Jersey Unreported Judgments

[2006]JCA098

COURT OF APPEAL

14^th July 2006

Before     :

The Hon Michael Beloff, Q.C., President; Sir John Nutting, Q.C.; and J. W. McNeill, Esq., Q.C.

David Anthony Wylie

-v-

The Attorney General

Application for leave to appeal by David Anthony Wylie against the sentence, passed by the Superior Number of the Royal Court on guilty pleas to:

1 count of:	Breaking and entry and Larceny.
1 count of:	Larceny.
3 counts of	Received, hid or withheld items knowing them to have been stolen.
1 count of	Dangerous driving, contrary to Article 22(1) of the Road Traffic (Jersey) Law 1956.
1 count of	Violently resisting police officers in the due execution of their duty.

Leave to appeal was granted by a single judge of the Court of Appeal on 28^th May 2006.

J. C. Gollop, Esq., Crown Advocate.

Advocate R. Tremoceiro for the Appellant.

JUDGMENT

NUTTING JA:

The Pleas

1.        On 19th January 2006, in the Superior Number of the Royal Court, the Appellant, David Anthony Wylie, pleaded guilty to one count of breaking and entry and larceny (Count 1), three counts of receiving, hiding or withholding (Counts 2A, 4A, 5A), one count of larceny (Count 3), one count of dangerous driving (Count 6), and one count of violently resisting a Police Officer in the execution of his duty (Count 7).  

2.        These charges were contained in an indictment which had been re-drafted in the light of discussions between the parties.  As a result of those discussions, the Crown accepted not guilty pleas to a count of larceny, two counts of breaking and entry and larceny, and a count of grave and criminal assault.

3.        The first three of these charges related to the property of garage and domestic premises in respect of which the Appellant denied theft (Counts 2, 4 and 5)  but admitted receiving (Counts 2A, 4A and 5A).  These latter counts were added to the Indictment.  In relation to the charge of grave and criminal assault, which was Count 6 in the original indictment, the Crown offered no evidence on that charge and substituted the charge of dangerous driving which had arisen out of the same incident.

4.        On 19th January 2006 the case was adjourned for sentence and on the 16th February 2006 the Appellant was sentenced by the Royal Court as follows: 3 years on Count 1; 1 year on Count 3; 1 year each on Counts 2A, 4A and 5A to be served concurrently; 3 months on Count 6; and 9 months on Count 7.  The Court ordered that the sentences on Counts 1, 3, 2A, 6 and 7 should be served consecutively making a total of 6 years' imprisonment. The Court also made a Compensation Order in the sum of £2,500, consisting of a sum of £500 to be paid to each victim on Counts 1, 3, 4A and 5A, and the same sum to be paid to a taxi driver whose vehicle had been damaged, as a result of the commission of the offence in Count 7.

The Appeal

5.        The Appellant appeals against the period of imprisonment which he was ordered to serve as well as against the Court's decision to award compensation to the persons whose property he had received in Counts 4A and 5A.

6.        On 6th March 2006 the Appellant applied for leave to appeal. On 5th May 2006 the Deputy Bailiff granted leave.

The Facts

7.        The facts are these. At some time during Wednesday 27th and Thursday 28th July 2005 the Appellant broke into a residential property, "Whiteways" in Grouville, which was unoccupied at the time. He stole property to the value of £15,290. A cigarette butt was found at the scene whose DNA profile matched that of the Appellant. Of the items stolen, those to the value of £11,799 were recovered from the Appellant after his arrest. These facts gave rise to Count 1 of the Indictment.

8.        Shortly afterwards, between the evening of Thursday 28th and the early hours of Friday 29th July 2005, a child's mini motorcycle valued at £375 was stolen from a garage showroom in St. Helier. There was no sign of forced entry. The motorcycle was subsequently found in the Appellant's possession. The receiving of the motorcycle gave rise to Count 2A on the Indictment.

9.        During night of the 28th and 29th July 2005 the Appellant stole a BMW 330ci sports coupé valued at £20,000 from the forecourt of another garage in St. Helier. The owner had decided to sell the vehicle and had left it with the garage for the purpose of sale. It is not known how the Appellant gained access to the keys of the vehicle. At a time just before 9.30 a.m. on 29th July 2005 the Appellant purchased a set of number plates matching the number plate issued to a vehicle of the same make and model as that of the BMW which he had stolen.  He removed the existing number plates and replaced them with the plates he had purchased.  The larceny of the BMW gave rise to Count 3 of the Indictment.

10.      At some time during the early afternoon of Friday 29th July 2005, two residential properties named "Katrina" and "Mellifont" on the same estate in St. Peter were burgled. They were unoccupied at the relevant time.  Entry to "Katrina" was gained by the breaking of a door, which cost between £300 and £500 to repair, and items to the value of £6,535 were stolen from this property. Those to the value of £4,700 were later recovered in the Appellant's possession.  In relation to "Mellifont", located directly opposite the first property, entry was gained by breaking a window which cost between £150 and £200 to repair, and items to the value of £5,918 were stolen.  Those to the value of £2,810 later were recovered in the Appellant's possession.  The offences of receiving the property recovered in respect of these properties were reflected respectively in Counts 4A and 5A.

11.      On the morning of Saturday 30th July 2005, the Appellant attempted to leave the island. He was seen waiting to board the car ferry at the Queen Elizabeth II Quay in the driving seat of a silver Jaguar which he had purchased for £200 on Thursday 28th July 2005. He was stopped by Police Officers and asked for proof of identity and his boarding pass. He produced a driving licence in his own name, but a ticket in the name of "Mr D. Dickinson". When challenged by the Officers, the Appellant gave the explanation that his girl-friend had booked the ticket.  

12.      While the Appellant was looking for the vehicle's log book he inadvertently opened the boot. The Officer noticed that there was a child's motorcycle in the boot, which the Appellant said he had bought for his son. That motorcycle later proved to be the vehicle described in Count 2A of the Indictment.

13.      With scant regard to the safety of the officer who attempted to stop him, the Appellant then drove off at speed out of the seaside area of the harbour against the one-way system. Traffic and pedestrian density in the harbour area was heavy. The dangerous nature of the way he escaped in the car gave rise to Count 6.

14.      Police Officers received information that the Appellant had arranged to meet his girl-friend in the vicinity of the Rosemount Estate, Mount Pinel at about 11.45 a.m. on Saturday 30th July 2005. They attended the location, but were observed by the Appellant, who got into the BMW car, which he had stolen (Count 3), and attempted to escape. In so doing the Appellant drove into a marked Police car, reversed into an unmarked Police car and collided with a passing taxi. Officers had to use their asps to smash the windows of the BMW to remove the keys. They then physically removed the Appellant from the vehicle and placed him on the ground where he was handcuffed. The total amount of damage to all four vehicles amounted to £9,745.56 including over £7,300 worth of damage to the BMW and a sum of just under £1,000 for repairs and associated costs in respect of the taxi.  His resistance to arrest gave rise to Count 7.

15.      Items of stolen property, found within the BMW, included a substantial quantity of the jewellery stolen from the three burglaries of residential property.  The Appellant accepted that he had himself stolen the jewellery from "Whiteways" (Count 1) and that he had received the jewellery recovered in respect of "Katrina" (Count 4A) and "Mellifont" (Count 5A).  Also discovered were rolls of bank notes to the value of £2,500, a Plasma television screen (part of the property of Count 4A) and one of the original number plates for the BMW.

16.      In interview, the Appellant refused, in essence, to answer questions. However, he did co-operate in revealing the whereabouts of the Jaguar. When the Police located that vehicle, they found further stolen property within it, including the child's motorcycle, the subject of Count 2A, a portable DVD player, part of the property of Count 1; and a Sony MD player, part of the property of Count 4A.

The Appellant

17.      The Appellant was born on the 21st February 1963. He is now 43 years old. He has appeared before the Court on twenty previous occasions for a total of 79 offences.  He last appeared before the Royal Court in September 2001 for offences of larceny and receiving stolen goods. On that occasion he was sentenced to four years' imprisonment, which was reduced on appeal in January 2002 to two and a half years. At the time of the commission of the instant offences the Appellant was subject to a Community Service Order imposed on 27th April 2004 for an offence of receiving stolen property.

18.      A Social Enquiry Report and an Alcohol and Drugs Services Report were prepared on the Appellant. The Social Enquiry Report concluded that the Appellant was at high risk of re-offending, and the Alcohol and Drugs Services Report recommended that the Appellant was not suitable for a community treatment order.

The Basis for Sentence

19.      In sentencing the Appellant, the Bailiff referred to the Appellant's long criminal record, including the offences for which he had been sentenced in January 2002 and April 2004. On the other hand, the Bailiff took account of the Appellant's guilty pleas and his co-operation with the Police in recovering some of the stolen property. The Bailiff also acknowledged the Appellant's good work record in custody and the fact that he was supported by his girl-friend of some years standing.  In deciding that six years' imprisonment was appropriate, the Court applied the totality principle.

20.      The £2,500 found on the Appellant on his arrest, was ordered to be divided among the victims in the Indictment as compensation for property which was either damaged or unrecovered in part.

Application for Leave

21.      Notice of the Appellant's intention to apply for leave to appeal against sentence was filed on 3rd March 2006 and leave to appeal was granted on 28th April 2006.

Submissions to this Court

22.      In his submissions to this Court, Mr Tremoceiro, on behalf of the Appellant, submitted that the sentence of six years' imprisonment was manifestly excessive. He put this contention on two grounds, first, that the Royal Court effectively sentenced the Appellant on the basis that he was guilty of the burglaries of the two properties which were the subjects of Counts 4 and 5, to which the Crown had accepted not guilty pleas; and secondly that the Appellant was given insufficient credit for matters of mitigation, and in particular his pleas of guilty.

23.      In relation to these, Mr Tremoceiro reminded the Court that the Crown had contended at the sentencing hearing that the guilty pleas had not been entered at the first opportunity. Mr Tremoceiro insisted that the Appellant had in fact entered early guilty pleas to all counts except Count 1.  He argued that the Appellant's failure to plead guilty to Count 1 when the Indictment was first put to him did not incur extra time or expense on the part of the Crown, since the investigation had already been completed, and further that the Appellant had entered guilty pleas to counts which were alternatives to the three counts to which he had pleaded not guilty, save for the count of assault which the Crown agreed to substitute with a count of dangerous driving.

24.      Mr Tremoceiro submitted that part of the award of compensation was ultra vires.  In respect of the way in which the Royal Court dealt with the burglaries and receivings that gave rise to Counts 4, 4A, 5 and 5A, he submitted that the Crown, in moving for a compensation order in the sum of £2,500 had made appropriate submissions about the allocation of compensation and suggested tht the sum should be divided between the victims of Count 1 (£1,000) and Count 3 (£750) as well as those whose vehicles had been damaged in Count 7, the taxi driver (£500), and the two Police cars (a total of £250).  

25.      However, the learned Bailiff and Jurats decided on a different allocation of the monies, reducing the sums suggested by the Crown, adding some beneficiaries and deleting the award to the Police Authority.  Thus, in his sentencing remarks, the Bailiff awarded a payment of £500 to each of the victims in Counts 1 & 3, £500 to the taxi driver of Count 7 and £500 each to the house-holders of Counts 4 & 5.

26.      The Appellant submits that the Court had no power to order compensation to these house-holders because the Appellant had pleaded guilty to receiving property stolen from their premises (Counts 4A and 5A) rather than breaking and entering (Counts 4 and 5).  Mr Tremoceiro submitted that the loss suffered by the owners was confined to damage inflicted by whoever broke into their property and with respect only to the stolen items which remained unrecovered.

27.      He said that since the Crown had accepted from the Appellant pleas of not guilty to Counts 4 and 5, the Royal Court erred in treating him as responsible for damage to the respective properties and as the person who had retained the unrecovered items from the properties.

28.      Mr Tremoceiro further submitted that the award of compensation to these victims demonstrated that the Court went behind the not guilty pleas accepted by the Crown, and that this part of the compensation order must have been predicated on the basis that the Appellant, as thief, was in fact responsible for the damage and the outstanding property.

29.      Accordingly, the Appellant asked the Court to hold that the sentence of six years' imprisonment was manifestly excessive, to quash it and impose a lesser sentence, and to make whatever amendment to the Compensation Order it deemed appropriate to comply with the Law.

The Appeal against the Compensation Order

30.      For convenience we deal first with the Compensation Order.  The Court's power to make a compensation order is set out in the Criminal Justice (Compensation Orders) (Jersey) Law 1994, which states:

"(1)  Subject to the provisions of this Law, a court by or before which a person is convicted of an offence, instead of or in addition to dealing with the person in any other way, may, on application or otherwise, make an order (in this Law referred to as a "compensation order" requiring the person to pay compensation for any personal injury, loss or damage resulting from that offence or ...

(2)  Subject to paragraph (3), a compensation order shall be of such amount as the court considers appropriate, having regard to any evidence and any representations that are made by or on behalf of the offender, any person who appears to the court to have suffered any personal injury, loss or damage resulting from the offence for which the offender has been convicted or the Attorney General or the Connétable in whose name the offender has been presented before the court."

31.      Under Article 6 a person against whom a compensation order has been made by the Royal Court may appeal to the Court of Appeal against the order.

32.      The Crown Advocate conceded that on the facts of this case there was no evidence to indicate that any item of property from the burglary in Count 4, apart from the property recovered in the Appellant's possession (Count 4A), was ever in the possession of the Appellant.  The Crown Advocate made the same concessions in respect of Count 5 and Count 5A.

33.      In such circumstances Mr Gollop acknowledged, having regard to R v Tyce [1994] Crim LR p 71, that the Royal Court had no power to make compensation orders to the victims of Counts 4 and 5, in the absence of proof that the Appellant's act of receiving part of the proceeds of the burglaries had caused loss to the victims of the burglaries.  Since the property found in the Appellant's possession had been returned to these losers, the Appellant had not caused them loss.

34.      Accordingly we quash the orders for compensation in respect of those victims and reinstate the orders sought by the Crown in their Conclusions.  The Appellant is therefore ordered to pay £1,000 to the loser in Count 1, £750 to the loser in Count 3, £500 to the taxi driver and £250 to the Police Authority, all of whose vehicles were damaged as a result of Count 7.

35.      Since the £2,500 remains in the custody of the police, having been seized from the Appellant in cash and is available for distribution in accordance with this Order, no action is required by the Appellant and there is no need therefore for this Court to make any order in default of payment.

The Appeal against the Sentence of Imprisonment

36.      We deal first with Mr Tremoceiro's submission that the mischief of the Compensation Order made in respect of Counts 4A and 5A was that the order betrayed the fact that the Royal Court treated the Appellant as the burglar in respects of Counts 4 and 5.  We have summarised Mr Tremoceiro's submissions above.

37.      He also relies on a remark made by the Bailiff in sentencing, that the Appellant must have known the identity of the burglar, but refused to co-operate with the police and to reveal his identity.  This criticism of the Appellant was an echo of a submission made by the Crown as an aggravating feature of the offences.

38.      The submission made to us is that the Royal Court either punished him for his failure to reveal the identity, or, worse from the point of view of a correct approach to sentence, treated the Appellant as the burglar of "Katrina" and "Mellifont".  Mr Tremoceiro submits that these are the only two alternative inferences which can be drawn from the Royal Court's unlawful inclusion of the occupants of these two burgled premises in the awards of compensation.

39.      We do not agree.  An analysis of the periods of imprisonment imposed, and the orders made for concurrent and consecutive sentences, demonstrates that the Royal Court sentenced the Appellant, as a burglar, to 3 years on Count 1 (burglary of "Whiteways") and, as a receiver, to one year each on Counts 2A (receiving the motor cycle), 4A (receiving part of the proceeds of "Katrina") and 5A (receiving part of the proceeds of "Mellifont").  Moreover, no doubt partly for reasons linked to the principle of totality, the Bailiff ordered that the sentences in respect of these receiving counts should be served concurrently.

40.      It is true that the sentence for the larceny of the BMW (Count 3) was limited to one year, but this sentence was ordered to be served consecutively to the 3 year sentence for the "Whiteways" burglary (Count 1).  In the event, the Appellant was ordered to serve 4 years for burglary and larceny and only one year for the three counts of receiving. 

41.      We do not accept therefore, that for the purposes of Counts 4A and 5A the Royal Court treated the Appellant as a burglar rather than a receiver, nor do we accept that the unlawful basis of part of the Compensation Order had any bearing on the sentence of imprisonment.

42.      In the light of this analysis we reject the first limb of Mr Tremoceiro's submission in respect of the 6 year sentence.  We have already acknowledged that the Royal Court erred in its approach to compensation; but we conclude that the error was not occasioned because the Court approached the sentencing process on the basis that the Appellant was guilty of Counts 4 & 5, instead of 4A and 5A.  Rather we consider that the Court recognised that, excluding the owner of the child's motor cycle which was recovered in tact, there were a number of owners of property in this case, some of whose property was either outstanding or had been damaged, at the time of sentence.  These included the house owners in Counts 1, 4 and 5, and the owners of cars, the BMW (Count 3), the two police cars and the taxi.

43.      We conclude that the Royal Court, being concerned to compensate all those who had suffered loss or damage, failed to reflect that the Law stipulated that there should be a necessary causal link between loss and compensation, and failed to appreciate that in relation to Counts 4A & 5A that link was missing. 

44.      We turn to the second limb of Mr Tremoceiro's appeal.  Mr Tremoceiro submits that the 6 year sentence was in any event too long having regard to the facts of the case and the mitigation.

45.      We do not agree.  Before the Royal Court the Crown Advocate characterised the offending for which the Court had to pass sentence as "a mini crime wave covering the full spectrum of criminal conduct in the form of offences of dishonesty, violence and motoring offences".  The burglary in Count 1 was a serious offence resulting not only in the invasion of the privacy of a home which is always upsetting for a victim, but the theft of a large number of personal items of significant financial and sentimental value.  In excess of £3,000 worth of those items have not been recovered.

46.      The BMW, stolen shortly afterwards (Count 3), was a valuable car and an aggravating feature of the theft consisted in the Appellant's attempt to change the identification of the vehicle by swapping the true number plates with false ones.

47.      Two of the offences of receiving (Counts 4A & 5A) concerned property of significant personal value to the owners, both sentimental and financial, and occurred as part of this "crime spree".  They were found in the possession of the Appellant within 72 hours of the commission of the burglaries of the houses whence the property came. 

48.      In our view principles of sentencing required that at least some of the offences should be made consecutive one to another and, in view of the time lag between the offending in Counts 1, 3, 6 & 7, we consider the Royal Court was correct to make the sentences for those offences consecutive.

49.      However, albeit that the acts of receivings identified in Counts 2A, 4A and 5A could not be dated with precision, it was appropriate for sentencing purposes to order that the sentences for them should be concurrent with one another, but consecutive to the sentences for Counts 1, 3, 6 and 7 since they were different offences and represented separate and distinct acts of offending.

50.      The record of this Appellant makes melancholy reading.  Since 1978 he has been sentenced to a variety of different penalties as courts have struggled to find a way of impressing on him the errors of offending.  Such penalties have included conditional discharges, fines, Attendance Centre Orders, Detention Centre Orders, Community Service Orders, Probation Orders, and sentences of imprisonment, suspended and serving.

51.      For this Appellant there is nothing novel about appearing in court for offences of the kind with which this Court is concerned, dishonesty, violence, and bad driving.  He has been convicted in the past of approximately 50 offences of dishonesty and kindred offences including burglary and handling stolen property.

52.      Offences of violence occur less frequently in the Appellant's record though he has been convicted in the past of public order offences and assault occasioning actual bodily harm.

53.      Furthermore he has been in constant trouble with motor cars over the years having convictions for theft of cars, driving without insurance (on several different occasions), driving without a licence, failing to stop after an accident and, in 2001, an offence of reckless or dangerous driving.

54.      It is noteworthy that he was sentenced by this Court to serve a 2½ year sentence in January 2002 for larceny and receiving stolen good.  Shortly after his release he appeared before the Royal Court for another offence of receiving stolen property.

55.      In April 2004 he was sentenced to undertake 120 hours' Community Service for that offence and was still subject to that order when, 15 months, later he committed the catalogue of offences with which this Court is now concerned.

56.      Mr Tremoceiro pointed out that the increase in sentence from 2½ years imposed in 2002 to the 6 year sentence imposed by the Royal Court was a considerable increase and significantly longer than any sentence of imprisonment which the Appellant has served in the past.  The response of the Crown was that there has been a corresponding increase in the range and seriousness of the Appellant's offending.

57.      We were also invited by Mr Tremoceiro to consider passages in Crown Advocate C E Whelan's authoritative book on "Aspects of Sentencing in the Superior Courts of Jersey", in which Mr Whelan discusses sentences in respect of burglary of unoccupied dwelling houses and cited a number of authorities from this jurisdiction.

58.      It may well be that a comparison of the relevant authorities indicates that 2 years is a frequent sentence on a plea of guilty and 3 years after a trial.  But Mr Whelan also emphasises that aggravating features serve to increase the sentence from the 2 years "focal point figure".

59.      In Count 1 we consider that there were features which aggravated the offence, including the fact that it was part of a "crime spree" and was obviously planned with some care.  Furthermore the offender has committed burglary on many previous occasions.

60.      We note too that the element of planning and some professionalism is also to be found in the theft of the BMW which included the acquisition of information leading to the manufacture of number plates which matched the make and model of the vehicle stolen.  We also consider that the Appellant's attempted flight from the Island in the immediate aftermath of the "spree" with at least one item of stolen property in the car indicates an intention to convert the proceeds of his offending into cash in another jurisdiction.  We consider this to be a matter which aggravates the offences of dishonesty in this indictment.

61.      We have considered carefully Mr Tremoceiro's submission that the Royal Court failed to make sufficient allowance for the mitigation advanced on the Appellant's behalf.

62.      We have examined what was said in mitigation and what the Bailiff said in his sentencing remarks.  There is no doubt that he indicated that the Royal Court had made due allowance for the pleas, for the way in which the Appellant assisted the police to recover other stolen property (apart from that found in the immediate aftermath of his arrest), the lack of resistance to the application for a Compensation Order, the Appellant's good work record while in custody and the support he has been receiving from his girl-friend.

Conclusion

63.      We have examined the sentences passed for the individual offences and the concurrent and consecutive orders.  We have looked at the length of the resulting sentence with the totality principle in mind.

64.      We can find nothing to criticise in the sentencing process in this case.  The sentence of 6 years must stand.  The appeal is allowed only to the extent of the alterations to the Compensation Order which we have defined above.

Authorities

R v Tyce [1994] Crim LR p 71.

Criminal Justice (Compensation Orders) (Jersey) Law 1994.