly based upon the Crown's conclusions which stated erroneously that two months had been spent on remand.  There was an error of fact underlying the conclusions.  We think that to leave this uncorrected would lead to a justifiable sense of grievance.  In the circumstances we think it should be corrected.  We therefore grant leave to appeal and we allow the appeal to the extent of substituting a sentence of 15 months on all those counts where a sentence of 16 months was imposed.  In other words we allow an extra one month to reflect the difference between the erroneous period of two months allowed by the Crown and the correct period of three months which was in fact served on remand.  Mrs. Pearmain shall receive her legal aid costs.

Authorities

A.G.-v-Page (2^nd March, 2001) Jersey Unreported: [2001/56].

A.G.-v-Page (17^th March, 2000) Jersey Unreported: [2000/49].

Graham-v-A.G. (1^st October, 1996) Jersey Unreported [1996/177].

R.-v-MacKenzie (1988) 10 Cr,.App.R.(S) 299.

R.-v-Wiltshire (1992) 13 Cr.App.R.(S) 642.

R.-v-Needham (1989) 11 Cr.App.R.(S) 506.