ROYAL COURT
(Samedi Division)
3 June 1999
Before: FC Hamon Esq Deputy Bailiff and
Jurats de Veulle and Georgelin
AG -v- John Hamilton, Carlton Moody, Colin Streets
JOHN HAMILTON
Sentencing by the Inferior Number following guilty pleas entered on 22 January 1999 to:
4 counts ofconspiracy to defraud (counts 1,2,3,4);
15 counts of fraud (counts 5,6,7,8,9,10,11,12,14,15,16,17,19,20,21); and
1 count of fraudulent conversion (count 22).
Age: 51
Details of Offences:
Hamilton, Streets and Moody all employed by A.C. Mauger (Sunwin) Limited. Hamilton was contracts manager, Moody was site foreman and Streets was a Quantity Surveyor. All three were employed on the ‘Continental Site’, St.Saviour’s Road, St. Helier, a contract with the States of Jersey with a value of over £7 million. All three Defendants were in positions of trust.
Hamilton and Moody conspired together to deploy a labourer paid by the Company to work at Moody’s house (loss to the company £2,307.68). Hamilton admitted conspiring with Streets to defraud the company by submitting false time sheets containing details of fictitious employees, making claims for wages to which employees were not entitled and then keeping the wages generated by such time sheets for himself (£63,848.49). Hamilton also admitted conspiring with Streets to defraud the States of Jersey Housing Committee by submitting increased cost applications on behalf of the company on which Labour charges had been artificially inflated (£2,672.54). At Christmas 1994 A.C. Mauger sent Le Riches Christmas Bonus Vouchers to the site so that Hamilton could distribute these to his fellow employees. Hamilton did not distribute them and kept them for himself (£100).
The frauds took place over a period of 10 months.
N.BStreets pleaded not guilty to the charges and at Criminal Assize on the 19th April, 1999 was acquitted of 2 counts of Conspiracy to Defraud but convicted of Conspiracy to Defraud the Housing Committee of £1,506.46.
This was a complex fraud for which the only motivation was greed. Hamilton was well paid. Stealing employees’ Christmas vouchers was a particularly mean offence.
No restitution had been made.
Details of Mitigation:
Delay in bringing matter to trial. Plea of Guilty. Co-operated fully with Police. Gave evidence at the Assize trial against Streets. No previous convictions. Had young family and was having treatment for cancer. Currently employed again in the construction industry.
Previous Convictions: None.
Conclusions: 2½ years’ imprisonment on each count, concurrent.
Sentence and Observations of the Court: 1 year’s Probation, 240 hours’ community service. Worst offender, influenced others. Serious breach of trust. Delay of 3 ½ years between offence and trial is an exceptional circumstance on basis that "justice delayed is justice denied".
CARLTON MOODY
Sentencing by the Inferior Number following guilty pleas entered on 22 January 1999 to:
1 count of conspiracy to defraud (count 1);
1 count of receiving (count 23).
Age: 35
Details of Offences:
Moody and Hamilton conspired to use A.C. Mauger’s employees to work at Moody’s House and Moody received money from Hamilton generated from false wage claims for fictitious employees (£9,414.04).
Details of Mitigation:
Family Man, guilty plea, easily led by Hamilton. Not prime mover. Remorse. Also currently employed again in the construction industry. See above under delay.
Previous Convictions: None.
Conclusions: 18 months’ imprisonment, concurrent, on each count.
Sentence and Observations of the Court: 1 year’s Probation, 180 hours’ community service.
COLIN STREETS
Sentencing by the Inferior Number, following not guilty pleas entered on 22 January 1999 to:
3 counts ofconspiracy to defraud (counts 2,3,4) and following conviction at the Criminal Assize on 21 April 1999 on count 4, and acquittal on counts 2 and 3.
Age: 42
Details of Offences:
Streets worked as a Quantity Surveyor for A.C. Mauger. Defrauded States of Jersey Housing Committee by inflating increased cost applications. (£1,506.46). No co-operation. Pleaded Not Guilty.
Details of Mitigation:
Young family. No previous convictions. Loss of professional integrity. No personal gain for offence. Had found employment in construction industry.
Previous Convictions: None.
Conclusions: 6 months’ imprisonment.
Sentence and Observations of the Court: 1 year’s Probation, 120 hours’ community service.
D E Le Cornu Esq Crown Advocate
Advocate S E Fitz for J Hamilton
Advocate D M Sowden for C. Moody
Advocate J G P Wheeler for C Streets
JUDGMENT
THE DEPUTY BAILIFF: The temptation for malpractice in a development contract worth some £7,000,000 is patent. Mr. Wheeler for Streets has referred to a culture of criminality endemic at the ‘Continental’ site. These were serious breaches of trust by those well able to manipulate that system. Each of the accused had significant responsibilities. Hamilton had to ensure that the contract was completed on time. Streets was in control of the finances and Moody was a senior employee of the company.
Building contractors have to rely on the honesty and integrity of their senior employees. These are well remunerated for their technical expertise and there appears in this case - from what we have heard of it - a transparent cynicism to transcend honest dealing. Whether this culture prevails elsewhere in the building industry is not a matter for this Court.
We have been referred to R -v- Barrick (1985) 7 Cr.App.R.(S) 142, heard in the English Court of Appeal where guidelines were given for cases such as this. Barrick has been approved several times in these Courts. In that judgment Lord Lane made several comments and we need to cite two of them:
In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small. Despite the great punishment that offenders of this sort bring upon themselves, the Court should nevertheless pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence. The sum involved is obviously not the only factor to be considered, but it may in many cases provide a useful guide."
Lord Lane then went on to say this:
"The following are some of the matters to which the Court will no doubt wish to pay regard in determining what the proper level of sentence should be: (i) the quality and degree of trust reposed in the offender including his rank; (ii) the period over which the fraud or the thefts have been perpetrated; (iii) the use to which the money or property dishonestly taken was put; (iv) the effect upon the victim; (v) the impact of the offences on the public and public confidence; (vi) the effect on fellow-employees or partners; (vii) the effect on the offender himself; (viii) his own history; (ix) those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police."
We will deal first with Streets, who faces only one count on the indictment. He is a chartered builder with similar qualifications to a quantity surveyor and he was responsible for certifying increased costs of £1,506.46. To say - as he appears to have said to the police -"I call it business, you call it fraud" is indeed a sorry indictment, if that is what he felt his duties and responsibilities to be. But like his two co-accused, Streets has a young family and like his co-accused he has brought great suffering to them. He has no previous convictions and has clearly suffered great personal stress, particularly over what he considers to be the loss of his professional integrity. As was said in the Probation Report, on a small island he may never salvage his reputation.
The Crown has recognised the comparatively minor part played by Streets by the conclusion that he go to prison for six months. We might, in the light of the personal circumstances and the other particular matters of mitigation have reduced that term were it not for a matter which will apply to all the accused. For reasons which are still not fully clear to us but which, on a time basis, are incontrovertible it has taken over 3½ years to bring this matter to a conclusion. We have had regard to the case of Sinclair -v- AG (6th July, 1995) Jersey Unreported CofA. In that case the Court of Appeal, referring to a delay of two years, said this:
"Such periods of delay are bound to add to the anxiety and stress of those faced with criminal proceedings."
Street, will you stand up, please. We have decided in those circumstances to put you on unsupervised probation for one year and you will serve 120 hours’ community service in that time.
The cases of Hamilton and Moody we do not view in quite the same light. Moody has had four employees of the company working on his house (count 1) and he falsely believed that he was entitled to what is called ‘perks’ but was in fact receiving payment made to a fictitious employee. He took some £7,106.36 from Hamilton who also benefited from that fraud. Moody knew full well that the money had been generated by a false time-sheet and that the employee named as David Collins did not exist. Again, we have to say that the stress and anxiety which Moody has brought upon himself and his family is apparent in the personal documents which we read during our long retirement. In all we have to recall that Moody took £9,414.04 from the company that employed him.
Hamilton is by far the worst offender and we take the view that he influenced the other two. He was in charge of the site and if there were endemic criminality, as Mr. Wheeler has suggested, then that reflects in our view on the man in overall control of the project. We have seen disturbing letters from his general practitioner and concerning the health of Mrs. Hamilton. They make for sad reading but we can only surmise as to what might have happened if these long series of crimes had not been discovered. The letters written to us by Mrs. Hamilton imply the misery that crimes such as these, when discovered, bring upon innocent members of the family.
However we look at Hamilton’s behaviour and however we are moved by his present personal circumstances we must remember that his motivation was greed and taking the Christmas vouchers from employees merely shows the depths to which this hitherto honest man had sunk.
We could not see an alternative to a prison sentence but we must have regard once again to the delay to which we referred. This has been a punishment in itself particularly as both Hamilton and Moody have re-established themselves in employment.
We have to consider what is meant by exceptional circumstances and clearly matters such as good character, or an early plea of guilty, or co-operation with the police, cannot constitute exceptional circumstances as they are common features in many criminal cases, but in our view, a delay of 3½ years - for whatever reason - from arrest in October, 1995 to sentence in June, 1999 is and must be an exceptional circumstance. We recall that this Court is a guardian of public opinion and in normal circumstances these offences would inevitably, and very rightly, have led to a long period of imprisonment. As counsel has said to us this morning, ‘justice delayed is justice denied’. We will not follow a course in which the two accused, though richly deserving imprisonment, would after all the personal and real family stress which they have suffered over this time, emerge from prison some five or six years after the offences had been committed.
Hamilton and Moody, will you stand up, please. Hamilton, we are sentencing you to one year’s Probation and 240 hours’ community service. Moody, you are sentenced to one year’s Probation and 180 hours’ community service.
Authorities.
R -v- Barrick (1985) 7 Cr.App.R.(S) 142.
AG -v- Sproule (10th January, 1992) Jersey Unreported.
AG -v- Ryall (14th October, 1994) Jersey Unreported.
AG -v- Cooper (6th February, 1998) Jersey Unreported. [1998.024]
AG -v- Sinclair (30th January, 1995) Jersey Unreported.
Sinclair -v- AG (6th July, 1995) Jersey Unreported CofA.