ROYAL COURT
(Samedi Division)
29 May 1998
Before: FC Hamon Esq., Deputy Bailiff
and Jurats Potter and Quérée
AG
-v-
David Samuel Ogilvie
1 count of larceny (count 1)
1 count of fraudulent conversion (count 2)
Age: 28
Plea: Guilty
Details of Offence:
OGILVIE stole a number of cheques from his wife which he later used forging his wifes signature and on one occasion impersonating her voice on the telephone to her bank. This was the offence detailed in count 1. The offence of fraudulent conversion in count 2 was a breach of trust as an employee. OGILVIE had been entrusted with a signed cheque and the chequebook of his employer. He fraudulently made out a cheque in favour of his wife in the sum of £13,122.00 which he paid into his wifes bank account. He then arranged to draw out £6,000.00 in cash and also bought furniture costing nearly £1,000.00. He claimed that the money had been obtained by a win at gambling.
Details of Mitigation:
A highly relevant fact was that OGILVIEs mother had died in November, 1997, which may have acted as a trigger to the offences. It was almost three years since his last offence. He suffered from a personality disorder and pathological gambling. Furthermore, he had been under pressure to repay gambling debts and had applied £5,400.00 of the money obtained for that purpose. There were, therefore, exceptional circumstances to justify a non-custodial sentence or the latter should be imposed as an act of mercy.
Previous Convictions:
Offences between 1993 and 1995 both in Jersey and in the United Kingdom. These included larceny of cash, forgery of a cheque and uttering a forged instrument valued £1,250.00. Obtaining services by deception and larceny as a servant of some £900.00 and fraudulent conversion.
Conclusions:
count 1: 1 months imprisonment
count 2: 18 months imprisonment, concurrent
Sentence and Observations
of the Court:
Conclusions granted. Both offences constituted breaches of trust but the second was far more serious. The accused had woven an intricate web of deceit. The Court was particularly disturbed at the accused imitating his wifes voice on the telephone to the Bank to obtain £6,000.00 in cash. There were no exceptional circumstances which would justify a non-custodial sentence.
JGP Wheeler Esq., Crown Advocate
Advocate NJ Chapman
JUDGMENT
THE DEPUTY BAILIFF: The two counts to which Ogilvie has pleaded guilty stem from his having stolen originally five cheques from his wifes cheque book and then later, having used his employers cheque book, to pay £13,000 into his wifes bank account at the Midland Bank. Both offences were breaches of trust. The second, of course, is more serious than the first because in the second his employer signed a blank cheque and in giving him the cheque book told him to collect some lychees and pay approximately £2.00 to complete the order. That led to his writing the signed cheque in the sum of £13,122.00 whilst the stub was marked £2.15 to confuse the employer. When the cheque book was returned to the employer, who had trusted Ogilvie completely, obviously no more was thought about it. Even had he not had that opportunity the cheques stolen from his wife and drawn for furniture and other matters, and for the motor car, would have led, no doubt, to his discovery in any event. What has disturbed us is the way that he weaved an intricate web of deceit. He manufactured a betting slip with false winnings endorsed on it to the amount of the cheque. He used the money to pay off two acquaintances, he says, in London to whom he apparently owed money. That may or may not be true; there is nothing to verify that his trip to London to pay off that debt took place. The arrangements for the purchase of the new car was stopped by Ogilvie himself. What is most disturbing to us is that in order to convince the Midland Bank that the money in the account was his wifes he pretended to transfer a telephone call from the bank to her and imitated her voice on the telephone. He had taken one of the stolen cheques for £6,000 to the bank with a letter forged by him and purporting to be from Mrs Ogilvie. That letter said that she had had an accident and was unable to attend the bank.
Mr Chapman has said all that can be said but gambling like alcoholism is a disease and it always has its tragic consequences. We can see no exceptional circumstances in this case. The fact that he is addicted to gambling, that he suffered the sad loss of his mother, that he was under pressure to repay his gambling debts do not, in our view, give us legal grounds to find exceptional circumstances in this case. We have to say that the guidelines in Pagett -v- AG (1984) JJ 57 CofA are perfectly clear and serious breaches of trust - although this is in the middle range of offences - where an employee has full confidence reposed in him by his employer, will always, in the absence of exceptional circumstances, be met with a term of imprisonment. And therefore, stand up, Ogilvie, we follow the conclusions of the Crown, you are sentenced to one month on count 1 and to 18 months’ imprisonment, concurrent, on count 2.
Authorities
A.G. -v- Hartley (14 December 1990) Jersey Unreported
A.G. -v- Lloyd (3 July 1986) Jersey Unreported
A.G. -v- Jeune (4 August 1993) Jersey Unreported
Pagett -v- A.G. (1984) JJ 57 Cof A
A.G. -v- Picot (29 May 1990) Jersey Unreported