Jersey Unreported Judgments

2001/6

6 pages

ROYAL COURT (Superior Number)

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

 

10^th January, 2001.

 

Before:

M.C. St. J. Birt, Esq., Deputy Bailiff and Jurats Rumfitt, Potter, Le Brocq, Tibbo, Le Breton, and Allo.

 

Candia Mildred COOPER

-v-

The Attorney General

 

Application for leave to appeal against a total sentence of 4 months' imprisonment, passed by the Inferior Number of the Royal Court on 17^th November, 2000, following a guilty plea to 4 counts of larceny:

                  Count 1: on which count a sentence of 4 months' imprisonment was passed;

                  Count 2: on which count a sentence of 4 months' imprisonment, concurrent, was passed;

                  Count 5: on which count a sentence of 3 months' imprisonment, concurrent, was passed; and

                  Count 6: on which count a sentence of 3 months' imprisonment, concurrent, was passed;.

 

The Appellant was released on bail by the Inferior Number on 17^th November, conditional upon her lodging within 7 days thereof a notice of application for leave to appeal against the sentence.

[On 11^th October, 2000, the accused pleaded not guilty to counts 3,4, and 7 of the Indictment, which pleas the Crown accepted.]

 

Application for leave to appeal placed directly before the plenary Court, without first being considered by a Single Judge.

 

 

 

JUDGMENT

 

THE DEPUTY BAILIFF:

 

1.            This is an application by Candia Cooper for leave to appeal against aggregate sentences of four months' imprisonment imposed by the Inferior Number on 17^th November, 2000, in respect of four counts of larceny.  She has been on bail pending the appeal.

 

2.            The facts can be shortly stated.  In March, 1998, the appellant became chairperson of the Jersey Strikers Youth Bowling Club.  The club was established in the early part of 1997 to provide an organised and competitive environment for children who enjoy 10 pin bowling.  It has a membership of some 40 - 50 youngsters who attend at Jersey Bowl every Saturday morning to compete and to receive coaching.

 

3.            A committee of adults was formed to manage the affairs and finances of the club and as we have said, the appellant became the chairperson in March, 1998.  From that time she had control of the chequebook and the paying-in book of the club's bank account.

 

4.            The four counts arose as follows:  In relation to count 1, football cards were sold to the patrons of Jersey Bowl.  This is a game of chance where one pays £1 to choose a football club listed on a card.  When all clubs have been selected a foil window is scratched open to reveal the winner and the person whose selection matches the name in the window is entitled to a small cash prize with the profits from each card going toward club funds.  The cash generated from this exercise was either collected by the appellant or given to her by other club members who had collected it and it should have been banked by her.  However, between March and May, 1998, she took a sum of £428 and used it for her own benefit rather than paying it in to the bank.

 

5.            Count 2 arose out of the fact that each Saturday morning the children would pay a subscription of £1 to the club - this was later increased to £1.50 per child.  On average there might have been 40 to 50 children attending the club and paying their individual subscriptions in this way.  Again the appellant was supposed to bank the cash from the children on the Monday or Tuesday after the Saturday club meeting.  However in the same period she kept £420.50 of club funds in this way and did not bank it.

 

6.            Counts 5 and 6 arose simply out of the fact that she drew two cheques from the account of the club and used these for her own purposes.

 

7.            The total amount involved in the four counts was some £1,428 and the offences took place over a four month period.

 

8.            The Crown moved for sentences totalling six months' imprisonment but the Court reduced the total sentence to one of four months.  The reduction was because of the effect that a sentence of imprisonment would have on her two children, aged 12 and 10 for whom she is the principal carer.

 

9.            Miss Fitz has taken a number of points in support of the application and we would like to take this opportunity of paying tribute to the skill with which she has put forward her points.

 

10.        The first appeared at one stage to be of general importance.  We think that, in the end, she did not press it fully as a matter of general importance but we would nevertheless wish to deal with it.  She referred the Court to certain passages in Archbold (2000 Ed'n) concerning the duty of prosecuting counsel in England.  These passages are to be found at paras 4-272 and B-35 and the key passages are as follows:

 

"It is counsel's duty to outline the facts upon which the Crown intends to rely.  It is highly undesirable for prosecuting counsel in so doing to use unnecessarily emotive language which on any view can only excite sympathy for the victim or prejudice against the accused in the minds of the jury."  That comment of course applied to a Crown counsel's opening in a contested case.

 

11.        She cited another passage as follows:

 

"Prosecuting counsel should not regard himself as appearing for a party.  He should lay before the court fairly and impartially the whole of the facts which comprise the case for the prosecution and should assist the court on all matters of law applicable to the case."

 

12.        Finally she referred to a third passage:

 

"In relation to sentence, prosecuting counsel should not attempt by advocacy to influence the court with regard to sentence."

 

13.        She went on to argue that Crown Advocate O'Connell in this case had infringed these guidelines in that the language which he had used was at times emotive and went well beyond what was necessary, impartially to present the facts of the offences to the Court.

 

14.        She had a number of criticisms which we do not propose to recite in detail.  She said that he had mentioned matters which were not strictly necessary and were unduly prejudicial.  He had summarised the various interviews of the appellant in language as follows:  "About as awkward and unco-operative with the police as it is possible to imagine.  She fudged and flannelled, ducked and dived and changed her story so often that the only conclusion the Crown can draw is that she is a practised liar who deployed her full repertoire of skills in this regard throughout the investigation.  The Crown is quite unable to submit that she has displayed any degree of co-operation at all, save for the guilty pleas."

 

15.        She criticised the language in which he referred to the fact that the money had been taken ultimately from children and also the fact that he said that the accused had shown no remorse, rather she had expressed regret no doubt for being caught; and there were one or two other matters.

 

16.        In our judgment great caution has to be exercised in referring to the duties of prosecuting counsel in England in considering sentencing matters.  This is because the system in Jersey is quite different.  In England the prosecution are completely neutral when it comes to sentencing and play no part.  In Jersey, on the other hand, the Attorney General, usually nowadays appearing through a Crown Advocate, is duty bound to recommend a particular sentence to the Court.  In doing so he sets out any mitigating and aggravating features and is entitled to make comment on the nature of the case in order to set the scene for his conclusions.  These comments may very well include some characterisation or description of the defendant's conduct and of the defendant and his or her attitude towards the offences.

 

17.        The Crown Advocate, on behalf of the Attorney General, is however fulfilling a quasi-judicial role.  It is incumbent upon him to be measured in his language.  Most importantly, there is a heavy duty upon him to be both fair and accurate.  He must satisfy himself that he can justify any description or assertion which he makes and that it is a fair reflection of the case.  However, within these bounds he is free to comment on the case in such manner as he thinks fit to assist in developing his conclusions.

 

18.        On balance we do not think that anything Mr O'Connell said in this case went beyond the bounds of what was permissible.  Even if they did, that would not, of itself, be a valid ground of appeal.  We have an  adversarial system; it is always open to defence counsel to take issue with something said by the Crown and the Court can then consider the respective arguments.

 

19.        Furthermore, the Court consists of experienced members and can be expected to ignore emotive language and concentrate on the essential facts and the real issues.  It is only if there is evidence that the Court has been led into error as to the facts, because of what has been said by the Crown, that a valid ground of appeal may arise.  There is no such evidence in this case.  For these reasons we dismiss Miss Fitz's arguments in relation to the nature of the Crown summary.

 

20.        However she had additional points.  In particular she placed emphasis upon the question of delay.  In relation to that the Inferior Number said this:

 

"First it is said that there has been a long delay in bringing the case to a conclusion.  This is undoubtedly true, but having looked carefully at the circumstances in which the delay has arisen we are not impressed by this argument because we consider that the defendant was in large part herself responsible for such delay as has occurred."

 

21.        We have had the benefit of a detailed analysis of a timetable of events prepared by DC Milburn.  Although that timetable was before the Inferior Number we are informed that no detailed analysis of it took place.  That analysis having been undertaken before this Court,  Mr O'Connell was forced to concede that none of the delay prior to indictment could be laid at the appellant's door, whereas the Royal Court had considered that it could.  We emphasise that we have concentrated on the delay prior to indictment.  On indictment the appellant pleaded not guilty and the matter was then put off for trial.  It was only a very short time before the trial date that she eventually pleaded guilty.  That delay lies entirely at her own door.

 

22.        It follows that the basis upon which the Royal Court approached the question of delay has now been shown to be erroneous and there has been very substantial delay.  The appellant was first interviewed in August, 1998.  She was not charged until August, 1999.  She was not indicted until April, 2000.  We have been taken through the timetable but there are a number of periods of delay which are simply not explained.

 

23.        We must emphasise that it is to be expected that offences of fraud will take time to investigate.  It is not open to a defendant, who, after all, knows the true facts, to be unco-operative, make the police carry out difficult and complex investigations and then say that, because of the inevitable delay, he should receive a lesser sentence.  The Court will be astute not to allow deductions in such cases.  But it is incumbent upon the prosecution to proceed as speedily as is reasonably practicable.  We are not satisfied that that has occurred in this case.  We think that there are periods of unexplained delay when in effect not much was happening.

 

24.        We confirm the general policy of this Court which is that offences of breach of trust, even for comparatively small amounts, will attract prison sentences.  But having regard to the fact that the Royal Court erroneously placed blame for the delay on the appellant; on the fact that it is now nearly 2½ years since the appellant was first interviewed; and that since November she has had a prison sentence hanging over her; and having regard to all the other mitigation such as the nature of the offence, the comparatively limited amount and, in particular, the fact that she is the carer of two young children, we have just - and I emphasise just - felt able to deal with this matter in a different way.

 

25.        Stand up, please.  Accordingly we give leave to appeal and we treat this as the appeal.  We will quash the prison sentence and we will order you to be placed on probation for 12 months on condition that you undertake 120 hours' community service within that period.  You can count yourself fortunate.

 

 

 

 

Authorities.

 

 

A.G. -v- Altham (26^th January, 1996) Jersey Unreported.

 

A.G. -v- Apperley (7^th February, 1997) Jersey Unreported.

 

A.G. -v- Roberts (1^st May, 1998) Jersey Unreported.

 

A.G. -v- Hamilton, Moody and Streets (3^rd June, 1999) Jersey Unreported.

 

A.G. -v- Horgan (20^th December, 1996) Jersey Unreported.

 

A.G. -v- Horn (22^nd January, 1999) Jersey Unreported.

 

A.G. -v- McMeiken (27^th July, 1994) Jersey Unreported.

 

A.G. -v- Blake (18^th August, 1995) Jersey Unreported.

 

Archbold (2000 Ed'n): paras 4-272, B-35.