Jersey Unreported Judgments

2000/188

3 pages

 

 

ROYAL COURT

(Samedi Division)

 

22^nd September, 2000

 

Before:    Sir Philip Bailhache, Bailiff and

                                                      Jurats Rumfitt, Tibbo.

 

 

The Attorney General

 

-v-

 

Marco Paulo Baptista Varela

 

1 count of larceny by finding (count 1);

                 

1 count of  larceny (count 2).

 

 

Age:     30

 

Plea:    Guilty

 

Details of Offence:

 

Defendant, painter and decorator, was employed to paint the exterior of the victim's house.  Whilst the victims' were on holiday the defendant found a cash point card and a document giving the pin number of that card in the garden of the property (count 1) and then subsequently used the cash point card to withdraw £16,340 from cash dispensers at a St Helier bank.

 

Details of Mitigation:

 

After initial denial, pleaded guilty (having been confronted with CCTV evidence).  Not a true employee of the victim, more in the nature of an independent contractor .  There was a breach of trust but not perhaps as high as that of a full time employee.  Offences took place over a two month period involving 71 cash withdrawals.  Defendant would never have been able to operate the card if the card and pin number had not been found together.  Pity that checks not carried out so that he would have been apprehended earlier.  Defendant unable to understand the gravity of the offence.  Defence Counsel suggested that defendant could be dealt with by way of a non custodial sentence on the basis that the defendant was keen to work and to compensate the victims.  Defence counsel was instructed that one of the victims has agreed that if Varela were not incarcerated then Varela would repay the debt due at the rate of £400 per calendar month.  If placed in custody his business would suffer and he would be unable to pay compensation.

 

Previous Convictions:    One conviction for false pretence (£500 and sentenced to probation with 90 hours community service).     

 

Conclusions:

 

Count 1:   1 month's imprisonment;

Count 2:   18 month's; concurrent.

                                                                                                   

Sentence & Observations of Court:  

 

Conclusions granted.

Gross breach of trust.  Conclusions sought Crown entirely appropriate.  Reject alternative means of dealing with defendant  proposed by defence counsel.

 

                                                                          

 

 

                                              P. Matthews, Esq., Crown Advocate

                                     Advocate Mrs. S.A. Pearmain for the Accused.

 

 

JUDGMENT

 

1.         THE BAILIFF:    This was a gross breach of trust where a credit card which had been stolen was used over a period of two months to withdraw significant sums of money from a bank account.   We have given careful consideration to the alternative means of dealing with this case put forward by Counsel but we have reached the clear conclusion that this defendant deserves to be punished for the offence which he has committed.   We think that the approach of the Crown Advocate is entirely correct.

 

2.         The conclusions are granted and, Varela, you are sentenced on count 1 to one month's imprisonment; and on count 2 to 18 months' imprisonment, concurrent; making a total of 18 month's imprisonment.

 

Authorities

 

A.G. -v- Le Monnier (28^th June, 2000) Jersey Unreported.

A.G. -v- Durkin (7^th August, 1998) Jersey Unreported.

A.G. -v- Hamon (22^nd May, 1998) Jersey Unreported.

Huchet -v- Attorney General (1999) 1 Cr. App. R (S) 189.

A.G. -v- Thorne & Anor. (1^st November, 1996) Jersey Unreported.

A.G. -v- Sheldon (8^th November, 1996) Jersey Unreported.

Whelan: Aspects of Sentencing in the Superior Courts of Jersey. pp. 53-63.

Ibid: Noter Up: May 1996: pp. 23-25.