Jersey Unreported Judgments

2001/213

COURT OF APPEAL

 

                                                               26^th October 2001

 

 

Peter Colin CHANNING

-v-

The Attorney General

 

Application for leave to appeal by Peter Colin CHANNING against conviction at a criminal assize on 11^th July, 2001, on:

12 counts of:	obtaining property by false pretences (counts 1, 2, 4-9, 11-14);
1 count of:	attempting to obtain property by false pretences (count 15).

[On the direction of the trial Judge, the Jury returned a verdict of not guilty on counts 3 and 10].

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

Application for leave to appeal by Peter Colin CHANNING against a total sentence of 21 months' imprisonment, passed on 17^th August, 2001, by the Inferior Number of the Royal Court to which the Appellant was remanded on 11^th July, 2001, the said sentence made up as follows:

Counts 1, 2, 4, 5, 6, 7, 8, 9, 11, 12:  21 months' imprisonment, concurrent, on each count.

Counts 13, 14, 15:   18 months' imprisonment, concurrent, on each count and concurrent with other sentences.

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

Advocate A.J.D. Winchester for the Appellant;

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

 

 

JUDGMENT

 

 

SMITH JA:

1.        In this case the applicant was convicted, having pleaded not guilty, on twelve counts of obtaining money by false pretences and one count of attempting to obtain money by false pretences.  He was sentenced to a total of twenty one months' imprisonment.  The applicant seeks leave to appeal against both conviction and sentence.  Advocate A.J.D. Winchester appeared for the applicant and Crown Advocate M.St.J. O'Connell for the Crown.  We are indebted to both of them for their helpful submissions.

Conviction

2.        The applicant was a director of a car hire company called St. Bernard's Garage and Hire Car Ltd, which traded as Holiday Autos.  Holiday Autos leased motor cars from other companies which retained ownership of them. Between October 1997 and about May 1998 advertisements appeared in the Jersey Evening Post in the name of Holiday Autos offering cars for sale.  Of the thirteen counts on which the applicant was convicted, ten involved the purchase of leased vehicles by members of the public and three related to Mini Mokes.  The latter had been the subject of a sale and lease back agreement with a venture capital company which became the owner of the vehicles.  Holiday Autos subsequently purported to sell, or attempted to sell, those vehicles to another company.  

3.        In relation to the conviction Mr. Winchester contended that the verdict of the jury was unreasonable and could not be supported on the evidence.  Intent to defraud is an essential element of each of the counts on which the applicant was convicted.  Mr. Winchester argued that on the evidence in the case the jury could not reasonably have come to the conclusion that it was satisfied beyond reasonable doubt that the applicant had the requisite intent.  In essence the applicant's case was that although he may have been involved in the transactions, he relied on a co-director, one Scott Dyer, to look after the financial affairs of the company and he assumed that Dyer would settle the entitlement of the true owners of the vehicles in due course.  If the jury had considered this to have been a reasonable possibility the applicant would have been entitled to have been acquitted. 

4.        In support of his argument, Mr. Winchester reminded us that the applicant had made no admission of intention to defraud.  The defence case at the trial was that the applicant was a naïve businessman with no head for finance.  This proposition found support in the evidence of both prosecution and defence witnesses.  Furthermore, there was evidence that it was common practice to sell leased cars first and then sort out the obligations to the true owners afterwards.  Therefore, Mr. Winchester argued, the mere fact that the applicant knew at the time of the purported sales that Holiday Autos did not own the cars was not indicative of intent to defraud. 

5.        For the Crown, Mr. O'Connell submitted that Mr. Winchester had been selective in his references to evidence of the applicant's involvement in the financial aspects of the business and he directed us to many passages in the transcript of the trial inconsistent with the applicant having been financially naïve. In addition, Mr. O'Connell drew our attention to portions of his cross examination of the applicant in the course of which parts of the records of the applicant's police interviews were put to him. 

6.        In our judgment, Mr. Winchester's argument on conviction failed to take into account, adequately, the fact that the jury had the opportunity of seeing and hearing the applicant giving his evidence.  True, there was no direct evidence of intent to defraud; but it was for the jury to decide whether they believed the applicant when he said that he did not know that the proceeds from the purported sales were not going to be used to meet Holiday Autos obligations to the true owners.  In making this assessment, they not only saw and heard the applicant answer the questions directed specifically to this issue, but also his answers to other questions, particularly those put to him by Mr. O'Connell during cross-examination.

7.        An assessment made by a jury is inevitably a complex one and it is, perhaps, dangerous for an appellate court, without the advantages enjoyed by the jury, to go into detail as to what, in particular, might have influenced the jury.  However, there are indications from the transcript of the trial that the applicant may not have cut a very impressive figure in the witness box.  On many occasions his answers appear uncertain and evasive.  In particular, the applicant's answers to questions from Mr. O'Connell, contrasting what he had told the police with what he said in the witness box, could have led the jury to conclude that he was lying to them.  The judgment as to whether the applicant was or was not lying was one for the jury.  Of course, even if they concluded that he was lying on a particular point, this did not necessarily mean that intent to defraud had been established.  But again, that was a matter for the jury. In our judgment, the jury was entitled to conclude on the evidence that it was satisfied of the applicant's intention to defraud in respect of each of the counts on which he was convicted.

Sentence

8.        The Royal Court imposed a total sentence of twenty one months' imprisonment.  However, it is not possible to perform a meaningful analysis of this sentence, nor is it possible to discern the process of reasoning which led the Royal Court substantially to increase the total of fifteen months' proposed in the Attorney General's conclusions.  The Judgment of the Royal Court does not disclose its starting point, nor the discount allowed for the mitigating factors in the case.  Moreover, in that part of the Judgment of the Royal Court rejecting the Crown's conclusions, the Deputy Bailiff referred to the Court having regard to other cases without indicating what those cases were. 

9.        In Rimmer and Ors.-v-AG (19^th July, 2001) Jersey Unreported; CofA this Court emphasised the requirement that in all sentencing the reasoning of the Royal Court should be fully set out.  In the present context this meant stating the starting point selected by the Royal Court and the discount allowed for mitigating factors.  It meant identifying the other cases taken into account and such cases should only have been taken into account after the Royal Court had afforded the applicant's Advocate an opportunity to comment on them.  Furthermore, it was essential not only that the Royal Court should clearly explain in its Judgment why it had decided to impose a sentence in excess of the Crown's conclusions, but also that the Royal Court indicate to the applicant's Advocate, at the appropriate stage, that it was considering that course of action and why, so as to afford an opportunity for representations before the decision was finally made. 

10.      At the sentencing hearing the Crown placed before the Royal Court a bundle of authorities.  All of them related to cases involving fraudulent conduct.  One of them, R-v-Barrick (1985) 7 Cr.App.(S) 142, was a decision of the English Court of Appeal setting out guidelines for sentencing in cases of theft in breach of trust by employees and professional persons - a potent aggravating factor absent from the present case.  In addition, many of the other authorities included in the bundle involved sentencing in cases involving breach of trust.  Barrick was not actually opened to the Royal Court, but reference was made to AG-v-Austin (12^th March, 1999) Jersey Unreported, which was a breach of trust case.  Neither Advocate drew the attention of the Royal Court to this irrelevant factor and it cannot be said with certainty that the other cases to which the Deputy Bailiff referred in his Judgment did not include cases of breach of trust.  It is unfortunate that the breach of trust cases, and Barrick in particular, were laid before the Royal Court and it is hoped that in the future only relevant guideline or other authorities will be placed before the Royal Court at the sentencing stage. 

11.      Furthermore, we do not consider that the Royal Court ought to have tested the appropriateness of the Attorney General's conclusions by hypothetically calculating their equivalent had the applicant pleaded guilty.  Sentencing is an art rather than a science and the assumption that a one third deduction would have automatically been made introduced a factor which was strictly speaking irrelevant to the difficult task being performed.

12.      In the circumstances we have described, we consider that the proper course is for us to assess what sentence ought properly to have been imposed on the applicant.  We bear in mind that although this is not a breach of trust case, ordinary people not engaged in commercial activities suffered as a result of the applicant's dishonesty.  Therefore, an immediate custodial sentence is essential.  We note that the Attorney General's conclusions were based on the assumption that the amount involved was £60,000, whereas the Royal Court calculated the sum to be £24,450 - a not insignificant reduction.

13.      In our judgment, the proper starting point in this case is fifteen months.  As the applicant contested the charges he is not entitled to the discount he would otherwise have received if he had pleaded guilty.  However, apart from this, he has what the Deputy Bailiff, when delivering the Judgment of the Royal Court on sentencing, described as "a powerful case in mitigation" including the absence of personal benefit, his good character for many years, the hardship to the applicant's mother caused by his imprisonment and an element of delay in the bringing of the case to trial.  Taking all the mitigating factors into account we deduct three months from the starting point of fifteen months so that we impose a total of twelve months' imprisonment, instead of the total of twenty one months' imprisonment imposed by the Royal Court.

14.      So, in summary, the effect of the above is that we refuse leave to appeal against conviction, but we grant leave to appeal against sentence and allow that appeal.  We substitute the following sentences: Counts1, 2, 4, 5, 6, 7, 8, 9, 11 and 12: twelve months' imprisonment, concurrently on each count; Counts 13, 14 and 15: nine months' imprisonment, concurrently on each count and concurrent with the other sentences.  That is a total of twelve months' imprisonment.  The disqualification from being a company director for five years stands undisturbed.                       

 

Authorities

AG -v- Channing (17^th August 2001) Jersey Unreported; [2001/184]

Rimmer and Ors. -v- AG (19^th July 2001) Jersey Unreported; [2001/148].

AG -v- Cooper (6^th February 1998) Jersey Unreported; [1998/24].

AG -v- Cairns (15^th January 1999) Jersey Unreported; [1999/6].

Kirkland -v- AG (24^th September 2001) Jersey Unreported CofA; [2001/200].

Bell -v- AG (19^th July 2001) Jersey Unreported CofA; [2001/151].

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

Ruiz Torija -v- Spain (1994) 19 EHRR 553.

AG -v- Austin (12^th March 1999) Jersey Unreported; [1999/48].