Jersey Unreported Judgments

2000/118

4 pages

ROYAL COURT (Superior Number)

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

 

28^th June, 2000.

 

Before Sir Philip Bailhache, Bailiff and Jurats Potter,

Quérée, Tibbo, Bullen, Le Breton, and Allo.

 

 

 

Phitsamey Gosselin (née Sayakoummane)

-v-

The Attorney General.

 

Application for leave to appeal against a sentence of 3 years' imprisonment, imposed by the Inferior Number of the Royal Court on 31^st March, 2000, following a guilty plea to:

 

1 count of:   attempted robbery.

 

Leave to appeal was refused by the Bailiff on 5^th May, 2000, and on 12^th May, 2000, the appellant exercised her entitlement under Article 39 of the Court of Appeal (Jersey) Law, 1961, to renew the application to the plenary Court..

 

 

Advocate Mrs. C.R.G. Deacon for the Appellant.

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

 

 

JUDGMENT

 

THE BAILIFF:

 

1.            This applicant pleaded guilty to a single count of attempted robbery and was sentenced by the Inferior Number to 3 years' imprisonment.  She now applies to the Superior Number for leave to appeal against that sentence, leave having been refused by a Single Judge.

 

2.            The facts, very briefly, are that the applicant consumed champagne and two cans of lager before taking a self-loading replica pistol belonging to her friend from its leather holster and loading the magazine with some rounds of blank ammunition.  She took the gun and during the course of the evening entered the Gloucester Street Newsagents.  When other customers had left the shop, the applicant approached the shopowner, produced the hand-gun from inside her coat and pointed it, at first at his face, and then at his chest, ordering him to open the cash register and to give her the money.  When she was distracted by a noise in the shop the owner managed to disarm her and during the struggle the gun discharged.  The shopowner subsequently gained control of the gun, the police were called and the applicant was arrested.

 

3.            Counsel for the applicant began her submissions by drawing attention to a train of events which she said had given rise to a grievance on the part of her client.  As has become customary, it appears, on the day before sentencing, the Crown Advocate sent a copy of his conclusions and the authorities upon which he proposed to rely to defence counsel.  The bundle was also sent to the members of the sentencing Court and on reading the bundle, the Deputy Bailiff reached the conclusion that certain relevant cases were not to be drawn to the attention of the Court.  The Crown Advocate was informed and, as a result of that, included in a revised bundle the relevant authorities and indeed withdrew from the bundle other authorities which he, upon reflection, did not consider to be relevant.

 

4.            The conclusions which were contained in the original bundle were for 18 months' imprisonment and the conclusions in the revised bundle were for three years' imprisonment.  During the short period of time before the original bundle was replaced, the applicant had been informed by her then counsel that the conclusions were to be for 18 months' imprisonment and she was, of course, subsequently informed that they were to be increased to three years' imprisonment.

 

5.            Counsel for the applicant has told us that the applicant was aggrieved by this change of approach by the Crown Advocate.  Is this a legitimate grievance?  We can understand that the applicant was disappointed to learn of the change in the Crown Advocate's conclusions but this is not, of course, the same thing as a legitimate grievance.  We can only assume that defence counsel explained to her client the nature of the Crown's conclusions and the fact that, whatever the conclusions might be, the power of sentencing rests with the members of the Court.

 

6.            We are satisfied that these circumstances must have been explained satisfactorily to the applicant because on the day of sentencing, she instructed her counsel that she did not wish to take advantage of the suggested adjournment and wanted the Inferior Number to proceed to sentence.  We do not consider, therefore, that any disappointment which the applicant might have experienced amounts, in fact, to a legitimate grievance.

 

7.            The applicant bases her appeal on the ground that the sentence of three years' imprisonment was manifestly excessive because the Inferior Number accorded insufficient weight to the applicant's exceptional personal circumstances.  Those circumstances were described by counsel as being firstly, her age, that is 24, and her previous good character; secondly, her family circumstances in that she is separated from her husband and has only limited access to her small son; thirdly, her financial circumstances which were said to be dire; fourthly, her mental condition at the time of the offence; she was drinking excessively and was depressed; fifthly, her physical health in that she suffers from a life-threatening condition; and sixthly, that she admitted the offence from the outset and pleaded guilty to the indictment.  Counsel has, indeed, emphasised these mitigating circumstances with all the power and persuasiveness at her disposal.

 

8.            The Court has been referred to a number of authorities but we think it is unnecessary to recite them because there is no doubt that a sentence of three years' imprisonment is within the range of sentence which is usually imposed for an offence of this kind.  We have asked ourselves whether the sentence was - in view of all the circumstances which have been very well laid before us by counsel for the applicant - manifestly excessive.

 

9.            This was, undoubtedly, a terrifying experience for the shopkeeper and the Court must make it clear to others that it is determined to deter any who might be tempted to prey upon small shops of this kind and to punish severely those who are brought to justice.  We think that the Inferior Number gave full and proper weight to all the mitigating circumstances and the application for leave to appeal is accordingly refused.

 

10.        We do, however, make the Order requested by counsel for the applicant pursuant to the provisions of Article 35 of the Court of Appeal (Jersey) Law, 1961, so that the applicant will not be additionally penalised by reason of making this application for leave to appeal.

Authorities

 

 

A.G. -v- Marsh & Ors. (22^nd November, 1996) Jersey Unreported.

 

A.G. -v- O'Driscoll (19^th November, 1992) Jersey Unreported.

 

Gill -v- A.G. (29^th September, 1999) Jersey Unreported CofA.

 

R. -v- Bernard [1997] 1 Cr.App.R.(S) 135.

 

R. -v- Pearce [1953] 36 Cr.App.R. 149.