Jersey Unreported Judgments

2001/208

ROYAL COURT

(Samedi Division)

 

22^nd October 2001

 

 

Manuel dos Reis de Jesus

-v-

The Attorney General

 

Magistrate's Court Appeal

Application for leave to appeal by Manuel dos Reis de Jesus against a total sentence of 2 months', passed in the Magistrates Court on 23^rd August, 2001, following guilty pleas to:

3 counts of:

Allowing the sale of intoxicating liquor, without a licence, contrary to Article 79(1) of the Licensing (Jersey) Law 1974 (on counts 1 & 3 a sentence of 2 month's imprisonment was passed.  On count 2 a sentence of 1 months' imprisonment., all concurrent).

 

Appeal allowed; sentence quashed and following sentences substituted.

 

Count 1:	£250 fine or 2 weeks imprisonment in default of payment.
Count 2:	£500 fine or 1 months' imprisonment in default of payment
Count 3:	£750 fine or 2 months' imprisonment in default of payment.  All default sentences: concurrent.
TOTAL:	Fine of £1,500; or 2 months' imprisonment in default of payment.

 

Advocate M.L. Preston for the Appellant

Advocate C Yates on behalf of the Attorney General.

 

 

JUDGMENT

 

THE Bailiff:

1.        This Appellant pleaded guilty before the Magistrate's Court on 23^rd August, 2001 to three infractions of Article 79 of the Licensing (Jersey) Law 1974 by allowing the sale of intoxicating liquor without a licence, and was sentenced to a total of 2 months' imprisonment.   He now appeals on the grounds that the sentence is manifestly excessive.

2.        The history to the offences is this.  The Appellant purchased a retail business, including the stock at the end of 2000, for £15,000.  Until December 2000 a 6^th category liquor licence was held by a Mrs Vasconcelos.  The Appellant took no steps to apply for a licence, but during the first 3 months of 2001 continued to sell liquor, and indeed to allow customers to consume liquor on the premises.

3.        On 22^nd January, he received a visit from the Police who found three males consuming alcohol on the premises.   There was alcohol on display.   On 23^rd January the police returned and the Appellant was advised that he was not authorised to sell alcoholic liquor.  He was warned for a Parish Hall enquiry on 26^th February.

4.        At about 10.00pm on 21^st February, the police paid a second visit to the premises.  They observed the Appellant leaving the premises to put empty beer bottles in the boot of his car.  Inside the premises about half the display was devoted to alcoholic drinks and hand written price lists were taped to them.   On this occasion an interpreter was asked to attend so that there could be no doubt that the Appellant knew that in selling alcohol, he was committing an infraction of the licensing law.

5.        At 17.45 on 26^th March, 2001 officers again attended at the premises in order to warn the Appellant of a date for interview.  The officers again found alcoholic drinks on display and at the rear of the premises two males were consuming what appeared to be white wine.   On the 27^th March the Appellant was interviewed at Police Headquarters in the presence of an interpreter, and admitted selling alcohol on all three occasions without a licence.   He also admitted selling alcohol for consumption on the premises, although it is true that in submissions this morning Counsel for the appellant denied that that was the case.

6.        The Magistrate regarded these offences as extremely serious and indicated that they amounted to the worst breach of the licensing law in his experience.   He clearly considered that the Appellant had deliberately disregarded his obligations under the law, notwithstanding clear advice, not only from the police, but also from his professional advisers.  The Magistrate reminded himself that the maximum penalties laid down by the States for a breach of Article 79 were an unlimited fine, or up to 12 months' imprisonment.

7.        Was the total sentence of 2 months' imprisonment which the Magistrate imposed manifestly excessive in all the circumstances?  Mr Yates, on behalf of the Attorney General, drew our attention to an extract from Pipon -v- The Attorney General (16^th August 1999) Jersey Unreported [1999/143], where the Court stated:

It is trite law for us to say that this Court will not generally wish to interfere unless the sentence imposed is either wrong in principle or manifestly excessive.  See  Graham -v- Attorney General (16^th January, 1995) Jersey Unreported. 

The other way of putting that is that this Court will not alter a sentence on appeal merely because the members of this Court might have passed a different sentence.

8.        Counsel for the Appellant submitted that the mitigating circumstances had not been adequately taken into consideration by the Magistrate.  The Appellant is a very hard working individual who earns £163 per week as a night porter, and during the day time operates the business.   He has lived in Jersey for 16 years, he has four children in Madeira whom he supports, and he also has a 16 year old daughter in Jersey whom he maintains.

9.        The Appellant has two convictions for driving with an alcohol concentration above the prescribed limit, but is otherwise of good character.  He is aged 53.  We agree with the Magistrate that this was a bad case of infractions of Article 79 of the Licensing Law.  We think that the Appellant closed his eyes to his obligations under the Law, and refused to listen to advice because it was inconvenient to do so.

10.      Notwithstanding all that this was not a case, in our judgment, which called for a custodial sentence, having regard to the mitigation available to the Appellant.  This was not a case where there was evidence of drunkenness, disorderly conduct, selling alcohol to minors, or selling alcohol  late into the night.  Purely and simply the Appellant ignored his obligation to seek and obtain a licence to sell alcohol.   It was a serious offence but not one which required the imposition of a custodial sentence which was,  in our judgment, manifestly excessive.

11.      We accordingly allow the Appeal, and quash the sentences imposed in the Court below.  We substitute for the sentence imposed on charge one a fine of £250, or in default of payment 2 weeks' imprisonment, on charge two a fine of £500 or in default of payment one month's imprisonment, and on charge three a fine of £750 or in default of payment two months' imprisonment.  All those default sentences to be concurrent.   The total fine imposed is therefore £1,500.

12.      We turn to the question of forfeiture of the alcoholic liquor.  Article 79(3) of the Licensing (Jersey) Law 1974, provides:

On the conviction of any person for an offence under this Article, the Court may declare all intoxicating liquor found in the possession of the person convicted and the vessels containing the liquor to be forfeited.

Both counsel agreed, that not withstanding this statutory provision, this Court sitting on appeal from the Magistrate's Court did not have the power to order forfeiture of the intoxicating liquor found in the possession of the appellant.

13.      We must not be taken as necessarily accepting these submissions which may be left for decision on another day.  It is unnecessary for us to resolve the question because the Appellant has agreed voluntarily to abandon  the ownership of the alcoholic liquor currently under the control of the Police, as a condition of bail.   We accordingly authorise and order the Viscount to sell the intoxicating liquor currently under the control of the Police, and to apply the proceeds in settlement of the fines which we have imposed, accounting to the Appellant for any surplus moneys which may result.    In the event of a short fall, the balance of the fines must be paid within one month.    The usual order for costs will be made in favour of the Appellant.

 

Authorities

Pipon -v- Attorney General (16^th August, 1999) Jersey Unreported [1999/143];

R -v- Ball (1951) 35 Cr.App.R.164.

A.G -v- Jimmy's Limited (20^th March 1998) Jersey Unreported [1998/55]