Jersey Unreported Judgments

2001/200

COURT OF APPEAL

(Superior Number)

 

(exercising the appellate jurisdiction conferred upon it by

Article 22 of the Court of Appeal (Jersey) Law, 1961).

24^th September, 2001

 

 

Robert Kirkland,

-v-

The Attorney General

 

 

Application of Robert Kirkland for leave to appeal against a sentence of 9 months' imprisonment, passed on 6^th August, 2001, by the Inferior Number of the Royal Court, following a guilty plea to:

1 count of:

conspiracy to defraud (count 3 of Indictment laid against the appellant and 3 other co-accused).

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

 

 

Advocate N.J. Chapman for R. Kirkland.

P. Matthews, Esq., Crown Advocate.

 

 

JUDGMENT

 

THE DEPUTY BAILIFF:

1.         This is an application by Robert Kirkland, the applicant, for leave to appeal against a sentence of nine months' imprisonment imposed on him by the Inferior Number of the Royal Court on 6^th August, 2000, on one count of conspiracy to defraud.

2.        The facts can be shortly stated.  The applicant was employed by BG Romeril & Co as a sales assistant in the plumbing and heating department.  Over the course of about a year between 1^st January, 2000, and 12^th January, 2001, the applicant conspired with a self-employed plumber, Jason Hébert, to defraud the applicant's employer.  The fraud was simple.  The applicant supplied Hébert with plumbing and heating equipment from Romerils stock with a cost value to Romerils of £4,900.  The sales were not put through Romerils' books.  The applicant admits to receiving some £1,500 from Hébert whereas Hébert asserts that he paid the applicant between £3,000 and £4,000.  No Newton hearing took place to resolve that issue and we therefore proceed on the basis that the benefit to the applicant was some £1,500.  The fraud involved a number of transactions over the twelve month period and the figures referred to are therefore aggregate figures.

3.        Because the applicant has raised an argument on disparity we must mention briefly the co-accused who appeared on the same indictment.  Patrick Buckley was a salesman in the bathrooms department of Romerils.  He faced two counts: count 1 was larceny as a servant.  Over a three year period he stole goods belonging to Romerils with a cost value of £18,800.  For the most part he sold these to customers at reduced prices and pocketed the proceeds.  There were some 66 sales involving 58 customers and the sale of bathroom equipment to a further co-accused, Ian White, who was charged with receiving that equipment.  Buckley also kept some stolen property at his home.  The total cash received by Buckley on count 1 was approximately £20,000.  Count 2 charged Buckley and Hébert with conspiring to defraud Romerils.  This involved the sale by Buckley to Hébert of stock bathroom equipment valued at £3,150 for which Hébert paid him cash equivalent to about half the trade price.

4.        In summary Buckley sold goods worth some £21,950 over a three year period and pocketed the proceeds.  The applicant sold £4,900 worth of goods over a twelve month period and pocketed the proceeds.  Hébert acquired goods worth some £8,050 over a twelve month period for which he paid Buckley or the applicant, as the case may be, a much reduced price and he profited from the difference.

5.        On 12^th January, 2001, following a surveillance operation the applicant and Hébert were arrested.  Hébert made immediate admissions and indeed pointed the police in the direction of Buckley.  The applicant initially denied any involvement but when presented with Hébert's admissions he admitted his part.

6.        At the hearing before the Inferior Number the Crown moved for aggregate sentences as follows: Buckley 21 months' imprisonment; the applicant 12 months' imprisonment; Hébert 15 months' imprisonment; and White, the receiver, community service of 120 hours.

7.        The Inferior Number imposed sentences as follows: Buckley 18 months' imprisonment; the applicant 9 months' imprisonment; Hébert 210 hours' community service; and White 120 hours' community service.

8.        Mr. Chapman, on behalf of the applicant, has made a number of submissions in support of the applicant's case.  For convenience we will take them in a somewhat different order to that in which he made them.  His first submission was that the Inferior Number did not give sufficient reasons for concluding that there were no exceptional circumstances in his case so as to allow for a non-custodial sentence to be imposed.  Furthermore, he submitted that the Inferior Number did not in its judgment deal in sufficient detail with the various factors listed in the leading case of R-v-Barrick (1985) 7 Cr.App.R.(S) 142.  These two failures had, he said, given rise to a sense of grievance on the part of the applicant.  He referred us to a passage from the judgment of the Court of Appeal in the recent case of Rimmer & Ors-v-AG (19^th July, 2001) Jersey Unreported CofA where the Court said at paragraph 49:

 "The imminent coming into force of the Human Rights (Jersey) Law 2000 leads us to remind the Royal Court that in all sentencing the reasoning of the Royal Court needs to be set out fully.  The defendant is entitled to full reasons, and full reasons are needed by the Court of Appeal when considering sentencing appeals and applications for leave."

9.        But the level of reasoning required depends upon the context.  In Ruiz Torija-v-Spain (1994) 19 EHRR 553, the European Court of Human Rights said this at paragraph 29:

"The Court reiterates that Article 6(1) obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument.  The extent to which this duty to give reasons applies may vary according to the nature of the decision."

10.      In our judgment, sentencing at first instance, does not require a lengthy judgment dealing with every point of mitigation made by the defendant's counsel.  The Court simply needs to make clear the general grounds for its decision.  In this case the Inferior Number began its judgment by quoting the principle laid down in AG-v-Picot (29^th May, 1990) Jersey Unreported, namely that persons convicted of offences of dishonesty involving a breach of trust should expect a custodial sentence other than in exceptional circumstances.  The Court then went on to conclude in relation to the applicant that the Court had to impose a custodial sentence.  It is clear by necessary implication that the Inferior Number concluded that there were no exceptional circumstances because it had referred to the test which it was applying at the beginning of its judgment.

11.      Mr. Chapman did not, before the Inferior Number, articulate the exact grounds relied upon as constituting exceptional circumstances with the precision used in his submission to this Court today.  In our view the Inferior Number's reasoning was sufficient.  Similarly in relation to the Barrick factors.  There was no need for the Court to go through each one of these in its judgment.  Some were, however, alluded to in the judgment as being grounds for distinguishing the applicant from Buckley.  Thus the Inferior Number referred to the lower degree of trust vested in the applicant; the shorter period of offending, and the lower amount of money.  In summary we think that the reasons contained in the judgment of the Inferior Number were sufficient for the purposes of sentencing.

12.      The second submission of Mr. Chapman is essentially this: the low level of trust held by the applicant coupled with the fact that he had used the money to support his two daughters amounted to exceptional circumstances so as to justify a non-custodial sentence.  Even if this were not the case these two factors coupled with all the other powerful mitigation available to the applicant should have enabled the Inferior Number to impose a non-custodial sentence as an act of mercy; failing which should have led it to impose a lesser period of imprisonment.

13.      It is one of the tragedies of cases like this that there is almost invariably very powerful mitigation. We cannot put it better than it was put in Barrick itself at p.145 when the court said this:

"He (meaning the defendant) will usually, as in this case, be a person of hitherto impeccable character.  It is practically certain ... that he will never offend again and, in the nature of things, he will never again in his life be able to secure similar employment with all that that means in the shape of disgrace for himself and hardship for himself and also his family."

14.      Inevitably therefore factors such as these factors cannot by themselves be said to be exceptional because, as the court says in Barrick, they appear in most cases  The Court has to look for something more if it is to be exceptional.  But it is not right to search for factors which in isolation may amount to exceptional circumstances.  In deciding on sentence a court looks at all the circumstances to see whether, taken in their totality, they can be said to be exceptional.

15.      We have considered carefully Mr. Chapman's submissions on this point but we do not think that there are exceptional circumstances in this case.  Taking first the level of trust which he relies upon it was undoubtedly lower than that of Buckley.  But the applicant was entrusted to work unsupervised; the offences only took place because of the position of trust in which he was placed and the fact that he therefore could take these goods without it being spotted because there was no supervision.  The level of trust was not so low as to be exceptional.

16.      Nor is the fact that the money was used to support the applicant's daughters an exceptional matter.  In reality the money was used towards the applicant's general living expenses which included the maintenance of his daughters.  Maintenance of children cannot be said to be an exceptional factor.  What can be said and which we fully accept is that there was not in this case present the aggravating factor of the money being spent on high living or luxuries.

17.      Mr. Chapman went on to raise the question of the correct interpretation of the case of AG-v-Picot (29^th May, 1990) Jersey Unreported.  In particular he referred us to the passage in the judgment where the Court said this:

"I think it is fair to point out that Prisk was in a managerial position unlike Weston who held a relatively lowly position, and therefore what you have invited us to do Mr. Solicitor is to express a view as to whether in the lower reaches of offences and in the light of the case of R-v-Hurren (1990) Cr.App.R.(S) 60 to which you referred us whether we would feel that any right thinking member of the public - in this case perhaps we would equate him with a man on the St. Ouen's omnibus - would conclude that an offence (in the case of Hurren causing £650 worth of wanton damage) when viewed in its proper context was so serious as to make a non-custodial sentence unjustified.  We think that we would be prepared in appropriate cases to adopt that limited degree of flexibility at the lower end of the scale and to that extent and to that extent only we would depart slightly from our established and perhaps now fixed principles of sentencing."

18.      We believe that the correct position to be drawn from that case and the Court's general sentencing practice is this.  Where a case is at the lower end of the scale, whether because of the degree of trust; the amount taken; the period of offending; or any other relevant circumstance of the offence, the Court may impose a non-custodial sentence.  It is not a case of finding exceptional circumstances; that procedure is to be maintained for offences of such seriousness as would otherwise require custodial sentences.  It is more that the seriousness of the offending in these cases, coupled with the available mitigation, does not require a custodial sentence.  But in this case the offending lasted over twelve months; the degree of trust whilst not at the highest end of the scale was not insignificant; and the amount involved was some £4,900.  We think that the Inferior Number was entitled to conclude that such offending, even when taken with the mitigation available, required a custodial sentence.

19.      Mr. Chapman also raised an argument on disparity.  In relation to Buckley we think that the difference was adequately reflected by the difference of nine months.  We have considered carefully the alleged disparity with Hébert where the amount involved was greater and where the sentence imposed was one of community service.  Had we been sitting ourselves as a Court of first instance we might not necessarily have passed exactly the same sentences; but we are sitting as a Court of Appeal.  The fact is that Hébert did not commit a breach of trust.  The offences only occurred because of the applicant's breach of trust.  We do not think that there is a disparity such as to give rise to a justifiable sense of grievance and therefore amount to a valid ground of appeal.

20.      We have considered next whether, taken in the round, and taking account of all the mitigating factors ably put forward by Mr. Chapman, we should impose a non-custodial sentence as an act of mercy.  But we think that that is to misunderstand the rôle of a Court of Appeal.  Acts of mercy are for the sentencing court, not for a Court of Appeal.

21.      Finally, we have considered whether to reduce the period of imprisonment.  Mr. Chapman listed in his written contentions many points of mitigation and we have considered all of them. To name but some of them, this is a case where the appellant was hitherto of very good character; he had no previous convictions; he has an excellent employment record, including 25 years for one employer; it is clear that he is remorseful; he has pleaded guilty and the background report makes it clear that there is a low likelihood of re-offending.  But as we have said earlier it is the tragedy of cases like this that matters such as these are so often present.

22.      We have, as we say, carefully considered these points but a Court of Appeal can only interfere when a sentence is manifestly excessive.  It is not deciding on the sentence that it would have passed in the first place.  We do not think that a sentence of nine months in this case can be said to be manifestly excessive and therefore we dismiss the application for leave.  We also order, Mr. Chapman, that Article 35 (4)(b) of the Court of Appeal (Jersey) Law, 1961  should be disapplied.  In other words we think it was perfectly reasonable for your client to bring this application and therefore there is no question of his losing any time by so doing.

 

 

Authorities

AG-v-Picot (29^th May, 1990) Jersey Unreported; [1990/74].

AG-v-Warn (26^th July, 1996) Jersey Unreported; [1996/140].

Rimmer & Ors-v-AG (19^th July, 2001) Jersey Unreported CofA [2001/148].

Thomas: Current Sentencing Practice: para. A9-4B01.

Ruiz Torija-v-Spain (1994) 19 EHRR 553: paras 29 & 30.

Weston-v-R (1980) 2 Cr.App.R.(S) 391.

R-v-Barrick (1985) 7 Cr.App.R.(S) 142.

AG-v-Allen & Ors. (16^th February, 1996) Jersey Unreported.

Clark (1998) Cr.App.R. 137.