2002/97
ROYAL COURT
(Superior Number)
(exercising the appellate jurisdiction conferred upon it
by Article 22 of the Court of Appeal (Jersey) Law, 1961)
14th May, 2002
Before: |
M.C St.J Birt, Esq., Deputy Bailiff and Jurats Le Ruez, Potter, Quérée, Bullen, Allo and Clapham. |
Jamie Anthony NASH
-v-
The Attorney General
Application for leave to appeal against a sentence of 3 years' imprisonment, passed on 1st March, 2002, by the Inferior Number of the Royal Court, following a guilty plea to:
1 count of: |
Larceny. |
The application for leave to appeal to be placed directly before the plenary Court without first being submitted to Single Judge for consideration and determination.
Advocate C.R.G. Deacon for the Appellant;
J.C. Gollop, Esq., Crown Advocate.
JUDGMENT
THE DEPUTY BAILIFF:
1. The applicant appeared before the Inferior Number on 1st March, 2002, to face one count of larceny of twenty six Breitling watches with a retail value of approximately £54,000. He was sentenced to 3 years' imprisonment and now applies for leave to appeal against sentence.
2. The facts can be shortly stated. A few days before 10th September, 2001 the applicant received a telephone call from a friend called Dave, whom he had met in prison. Dave requested him to come to Jersey on 10th September in order to steal some watches, or jewellery, from a cabinet outside a jewellery shop, which cabinet would be unlocked. For this he was to receive a fee of £1,500. On 10th September the applicant flew to Jersey from Birmingham with four other people. He travelled under a false name. He had a single ticket, as did all of his companions. All five of them had further single tickets back to Birmingham the same day.
3. The defendant met up with Dave and three other men, whom he did not know. He then carried out the larceny by taking twenty six watches from the cabinet situated immediately outside the jewellers shop. Two of Dave's associates carried out the larceny with him. One of them stood watch and another assisted him by masking his activities. The applicant then gave the watches to Dave and flew back to Birmingham with the four people who had travelled over with him. As we said, the watches had a retail value of approximately £54,000 and a wholesale value of just under £30,000. None of the watches have been recovered.
4. The applicant was subsequently brought back to Jersey on a warrant on 3rd October, 2001. The warrant was obtained after an identification on the part of a witness from a video film. In addition, Nash's fingerprints were found on the inside of the display cabinet from which the watches had been taken. On his way back to Jersey he said that he had never been to Jersey. When interviewed he exercised his right to silence and refused to answer any questions.
5. He initially pleaded not guilty before the Magistrate's Court, but on 1st November, 2001 he pleaded guilty to stealing ten watches. On 7th November, 2001, he swore an affidavit in support of one of his then co-accused - who was one of the five who had come over with him from Birmingham - when he gave the version of events which we have set out above and which was the version upon which the Crown invited the Court below to proceed. On 6th February, 2002 he admitted that he had taken twenty six watches, rather than ten.
6. In the social inquiry report prepared for sentencing, he gave a completely different version of events, suggesting that he had come over with his father and only committed the crime on the spur of the moment when he met up with some friends. However, he did not persist in this before the Inferior Number and agreed that he should be sentenced on the version of events given in the affidavit and which we have summarised above.
7. The Crown moved for a sentence of three years' imprisonment. No starting point was mentioned initially, but the Commissioner asked the Crown Advocate what starting point the Crown had taken. The Crown Advocate replied that a starting point of five years' had notionally been taken, with an allowance, therefore, of two years' for all available mitigation.
8. The defendant is aged twenty four and has several previous convictions for larceny by shoplifting, together with one for burglary. He has been sentenced to imprisonment on one occasion, namely to a period of eight months'. As we have said, the Inferior Number granted the Crown's conclusions.
9. Miss Deacon, on behalf of the applicant, says that the sentence was manifestly excessive. She raises a number of grounds. She refers, first, to the fact that the Crown and the Court had expressed scepticism about the applicant's version of events, in particular, that the four people who had travelled over with him from Birmingham had nothing to do with the offence. She says that the applicant has a sense of grievance and concern that the Court may, perhaps subconsciously, have been affected by its scepticism.
10. However, the Crown made clear that the applicant was to be sentenced upon the version of events which we have described and, in giving its judgment, the Court made clear that the Crown accepted the version put forward in the affidavit. We see no reason to doubt that sentence was passed on that basis. We have certainly considered whether the sentence is appropriate on the basis of events agreed between the Crown and the Defence.
11. In any event, it seems to us that whether the applicant committed the offence with Dave and his associates, or whether he committed it with those with whom he had travelled to the island, does not really make any difference. The gravamen of the offence is that the applicant came to Jersey for the day, specifically to carry out this larceny at the request of others for reward. In our judgment the Crown was entitled to comment about the different versions of events and we do not think that any criticism is to be laid at the door of the Crown or of the Court.
12. Next, Miss Deacon referred to the fact that the Court mentioned only the retail value of the watches taken, rather than their wholesale value. She accepted that she was unable to point to any authority which suggested this was erroneous and we are unable to see that it is erroneous. Both sums were made known to the Court by the Crown during their summary and the fact that the Court happened to mention the retail value cannot, in our judgment, be a ground for appeal any more than the fact that the Court traditionally refers to street value when sentencing for drug trafficking offences.
13. Next, counsel says that the starting point of five years', mentioned by the Crown, was too high. She links this with her submission that insufficient credit was given for the various points of mitigation. These can be summarised as: the guilty plea; the applicant's willingness to give evidence for a co-accused, by means of his affidavit and, if necessary, in court; residual youth; the fact that although he had a record for dishonesty, there had been a gap of three and a half years and all of the offences had been committed whilst he was a young offender. She referred also to his difficult childhood and to a recent bereavement - the loss of his grandfather, with whom he had grown up and a miscarriage by his girlfriend.
14. We have to say that we do not consider a willingness to give evidence for a co-accused to be a matter of mitigation. Nor, of course, is it something to be held against the accused. It is simply a neutral factor. We, of course, accept that all the other matters mentioned are items which go to mitigation.
15. Miss Deacon also referred us to extracts from Current Sentencing Practice (B6-1.31: pp.23228-23235. It is difficult to draw much from these passages. We were unable to find a very similar case. Some sentences were more, others were less. She referred specifically to the case of R -v- Sutcliffe (1995) 16 Cr. App. R (S) 69, but it is always difficult to draw conclusions from one individual case when one does not know the full background.
16. The fact remains that this was a serious offence. The applicant came to Jersey for the day, in order, specifically, to steal watches to order. It was a professional and pre-meditated theft, carried out with a look out and an assistant to hide what he was doing. He travelled under a false name. The watches have not been recovered. We accept, as Miss Deacon urged, that he was not the organiser of this larceny, but he was clearly a crucial player and carried out the stealing himself.
17. The question for this court is whether, taking account of the seriousness of the offence and allowing for the mitigating factors, the sentence passed by the Court below was manifestly excessive. We do not think that it was. We note the reference to a starting point. It is quite difficult to apply that concept to offences such as this, as it notionally requires us to consider the right sentence for a person who does not have the mitigating qualities and characteristics available to this defendant. Perhaps an easier way to look at it is to ask oneself what the sentence would have been on a not guilty plea, in order to ensure that adequate credit has indeed been given for the applicant's guilty plea. If a sentence of three years' is correct, this would suggest that a sentence within the region of four to four and a half years' would have been right after a trial.
18. In this case the defendant did not admit the offence immediately. He lied on the way to Jersey, he gave a 'no comment' interview; when he did plead guilty he pleaded guilty, initially, to the larceny of only ten watches and it was not until comparatively late that he admitted the full extent of his offending. In England, it is now put on a statutory basis that the court must take into account how early a full guilty plea is entered. We do not have that statute in Jersey, but the Court has on many occasions said that the earlier the full admission, the greater the discount given in respect of a guilty plea. We, therefore agree with the Crown that this was not a case for a full discount, but clearly this was a plea of value and a substantial discount was appropriate.
19. We do not consider that a sentence of four to four and a half years' would have been excessive following a trial. We have considered all the matters put forward by Miss Deacon, but we see no reason to categorise the sentence of three years' as being manifestly excessive. We grant leave to appeal, as we think these matters were properly brought before the Court, but we dismiss the appeal.
Authorities
David Wylie -v- AG (17th January 2002) Jersey Unreported; [2002/13]
Current Sentencing Practice (B6-1.31: pp.23228-23235.)
R -v- Sutcliffe (1995) 16 Cr. App. R (S) 69
AG -v- Barnes (12th February, 2002) Jersey Unreported; [2002/40]
AG -v- Hanby (20th March, 2002) Jersey Unreported; [2002/66]
Cooper-v-AG (10th January, 2001) Jersey Unreported; [2001/6]