Jersey Unreported Judgments

Inferior Number Sentencing - larceny.

[2012]JRC119

Royal Court

(Samedi)

15 June 2012

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Cornu and Milner.

The Attorney General

-v-

Cliff Diogo Goncalves

Sentencing by the Inferior Number of the Royal Court, following a guilty plea to the following charge:

1 count of:

Larceny (Count 1).

Age:  30.

Plea: Guilty.

Details of Offence:

The defendant had taken over the lease and business at Trinity Stores.  He also entered into an agreement with Jersey Post to provide post office services.  This agreement stipulated that all post office monies must be kept separately and must not be used for any purpose other than those agreed.  The defendant ran into financial difficulties and used £22,811 of Post Office monies to pay his suppliers in the convenience store side of the business over a two month period.  The offence was in breach of trust.  

Details of Mitigation

Early plea; first offender; the defendant had ceased trading and admitted to Jersey Post that he had taken the money.  Frank admissions to police and cooperation.  The defendant was arranging to sell the jointly owned matrimonial home shared with his wife and child to repay the monies.  Monies were not used for luxury items but to shore up the business.  Good references; considerable remorse and negative impact on family. 

Aggravating factors:

The defendant had previously borrowed £500 from the Post Office monies and had been reminded of the terms of his agreement and warned that any repeat of that behaviour would be strictly dealt with. 

Previous Convictions:

None.

Conclusions:

Count 1:

18 months' imprisonment.

Compensation Order sought in favour of Jersey Post in the sum of £24,504.85 with 6 months' in which to pay, or 6 months' imprisonment in default.

Sentence and Observations of Court:

The Court stated that the Court's policy in breach of trust cases is clear.  None of the mitigating factors amounted to exceptional circumstances which would enable the Court to avoid a custodial sentence.

Count 1:

12 months' imprisonment.

Compensation Order made in the sum of £24,504.85 to be paid within 6 months and liberty to apply if unable to pay within that time, or 6 months' imprisonment in default. 

Mrs S. E. Fitz, Crown Advocate.

Advocate J. C. Gollop for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The Court has been out some time because we have found this case difficult as we find all these sorts of cases difficult.  Mr Gonclaves we have had a mitigation speech from your counsel which has been elegant and fluent and in a sense it did not need to be because the facts that we have in this file speak for themselves.  Nonetheless we are going to send you to prison.  You are here to be sentenced for theft of £22,811.10 which was in breach of trust and the Court's policy is absolutely clear from all the previous cases; and we do not see in the circumstances of this case anything which is exceptional.  The cases which have been put before us all show how difficult it is for the sentencing court to distinguish offending of this kind because, almost invariably, those who commit these offences are of good character, have allowed themselves to make mistakes, and I call it a mistake but it is a dishonest mistake, by doing things that they should not have done, taking money, but sometimes other assets, in breach of trust.  The effect on their families is always extremely worrying but as was said in the case referred to us, on the other side it must not be thought that people who have failed to consider the effect their actions may have on their family are to be treated in any more sympathetic way than others.   We do not like having to do it but it seems to us essential to make matters clear that that policy has been established for many, many years and the only option for this Court would have been to refer the matter to the Superior Number for the policy to be reconsidered; but we are bound by that policy and accordingly we are going to send you to prison. 

2.        The Crown Advocate has come up with conclusions of 18 months' imprisonment and we think those conclusions are absolutely right.  However, as an act of mercy we are going to reduce them and we are going to sentence you to 12 months' imprisonment on this Count. 

3.        We also order that you pay compensation of £24,504.85.  You must pay that within 6 months.  There is liberty to apply if you cannot pay it within that time so that if for any reason the house sale does not go through, then you can apply for more time to pay, or indeed if for some reason prices get depreciated and so you no longer have the cash to pay then you can apply to have the order set aside, but if you can pay it back then it must be paid within 6 months.  As I say liberty to apply but if you do not pay it there is a 6 months' prison sentence in default of payment during that period.  The Court accepts all the mitigating factors which have been put before us but we do not see those as being exceptional and we therefore do not feel we have any option but to impose this particular sentence in all the circumstances of the case.  

Authorities

Whelan on Aspects of Sentencing in the Superior Court of Jersey.

Barrick (1985) 7 Cr. App. R. (S) 142 @ 145.