[2003]JRC214
ROYAL COURT
(Superior Number)
(exercising the appellate jurisdiction conferred upon it
by Article 22 of the Court of Appeal (Jersey) Law, 1961)
24th November, 2003
Before: |
Sir Philip Bailhache, Bailiff, and Jurats de Veulle, Quérée, Tibbo, Georgelin, Allo and King. |
John Sebastian FENN
-v-
The Attorney General
Application of John Sebastian FENN for leave to appeal against a total sentence of 3 years and 2 weeks' imprisonment passed on 27th June, 2003, by the Inferior Number of the Royal Court, following a guilty plea to:
First Indictment
1 count of: |
Assault (count 1), on which count a sentence of 3 months' imprisonment was passed. |
1 count of: |
Breaking and entry and larceny (count 4), on which count a sentence of 2 ½ years' imprisonment, concurrent, was passed. |
1 count of: |
Supplying a controlled drug contrary to Article 5 (b) of the Misuse of Drugs (Jersey) Law, 1978: count 5: Temazepam, on which count a sentence of 6 months' imprisonment, consecutive, was passed. |
Second Indictment
1 count of: |
Fraud (count 3), on which count a sentence of 3 months' imprisonment, concurrent, was passed |
1 count of: |
Breaking and entry and larceny (count 4), on which count a sentence of 2 years' imprisonment, concurrent, was passed. |
Breach of a 45 hour Community Service Order made in Magistrate's Court, on guilty plea to 1 Count of driving whilst disqualified, , for which breach a sentence of 2 weeks' imprisonment, consecutive, was substituted for the Community Service Order.
The remaining counts relate to co-defendants, who have not appealed.
The application for leave to appeal placed directly before the plenary Court, without first being submitted to a Single Judge for determination.
Advocate D. Hopwood for John Sebastian Fenn;
C.M.M. Yates, Esq., Crown Advocate.
JUDGMENT
THE BAILIFF:
1. This applicant was sentenced on 27th June, 2003 by the Inferior Number to a total of three years and two weeks' imprisonment for a series of offences involving dishonesty, assault and the misuse of drugs contained in two separate indictments. He now seeks leave to appeal against that sentence on the ground that it was, in all the circumstances, manifestly excessive.
2. Counsel has advanced two arguments in support of that submission, namely (1) that there was undue disparity between the applicant and one of his co-accused, Brian Botting, and (2) that insufficient weight was given to the mitigating circumstances.
3. In support of the first argument counsel points out that both the applicant and Botting received the same sentence of thirty months' imprisonment for one of the offences namely breaking into the premises of Benest's of Milbrook and stealing a quantity of controlled drugs and other property.
4. Botting faced a number of charges of supplying some of those drugs including Class A, B and C drugs for which he received six months' imprisonment to run concurrently with the thirty months' imposed for the break-in. By contrast, the applicant received six months consecutive for supplying a Class C drug, Temazepam to a young woman. Counsel submits that this amounted to unfairly disparate treatment.
5. In Jenkins -v- A.G. (23rd January, 2001) Jersey Unreported; [2001/22], Smith JA giving the judgment of the court stated in relation to a disparity argument
"Had we concluded that right-minded citizens apprised of all the facts of this case would have thought the appellant unfairly dealt with, we would have corrected that unfairness."
6. In this case Birt, Deputy Bailiff, in giving the judgment of the Inferior Number, stated
"We have approached our task in this case by considering what we believe to be the correct overall sentence and we have then made adjustments by making sentences concurrent or consecutive as the case may be, in order to reach sensible individual sentences as best we can having regard to our primary decision which is the overall level of sentence."
7. The Inferior Number might well have imposed consecutive sentences upon the applicant for an unpleasant assault upon a sixty-two-year-old man or indeed for a completely separate break-in at a chemist's shop committed a week or so after the Benest's break-in. It chose not to do so but identified the supplying of Temazepam to a young woman as being the offence for which a consecutive sentence should be imposed in order to bring the total sentence up to that which it deemed appropriate.
8. We cannot fault that decision. It was the totality of the sentence in relation to the totality of the offending that was important. Both the Crown in moving conclusions and the Inferior Number in passing sentence took the view that there was nothing to choose between the criminality of the applicant on the one hand and Botting on the other, nor in the mitigation available to each of them. Both had bad records of previous convictions, each involving offences of dishonesty and the misuse of drugs. Botting was to be sentenced for a greater number of offences of supplying the drugs taken from Benest's but the applicant was also to be sentenced for the offence of assault to which we have referred and an offence of fraud upon the Welfare Department of St Helier. We see no unfairness as to the treatment of the applicant in relation to Botting and this submission of counsel for the applicant is therefore rejected.
9. Counsel's second submission is that the Inferior Number failed to give due weight to the mitigation available to the applicant.
10. Counsel has summarised those mitigating circumstances as being: first, his relative youth - he is aged twenty-nine; secondly, his valuable guilty plea; thirdly, his cooperation with the police; fourthly, his history of drug use and his attempts to be rehabilitated; fifthly, the fact that the vast majority of the drugs taken were intended for his personal use and that the small amount supplied to the young woman was given to her for a nominal charge to assist her in her own withdrawal from the effects of addiction to Class A drugs; sixthly, the death of one of his children whilst still a baby and the impact upon him and his former partner of that bereavement; seventhly, the appellant's depression fuelled by the death of his child and its connection to his addiction to tranquilisers which in turn led indirectly to the commission of offences for monetary gain; eighthly, the fact that the victim of the assault suffered no lasting injury and that the assault was not premeditated and was provoked; ninthly, his financial and general living circumstances which led to the charge of fraud; tenthly the opportunistic nature of the breaking and entry offences which were committed at unoccupied commercial premises and eleventhly, the fact that most of the stolen items were recovered and were only of a nominal financial value.
11. At sentencing before the Inferior Number counsel expressly did not request reports from the Alcohol and Drug Advisory Service nor from the consultant psychologist. Counsel acting for the applicant at this appeal has made a request for such reports and they have been made available to this Court. We have read them carefully but they do not add anything of substance to the material that was before the Inferior Number.
12. Counsel for the applicant emphasised particularly before us the mitigation arising from the tragic death of the applicant's four-month-old child five years ago. We, of course, sympathise with the applicant in relation to this tragedy and we are glad to hear that the bereavement counselling which he has been having in prison has been helpful to him. We were also glad to hear from the submissions of counsel that the applicant has been accepting guidance in relation to his drug addiction and has been responding well to the guidance and help that is being given to him.
13. We are however satisfied that all these matters of mitigation were taken fully into account by the Inferior Number when the matter was before them. Counsel for the applicant has said everything that could be said on his behalf. Our task, as the Crown Advocate has reminded us, is to decide whether the sentence imposed was manifestly excessive. In our judgment it was not excessive in any sense and the application for leave to appeal is therefore refused. We also order that the provisions of Article 35 of The Court of Appeal (Jersey) Law 1961 are not to be applied in this case.
Authorities
Jenkins-v-AG (23rd January, 2001) Jersey Unreported; [2001/22]