Cristopher Brown v R

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 07 February 2014
• Neutral Citation: JM 2014 CA 15
• Court: Court of Appeal (Jamaica)
• Docket Number: RESIDENT MAGISTRATES' CRIMINAL APPEAL NO 5/2013
• Date: 07 February 2014

[2014] JMCA Crim 5

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison JA

The Hon Mrs Justice McIntosh JA

The Hon Mr Justice Brooks JA

RESIDENT MAGISTRATES' CRIMINAL APPEAL NO 5/2013

Christopher Brown

and

R

Robert Fletcher for the appellant

Mrs Sahai Whittingham-Maxwell for the Crown

CRIMINAL LAW - Forgery - Uttering a forged document - Obtaining money by false document - Conspiracy to defraud - Leave to appeal - Excessive sentence

Brooks JA

1 On 16 January 2014, after considering the record of appeal and hearing submissions on behalf of Mr Christopher Brown, we made the following orders:

• ‘1. The appeal is allowed.

• 2. The sentence of three months imprisonment imposed by the Resident Magistrate on each count is set aside.

• 3. In lieu of those sentences the following fines are imposed:

  • a. Count 1 — $100,000. 00 or 3 months imprisonment at hard labour,

  • b. Count 2 — $100,000. 00 or 3 months imprisonment at hard labour,

  • c. Count 3 — $100,000. 00 or 3 months imprisonment at hard labour,

  • d. Count 4 — $50,000. 00 or 3 months imprisonment at hard labour,

  • e. Count 5 — $50,000. 00 or 3 months imprisonment at hard labour,

  • f. Count 6 — $50,000. 00 or 3 months imprisonment at hard labour,

  • g. Count 7 — $50,000. 00 or 3 months imprisonment at hard labour,

  • h. Count 8 –admonished and discharged.

• 4. The appellant is granted three months with one surety within which to pay the fines.’

2 The orders arose from Mr Brown's appeal against sentences passed on him on 14 March 2013 by Her Honour Ms Judith Pusey, Resident Magistrate for the Corporate Area. The learned Resident Magistrate sentenced him to three months imprisonment on each of the eight counts of the indictment on which he had been charged. The sentences were ordered to run concurrently. Mr Brown had previously pleaded guilty to all of those counts and the learned Resident Magistrate imposed the sentences after having had the benefit of a social enquiry report, in which Mr Brown was the subject, and having heard a plea in mitigation by Mr Brown's counsel.

3 The learned Resident Magistrate, in passing sentence, did not accede to Mr Brown's requests that he be given a non-custodial sentence and that his conviction not be recorded. Mr Brown contends that the sentences are manifestly excessive and has appealed against them. He was granted bail in the sum of $500,000.00 pending appeal.

4 An examination of his appeal requires a listing of the counts for which Mr Brown was convicted and a statement of the facts leading to his convictions. The counts were:

• a. three counts of forgery;

• b. three counts of uttering a forged document;

• c. one count of obtaining money by a false document; and

• d. one count of conspiracy to defraud.

5 The learned Resident Magistrate succinctly recorded the circumstances of the commission of those offences. They appear in the record of appeal as follows:

‘In 2012 the National Commercial Bank instituted a “loan sale” initiative in which it relaxed it [sic] conditions for accessing a loan requiring among other things proof of income and a recommendation to qualify.

This accused man desired to access a loan of $4,230,000.00 in the loan sale but did not earn sufficient funds from his job to qualify. He therefore created recommendations from his friends as to his creditworthiness, pay slips elevating his income to in excess of three hundred thousand dollars per month and a job title in a position that he did not fill. All these documents were fictitious.

He submitted the documents to the bank and successfully obtained the loan and was servicing the loan. The fraudulent activity was discovered and he was questioned by the police. In the presence of his Attorney-at-Law he gave a caution statement to the police.’

There is no gainsaying that these facts reveal serious offences.

6 The learned Resident Magistrate, in setting out her reasons for the sentences imposed, noted that Mr Brown had shown no remorse and ‘no reflection that any meaningful punishment should attend his criminal action’. She found support in a portion of the social enquiry report that indicated that Mr Brown had sought to justify his actions to the probation officer who was conducting the interview. The portion of the report states as follows:

‘Ironically the Subject [Mr Brown] has sought to justify his actions, and has not indicated any regret for his actions…’

It is in that context that the learned Resident Magistrate imposed the sentences mentioned above.

7 The question for the court is whether the sentences are manifestly excessive in the circumstances, given the fact that:

• a. The social enquiry report indicated that Mr Brown was a businessman with, no previous convictions, a good reputation in his community and an unblemished character.

• b. He had pleaded guilty to the offences.

• c. He had assisted the police in their investigations.

• d. He had been dutifully servicing the loan and upon the deception having been revealed, had repaid the sums involved.

• e. The victim had suffered no financial loss.

8 In his written submissions on behalf of Mr Brown, Mr Fletcher argued that the case was not one in which ‘the classical principles of sentencing — deterrence, prevention, rehabilitation and punishment cannot be reasonably achieved by any other means’. He argued that the learned Resident Magistrate had placed too great an emphasis on the lack of remorse by Mr Brown. Mr Fletcher submitted:

‘the purpose of sentencing might not be to reward or punish apparent contrition. The degree of demonstrated contrition is a personal thing that may even be affected by a simple human characteristic such as pride and bravado and is not a reliable basis upon which to ground a sentence, especially in light of a plea of guilty.’

9 In oral submissions, Mr Fletcher reinforced that point. He argued that the learned Resident Magistrate had not placed sufficient emphasis on the implications and effect of the guilty plea offered by Mr Brown. Learned counsel submitted that the import of the guilty plea had been ‘underrated’. He concluded that, given all the circumstances, a custodial sentence was inappropriate.

10 A fundamental principle applied by this court in appeals against sentence is that it does not alter a sentence imposed at...