Jersey Unreported Judgments

2002/217A

ROYAL COURT

(Samedi Division)

 

13^th November, 2002

 

 

Neil Anthony Davey

-v-

The Attorney General

Magistrate's Court Appeal.

 

Appeal against total sentence of 9 months' imprisonment, passed on 17^th October, 2002, following a guilty plea to 5 counts of larceny, 2 counts of aiding and abetting larceny and 1 count of possession of cannabis.

Appeal dismissed.

 

 

Advocate R. Tremoceiro, for the appellant.

C.M.M. Yates, Esq., Crown Advocate.

 

 

 

JUDGMENT

 

 

THE DEPUTY BAILIFF:

1.        On the 17^th October, the appellant appeared before the Assistant Magistrate in the Magistrate's Court.  He faced 5 counts of larceny, 2 of aiding and assisting larceny and 1 count of possession of cannabis resin.  The Assistant Magistrate imposed concurrent sentences of 9 months' imprisonment against which the appellant now appeals. 

2.        We can state the factual background quite shortly.  All the counts of larceny and assisting larceny are shoplifting offences.  The first was on the 9^th July, and the second, on the 22^nd July, 2002.  The possession of cannabis was also on that date.  On the 14^th August, the appellant appeared before the Magistrate's Court on these 3 charges and was bailed.  Subsequently, between the 15^th August and 7^th September he committed a further 5 shoplifting offences.  He was eventually remanded in custody on the 9^th September.  The total amount involved in the shoplifting offences was some £687 worth of goods.

3.        The appellant has an appalling record.  He has committed over 30 offences of larceny and similar offences of dishonesty despite being only 25.  He also has 4 previous convictions for possession of controlled drugs.  He is a heroin addict and the offences were committed in order to repay a debt to his dealer.

4.        In the court below his advocate submitted that this was a suitable occasion to give him a last chance because he was motivated to conquer his addiction.  The advocate therefore asked for a non-custodial sentence but the Magistrate considered that he had no alternative to prison. 

5.        Advocate Tremoceiro who appears for the appellant today realistically accepts that, in the light of the defendant's previous record of offending, he cannot say that the sentence imposed was wrong in principle.  He therefore concentrates his fire on saying that although a prison sentence was not wrong in principle, the 9 months sentence was manifestly excessive.

6.        His main point raises a question as to whether the Assistant Magistrate allowed sufficient for the fact that the appellant had given the name of his drug supplier to whom he owed the money and had acknowledged that in open court.  That arose in this way.  During the police interview the appellant was asked the name of the person to whom he owed money and he gave the name as one Anthony Kiedeis.  He was asked additionally whether he would give a statement of complaint against Mr Kiedeis and he said that he would.

7.        At the end of the police interview the police officer said this to the appellant:

 .. "I want to thank you on the purpose of the tape for your honesty today whatever's motivated you to be honest with us it's very very much appreciated by the Police it saves our detection time down hugely and hopefully you'll get some credit for that, thank you very much".

8.        When passing sentence the Assistant Magistrate, having reviewed the appellant's record and the previous opportunities which he had been given by the courts, said this:

"My obligation, and you must understand this clearly, is to protect the public from a man who is a persistent offender and in respect of whom I have no option but to impose a custodial sentence.  You will be given discount for all your guilty pleas and such assistance - although I doubt the importance of that assistance - that has been given to the police.  My starting point in thinking of a sentence today was one of 12 months' imprisonment but having regard to all the factors that I have mentioned I will give a discount which results in a custodial sentence of 9 months' concurrent on each charge".

9.        In essence Advocate Tremoceiro makes two submissions.  First, he says that the Assistant Magistrate did not allow enough for co-operation in view of the comments of the police officer to which we have referred.  We are in no doubt that the comments of the police officer were directed towards the appellant's co-operation in relation to these larceny offences which were being investigated.  It was not a reference to his naming of the supplier.  We will return at the end of this judgment as to whether the Assistant Magistrate allowed enough for that co-operation.

10.      Secondly, Advocate Tremoceiro submits that the Assistant Magistrate was wrong to give little or no discount for the appellant having named his supplier.  The reason, it is clear, is that the police have been unable to verify the information.  This was referred to in the mitigation before the Magistrate when Advocate Messervy, who then appeared, stated that he had been in touch with the police and they had informed him that they had been unable to trace the individual named. 

11.      Advocate Tremoceiro further says that the police did not follow up the information given at interview until a few days before sentencing when they took a statement which has been produced to us.  That statement was, we are told, only taken at the specific request of the appellant's advocate.  There were therefore only a matter of two or three days for the police to investigate instead of 1 month or so.  Advocate Tremoceiro says that this was not the fault of the appellant; he gave information which he believed to be genuine and he should not be penalised for any failure on the part of the police to follow the matter up promptly.

12.      The question of the way in which the courts should deal with the giving of assistance has been the subject of previous decisions in the England and in this jurisdiction.  Advocate Tremoceiro referred first to the case of R.-v-Sivan & Ors (1988) 87 Cr.App.R.407, where the Court said that:

"In determining to what extent such credit should be given for the information provided a trial judge should inter alia, pay regard to (1) the nature and effect of the information imparted; i.e. did it relate to trivial or serious offences?  Was the information successful in bringing to justice persons who otherwise would not have been brought to justice?  (2) The degree of assistance provided, i.e. was the defendant prepared to give evidence if necessary to bring home the information which he had provided and to assist in the conviction of other criminals?  (3) The degree of risk to which the defendant by his actions exposed himself and his family".

13.      The question of the value of the information given has been the subject of further consideration.  A particularly useful passage is to be found in the case of R-v-A and B [1999] 1 Cr.App.R (S)52 at 56 where Lord Bingham C.J. said this:

"It has been the long standing practice of the courts to recognise by a further discount of sentence the help given, and expected to be given to the authorities in the investigation, detection, suppression and prosecution of serious crime: see, for example, Sinfield (1981) 3 Cr.App.R.(S) 258, King (1985) 7 Cr.App.R.(S.) 227, Sivan (1988) 10 Cr.App.R.(S.) 282.  The extent of the discount will ordinarily depend on the value of the help given and expected to be given.  Value is a function of quality and quantity.  If the information given is unreliable, vague, lacking in practical utility or already known to the authorities, no identifiable discount may be given or, if given, any discount will be minimal.  If the information given is accurate, particularised, useful in practice, and hitherto unknown to the authorities, enabling serious criminal activity to be stopped and serious criminals brought to book, the discount may be substantial.  Hence little or no credit will be given for the supply of a mass of information which is worthless or virtually so, but the greater the supply of good quality information the greater in the ordinary way the discount will be.  Where, by supplying valuable information to the authorities, a defendant exposes himself or his family to personal jeopardy, it will ordinarily be recognised in the sentence passed.  For all these purposes, account will be taken of help given and reasonably expected to be given in the future.  It is important that information be given in the form indicated by the decided cases.".

14.      Those comments were the subject of consideration in this jurisdiction in the case of A.G. -v- Trinidade (20^th July, 2000) Jersey Unreported; [2000/141], where the Court said this at paragraph 4:

"We turn finally to the main mitigation urged upon us by Mr. Tremoceiro.  The defendant in this case named the supplier for whom she had undertaken this trip.  The Crown has said that this information was of limited value because the information was already known to Customs and we were referred to the case of R.-v-A&B (1999) 1 Cr.App.R.(s) p.52 which makes it clear that credit will not be given:

"If information is unreliable, vague, lacking in practical utility or already known to the authorities..."

Whilst we accept the general principles described in that case we think that the fact that information was already known to the authorities should not result in there being no discount.  The defendant, after all, was not to know their state of knowledge.  When she gave her information she was giving it in good faith.  No one has suggested in this case that the information given was not completely reliable.".

15.      Each case will turn upon its individual facts but we think there is a difference between genuine information which, unknown to the accused, is already known to the police on the one hand, and information which cannot be confirmed as genuine on the other.  In the former case the accused has genuinely tried to be of assistance and has taken the risk of physical harm involved in doing so.  In the latter case the information may well be completely false.  As the Assistant Magistrate pointed out during the hearing in the court below an accused could give a wholly false name and then demand a discount in sentence for having done so.  If that were all that were required in order to obtain a reduction in sentence we suspect that the police would rapidly become awash in names that could not be traced.

16.      In our judgment the observations in R.-v-A&B, referred to above, in so far as they deal with information which is lacking in practical utility, is unreliable or vague, are equally applicable in Jersey.  Accordingly, where that is the case the Court will not give any discount.

17.      In R.-v-X [1999] 2 Cr.App.R.125 it was made clear that the Court must rely upon the assessment made by the police of the quality and reliability of information given by an accused.  There is, therefore, a high duty on the police to take the greatest possible care in compiling such an assessment.  Although that case was in the context of information supplied privately to the Court, we think that the principles are equally applicable to information given openly.  The Court must be given assistance by the police as to the weight and reliability of the information provided.

18.      In this case we have not received any assessment from the police as to the information.  In the light of the fact that it was known from the appeal papers and from what was said in the Court below that this was an issue, we find that surprising.  Accordingly we offered the appellant the opportunity of an adjournment so that the Court might be provided with an appropriate assessment prepared by a senior police officer as to the weight and reliability of the information which the appellant had given. 

19.      However, having taken instructions, Advocate Tremoceiro elected to proceed with the appeal on the basis of what had been said to Advocate Messervy by the police as set out in the court below.  In other words we have a situation in which the information has been of no assistance.  The police have been unable to ascertain whether this individual exists or not.  In the circumstances the Court must proceed on the basis that the information is unreliable, uncertain and lacking in practical utility.  In the circumstances no discount in sentence is therefore called for, and to the extent that he gave any discount, the Assistant Magistrate erred on the side of generosity. 

20.      We return now to the remaining mitigation.  Unusually the Assistant Magistrate gave a starting point.  He stated it as being 12 months; he then allowed a deduction of 25% from that starting point for the mitigation which he referred to essentially as the guilty plea, and possibly something for the naming of the supplier.  Advocate Tremoceiro says that that discount is not enough to reflect the guilty plea and the ready admissions and assistance referred to by the police officer in connection with the investigation of these offences. 

21.      Had we been sitting at first instance ourselves, we might well have felt that, in the light of the police officer's comments, a full one-third discount for the guilty plea and associated admissions would have been appropriate.  But a Court of Appeal does not sit as a court of first instance.  It must only intervene if the sentence is manifestly excessive.  We do not consider that a sentence of 9 months' imprisonment rather than one of 8 months' can be categorised as being manifestly excessive.

22.      Finally, we have, of course, considered the question of totality as raised by Advocate Tremoceiro.  He says, in effect, that for these offences the total sentence is too high and that therefore the sentence must have been passed because of the defendant's previous record, i.

23.      . that the appellant had been sentenced for his previous record.  We do not agree.  There were 7 cases of shoplifting here, 5 of them were committed whilst on bail; the defendant has an appalling record for similar previous offences.  We do not consider that a total of 9 months' for the totality of such offending can be described in anyway as excessive.  We therefore dismiss the appeal.

Authorities

R.-v- X [1999] 2 Cr. App. R.125.

R.-v-A&B (1999) 1 Cr.App.R.(s) 52.

R.-v-Sivan & Ors (1988) 87 Cr.App.R. 407.

A.G. -v- Marella & Ors (2^nd May 1996) Jersey Unreported.

A.G. -v- Trinidade (20^th July, 2000) Jersey Unreported; [2000/141].