Jersey Unreported Judgments

[2003]JRC120

ROYAL COURT

(Samedi Division)

11^th July 2003

The Attorney General

-v-

Sunrise Resources Limited

Plea:    Facts admitted.

Details of Offence:

On the 7^th August, 2002, the Company submitted an application for a licence for a new undertaking.  The Company's new undertaking was the restaurant ("The Beach House") and had in fact already commenced business on 27^th July, 2002, with 14 staff, 10 of whom were not residentially qualified for the purposes of the 1973 Law.  On the 9^th October, 2002, the Industries Committee granted permission in respect of the commencement of the undertaking and the engagement of 14 staff, 6 of whom were required to be residentially qualified.  The premature commencement of the business formed the basis of charge 1.

In consequence of the investigation into the breach of the 1973 Law, Officers from the Housing Department were asked to ascertain whether the occupation of the premises leased by the Company to a number of non-residentially qualified persons (as staff accommodation) was lawful.  The company had been granted consent to lease properties on the 30th August, 2002, provided the rooms were occupied either by persons qualified under the Housing Law or in respect of three rooms by staff at the restaurant.  An Enforcement Officer from the Housing Department visited the premises and found that the rooms were all occupied by persons without qualifications and therefore in breach of the conditions of the consent previously granted.  A Director and shareholder in the Company were interviewed by the Housing Enforcement Officer and the Director confirmed that he was familiar with the Housing consent form and the Housing Conditions in respect of the two premises.  It had been the intention of the Company to renovate the rooms and to re-apply to Tourism to conduct the business as a Guest House.  However, it had been too late in the season to do this.  A decision had therefore been made to use the rooms to house staff members in respect of the 3 restaurants owned by the Company.  The Company did not receive any rental from the occupants as accommodation formed part of their employment package.  Following the investigation the position had been regularised by the Company.

Details of Mitigation:

The Crown noted that the Company had entered guilty pleas and was co-operative during the investigations.  There was no record of offending.  The company had other businesses and therefore it should have been aware of the requirements regarding the commencement of a new undertaking.  Equally, it was aware of the restriction on occupancy of its premises.  The occupancy of the rooms was however only for several months and it was accepted that the occupants were all staff receiving a remuneration package that included accommodation.  The action of the Company showed a disregard for the Housing Law in circumstances in which the Law did not complement the Company's re-development programme.

The defence contended that there was no real mitigation to offer and was not putting forward any excuses.  The offence against the 1973 Law had been committed in consequence of a mistake as to who was responsible for submitting the application.  The men behind the company were businessmen in their own right but they did not have any prior involvement in the tourist industry.  They had decided that the Gorey area was tired and run down and had decided to invest monies to revive tourism in the area.  Letters of reference were handed up.  The Company's intention to turn one of the properties back into a guest house was confirmed and the use of those premises for unqualified staff was a short term measure due to the difficulty in obtaining and keeping staff in the area.  It was confirmed further that there were now safeguards in place to ensure that there would be no repetition of any of these offences.

Previous Convictions:

None.

Conclusions:

Total: £7,000 fine; £750 costs.

Sentence and Observations of Court:

Total £5,000 fine; £750 costs.

The defendant was well versed in matters concerning the running of a new business as it owned three restaurants.  The Housing infractions might be regarded as a cynical attempt to avoid the terms of the consent.  However, the Court would not wish to discourage investment in tourism.  The Crown had followed the case of A.G. -v- Racebets.  In the view of the Court, these offences had been committed by way of omission and not comission.  The Court concluded that the Crown's conclusions might be considered a little high and therefore imposed fines as above.

Mrs S Sharpe, Crown Advocate.

Advocate N.M. Santos Costa for the Defendant Company.

JUDGMENT

THE COMMISSIONER:

1.        The Company is well versed in the administrative problems that companies face in Jersey.  They own the Castle Green Restaurant, The Beach House Restaurant and the Shiva Restaurant.  There may have been an oversight in the case of the Regulation of Undertakings and Development Law, but the Housing Infractions might be regarded as a cynical attempt to assist the development programme of the Company. 

2.        We would not wish to discourage tourism development and we appreciate that in sentencing the Crown has presumably followed the case of A.G. -v- Racebets (9^th July, 1999) Jersey Unreported; [1999/123C], but looking at it overall we have come to the conclusion that this was really, particularly on the first charge, a crime of omission and not co-mission.  We feel that the Company must be punished, but the fines sought are on the face of it a little high.

3.        We are therefore going to sentence the Company to £1,400 on the first count and £600 on each of the Housing Infractions, that makes a total of £5,000, as opposed to £7,000, but the costs of £750 must be paid.

Authorities

A.G. -v- Racebets (9^th July, 1999) Jersey Unreported; [1999/123C].

A.G. -v- Napoli Restaurant (16^th August, 1991) Jersey Unreported; [1991/113].