Jersey Unreported Judgments

2000/13

3 pages

ROYAL COURT

(Samedi Division)

 

25^th January, 2000.

 

Before:  Sir Philip Bailhache, Bailiff and

Jurats Potter and Allo.

 

 

The Attorney General

-v-

Andrew William Hill

 

3 counts of:  fraud  (counts: 1, 2, 3).

 

Age: 28.

 

Plea: Guilty.

 

Details of Offence:

 

Hill was the proprietor of a garage.  Count 1:  fraudulently obtained £14,943 from a finance company as a loan to acquire equipment which he never acquired.  Count 2:  acquired £2,400 from a finance company by purporting to sell to it a vehicle which was already the subject of a prior HP. Agreement.  Count 3: fraudulently obtained from a finance company £4,000 by purporting to sell to it a vehicle which was already the subject of a prior HP Agreement.  Deliberate fraud over six month period, including misrepresentation of an invoice and transposing of figures in finance documentation.  Guilty plea, though in respect of Counts 2 and 3 only a matter of days before trial.  Repayment by third party (family) not mitigation.

 

Details of Mitigation:

 

Had tried to set up business but could not compete with larger companies.  Had hoped to repay loans, but finance went from bad to worse.  Now en désastre.    Fiancée in poor health following difficult pregnancy, two small children ( two years and five months).  Family had repaid defrauded creditors.  Hill working and hoped to pay off other debts.  Had pleaded non-guilty to Counts 2 and 3 on legal advice.

 

Previous Convictions:   Some, including minor dishonesty, but nothing  as serious as the present offences.

 

Conclusions:

 

Count 1:  12 months' imprisonment.

Count 2:  12  months' imprisonment, concurrent.

Count 3:  12 months' imprisonment, concurrent.

 

Sentence & Observation of Court:

 

Count 1:  6 months' imprisonment.

Count 2:  6 months' imprisonment, concurrent.

Count 3:  6 months' imprisonment, concurrent.

 

Much will depend on circumstances whether restitution by third party is mitigation.  Family had clubbed together to repay, with understanding that Hill would reimburse family, therefore some evidence of remorse to be taken into account.  Deliberate fraud,  custodial sentence must be imposed.

 

 

The Solicitor General.

Advocate R.J. Renouf for the accused.

 

JUDGMENT

 

THE BAILIFF:  We deal, as a preliminary matter, with the submission made by counsel for the defendant as to the proper functions of the Attorney General.  The Solicitor General had submitted that restitution of monies made to the victim of a crime cannot generally go towards mitigation in the sentence of a defendant if that restitution is made by a third party.  Counsel submitted that it was not part of the prosecution's rôle to negate mitigation put forward on behalf of a defendant unless it contradicts the prosecution case.  We think that this argument is misconceived.  As Tomes DB said in Le Cocq -v- AG (1991) JLR 169:

 

"The rôle of the Attorney General in Jersey is traditionally far wider than that of the Director of Public Prosecutions in the United Kingdom.  The Attorney General is at customary law the partie publique and is so referred to in all the relevant criminal legislation.  The partie publique is something more than a mere Director of Public Prosecutions.  It is his function to safeguard the public interest in the widest sense.  This is not confined to criminal matters and in the criminal field is not confined to the conduct of particular criminal prosecutions."

 

The Attorney General's conclusions as "partie publique" must of necessity take into account such mitigation as appears from the papers or from information at his disposal.  If the Attorney General is aware of a point which is to be put forward by defence counsel in mitigation and the Attorney General considers that the point has no substance he is under a duty to say so.  In moving conclusions the Attorney General has to balance the aggravating and mitigating features of a case and reach a preliminary judgment as to the appropriate sentence.  He can only fulfil that duty by forming a view on the merits or otherwise of any points in mitigation.

 

As to whether in general restitution by a third party is a mitigating factor, much will depend in our judgment on the particular circumstances of the case.  At one extreme, where, for example, an accomplice makes restitution for his own purposes it will not amount to mitigation for the accused  at all.

 

In this case the family of the defendant, i.e. the father and his brothers, have clubbed together to repay the hire purchase companies who were defrauded, although not of course other creditors in the désastre of the defendant's business.  We were told by counsel that there is an understanding in the family that the defendant will repay his father and brothers in due course.  To that extent there is in our judgment some evidence of remorse and we take it into account in our deliberations.  We think that the defendant is fortunate to have members of his family standing behind him in this way.

 

Having said that there is no doubt in our minds that the defendant committed a deliberate fraud with his eyes open as to the likely consequences if he was caught.

 

We have given as much credit as it is possible to do to all the mitigating factors but in our judgment a custodial sentence must be imposed.

 

Hill, will you stand up, please.  On count 1, you are sentenced to 6 months' imprisonment; on count 2, you are sentenced to 6 months' imprisonment, concurrent; on count 3, you are sentenced to 6 months' imprisonment, concurrent, making a total of 6 months' imprisonment.

Authorities

 

 

A.G. -v- Wells (3^rd April, 1998) Jersey Unreported.

 

R. -v- Crosby & Hayes [1974] 60 Cr.App.R.234.

 

Hayden -v- A.G. (1985-86) JLR N.23.

 

A.G. -v- Smithson (3^rd December, 1999) Jersey Unreported.

 

A.G. -v- Godfrey (3^rd October, 1997) Jersey Unreported.

 

A.G. -v- Rulton (15^th October, 1999) Jersey Unreported.

 

Le Cocq -v- A.G. (1991) JLR 169.