Appeal against refusal to obtain pre-sentence report rejected
In a case reported on 01/12/15 but decided on the 06/10/15, the Court of Appeal indicated that they will be slow to interfere in a sentence where complaint is made about the failure of the judge to obtain a pre-sentence report. In addition, that they will be even less likely to interfere with a decision not to suspend a sentence of immediate custody as they regard this as an exercise of discretion of the court below.
The case went to trial and the appellant was convicted by the jury of one count faced by him of Possessing Criminal Property, contrary to section 329 of the Proceeds of Crime Act 2002. This offence can be committed on the basis of mere suspicion that the money or property concerned was criminal property.
The appellant’s co-defendant was convicted of fraud on a separate count and the money obtained in that respect was circa £77,000. The appellant had allowed his co-defendant to use his bank account to process about £47,000 of this money.
The appellant was shown to have used some of the money at a casino operated by the Gala group. The appellant was of good character but had been convicted after trial. The judge refused to adjourn for a pre-sentence report and sentenced Mr. Jamous to an immediate custodial sentence of 15 months.
Complaint was made on the basis that the judge should have adjourned for a pre-sentence report as this could have provided an alternative to immediate custody that counsel could not propose herself.
Secondly, that the sentence of 15 months was manifestly excessive in the sense that it should have been lower to reflect the “limited role” advanced during mitigation and therefore should have been suspended.
The Court of Appeal rejected both of these grounds stating as follows:
Para 13 We have considered these submissions which have been advanced cogently and concisely, but we have not been persuaded by them. As regards the complaint as to the lack of a pre-sentence report, the statutory position is that under section 156(3)(a) and (4) of the Criminal Justice Act 2003 the court in the case of a custodial sentence, and so far as material to the present appeal, must obtain and consider a pre-sentence report before forming any opinion as mentioned in section 152(2) and section 153(2) of the Act, except if “in the circumstances of the case the court is of the opinion it is unnecessary to do so”. Under section 152(2) the court must not pass a custodial sentence unless it is of the opinion that the offence is so serious that neither a fine nor community sentence can be justified. Under section 153(2), any custodial sentence must be for the shortest term that in the opinion of the court is commensurate with the seriousness of the offence. It is to be noted that under subsection (6) of section 156, no custodial sentence is invalidated by the failure of a court to obtain and consider such a pre-sentence report.
Para 14 – In the circumstances of the appellant’s offending and information the judge already had as to the appellant’s personal circumstances, we find it difficult to conclude that the judge was wrong to say that a pre-sentence report was unnecessary.
And finally in respect of the decision not to reduce and then suspend the sentence:
Para 19: In these circumstances we find it impossible to conclude that the sentence ultimately reached by the judge was manifestly excessive or wrong in principle. The judge’s starting point was in line with the material sentencing guideline. He had regard to the appellant’s previous good character and the other mitigation available to him in reducing the sentence to the level he did. We do not consider his failure to further reduce the sentence to be manifestly excessive. Nor can it be said that this was a sentence which was bound to be suspended. Any decision on suspension is very much an exercise of discretion of a sentencing court with which this court will rarely interfere.
See the full ruling here