Jersey Unreported Judgments

2002/13

COURT OF APPEAL

17^th January, 2002.

David Anthony Wylie

-v-

The Attorney General

Application for an extension of time within which to apply for leave to appeal and for leave to appeal against a total sentence of 4 years' imprisonment  passed on 6^th September, 2001, by the Superior Number of the Royal Court , to which the Appellant was remanded by the Inferior Number on 6^th July, 2001, following a guilty plea to:

The applications for an extension of time and for leave to appeal were placed directly before the plenary Court without first being considered by a Single Judge.

Advocate C.M .Fogarty for the Appellant.

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

JUDGMENT

HODGE JA:

1.        David Anthony Wylie ("The Applicant") was sentenced by the Superior Number of the Royal Court on 6^th September 2001 to (a) four years' imprisonment in respect of one count of having received, hidden or withheld jewellery to the value of £43,000 to the prejudice of Pearce Jewellers, King Street, St Helier and (b) fifteen months' imprisonment on one count of larceny.  The Royal Court, expressly on the ground of mercy, made the sentences concurrent, although the Applicant had committed the offences on different occasions about one month apart.

2.        The Appellant pleaded not guilty to the charge of larceny before the Magistrate's Court but changed his plea to guilty on indictment before the Royal Court where he also pleaded guilty to the charge of receiving stolen property.

3.        The offence of larceny was committed on 22 March, 2001, when the Applicant entered a beauty salon, "the Beauty Room" in St Helier and removed a cash box containing approximately £360 when the personnel in the salon were occupied with clients.  Two women in the salon ran after him and he gave the cash box and its contents back to them before continuing to run away.  He was later arrested on suspicion of the theft of the cash box.

4.        The offence of receiving stolen property was committed on 23 April, 2001, when he was arrested by police officers for the larceny offence while he was waiting to fly to Gatwick.  He had checked in for the flight under a false name and had checked in a bag under that name.  The bag contained a substantial amount of jewellery valued at about £43,000, which had been stolen from Pearce Jewellers.

5.        The offences were committed while the Applicant was subject to a twelve months' probation order for other offences including larceny and withholding stolen goods.  He has a long term problem of drug use and a poor employment record.  He was assessed as being at a high risk of re-offending.

6.        The Applicant has a bad criminal record, amounting to 48 previous convictions, of which 25 have been committed since 1996.  Of those 25, 18 are for theft and kindred offences and of the latter 6 are for handling stolen goods.

7.        The Applicant applied for leave to appeal and for extension of time for leave to appeal.  The Crown did not oppose the application and we grant it.

8.        Advocate Fogarty, who appeared on behalf of the Applicant, submitted that the sentence of four years on the count of receiving the stolen jewellery was manifestly excessive.  She advanced two principal contentions.  First, she argued that the Crown Advocate had failed to put relevant authorities before the sentencing court which pointed to a lower sentence.  Secondly, she submitted that the sentencing court had erred in failing expressly to afford the Applicant any or sufficient credit in respect of (1) his degree of involvement in the chain of criminal activity which began with the theft, there being no suggestion that the Applicant had been involved in any way in the theft of the jewellery and (2) his guilty plea.

9.        In relation to the first contention Advocate Fogarty referred us to among others the English cases of   R v Patel (1984) 6 Cr App R (S) 191 and R v Love and Others [1999] 1 Cr App R (S) 75.  She criticised the reliance which the Crown placed on cases which were briefly summarised in Whelan, arguing that the summaries did not disclose the principles of sentencing for the crime but simply listed the value of the stolen goods and the prison sentence imposed.  In particular, she criticised a passage in Whelan: 'Aspects of Sentencing in the Superior Courts of Jersey (1994):  p.75 where it is stated in relation to the charge of receiving stolen goods: "A more extensive review of the decisions in this area suggests a de facto band of 12 months - 4 years imprisonment, the value of the property concerned being a key (though not exclusive) determinant of sentence".  She invited this court to lay down guidelines for sentencing for this offence.   

10.      In relation to the second contention, Advocate Fogarty referred the Court to Fearon [1996] 2 Cr App R 25, in which a burglar, who was caught red-handed and who pleaded guilty was given credit for his plea by a reduction by three months of his two years' sentence of imprisonment and in which the Court of Appeal in England stated that a discount should be given for a guilty plea however strong the case against the accused may be.

11.      In response, Advocate O'Connell emphasised the Applicant's bad criminal record, his breach of the probation order, and the deception which he practised in checking in for the flight using a false name.  He argued that the sentencing court had erred in imposing concurrent sentences where the offences in question were distinct and suggested (without pressing the submission) that this court might wish to make the sentences consecutive, pointing out that the Royal Court did not have the full criminal record before it when sentencing the Applicant. 

12.      We do not consider that it is appropriate for us to lay down guidelines for sentencing for this offence.  We were not invited to do so by the Crown Advocate and we think that considerably more research would require to be presented to us before such a course could properly be undertaken.

13.      We do not think that it is appropriate to make the sentences for larceny and receiving stolen goods consecutive.  Not only did the Applicant disclose to the Court through the social inquiry report that his criminal record was not complete but also, and crucially, the Royal Court stated that they were tempering justice with mercy when making the sentences concurrent.  The sentencing court having taken the decision for that reason, we have decided not to interfere in that regard.

14.      The only issue therefore is whether the sentence for receiving and handling the stolen jewellery was manifestly excessive.

15.      Advocate O'Connell helpfully provided the court with a summary report of a decision of the Court of Appeal in England  in R v Webbe [2001] All ER (D) 27 (May) in which the Court gave guidance on certain factors to be taken into account in sentencing for handling dishonestly received stolen goods.  Unfortunately the full text of the judgment was not available and we were not able to study it in detail.  It is however persuasive authority that a court should take into account a wide range of considerations in addition to the value of the goods and suggested that in cases where the value of the goods did not exceed £100,000 sentences in the region between 12 months and four years' imprisonment were appropriate.

16.      In reliance on R v Webbe, Advocate Fogarty identified several features of the present case which she said pointed towards a lesser sentence.  Mr Wylie would have received only £400 for handling the goods and was actually paid only £100 before he was arrested.  There was no suggestion that he made a business of handling stolen goods on a regular basis or that he was the organiser behind the handling.  He was a drug addict who gained little benefit from the crime.  While he was guilty of the subterfuge in using a false name at the airport, there was no suggestion that he planned the subterfuge.  Nor was there any suggestion that he knew of the theft at the jewellers or had any part in that theft.

17.      We consider that the sentence of four years' imprisonment is in all the circumstances manifestly excessive.  While recognising the Applicant's bad criminal record and his breach of the probation order, and taking into account the value of the goods which he handled, we consider that a more appropriate period of imprisonment, before considering the guilty plea, would have been three years. 

18.      The Crown in addressing the sentencing court relied on the passage from Whelan which we have quoted.  This may have caused the court to put too much emphasis on the value of the goods (important although that is) at the expense of other relevant considerations. 

19.      We must also consider the guilty plea and the issue of mitigation.  In both its written conclusions and its submissions to the Royal Court in the sentencing proceedings the Crown emphasised that the Applicant had been caught red-handed and that any realistic mitigation was absent.  The sentencing court stated that the conclusions moved for by the Crown Advocate were absolutely right and, in relation to the handling charge, sentenced the Applicant on that basis.  It appears therefore that no discount was given for the guilty plea. 

20.      We consider that the sentencing court erred in so doing.  While the discount may only be a relatively small one when an accused is caught red-handed, a discount is nevertheless appropriate.  In this case we consider that a discount of six months is appropriate.

21.      We therefore allow the appeal and substitute a sentence of thirty months imprisonment. 

Authorities

R-v- Patel (1984) 6 Cr App R (S) 191.

R-v- Love and Others [1999] 1 Cr App R (S) 75.

Whelan: 'Aspects of Sentencing in the Superior Courts of Jersey (1994):  p.75.

Fearon [1996] 2 Cr App R 25.

R-v- Webbe [2001] All ER (D) 27 (May).

R-v-Reader & Ors (1988) 10 Cr. App. R. (S) 210.