Jersey Unreported Judgments

[2006]JRC008

ROYAL COURT

(Samedi Division)

20^th January 2006

The Attorney General

-v-

Nicholas John Howard

Sentencing by the Inferior Number of the Royal Court, on guilty plea to:

Age:  43.

Plea: Guilty.

Details of Offence:

Over a period of approximately 2½ years the Defendant converted £106,866.40 of money belonging to a client of his employer, Caversham Fiduciary Services Limited, to his own benefit.  Defendant was a Senior Manager in a trust company.  Client was a 72 year old gentleman whom he knew well.

Details of Mitigation:

Defendant had repaid bulk of converted funds to Caversham before committal proceedings.  Balance paid in full by date of sentencing.  Remorse.  Guilty plea.  Good character.  Co-operated and assisted with police in tracking stolen funds.

Previous Convictions:

None.

Conclusions:

2 years' imprisonment.

Sentence and Observations of Court:

Caversham sought a Compensation Order in respect of monies it claimed it had expended in fee-earner's time in assisting with the police investigation, together with its legal fees.  Crown had already indicated it viewed a Compensation Order as in appropriate.  Advocate Stephen Baker presented the application on behalf of Caversham:  It was opposed by Defendant's Counsel.  Court declined to make a Compensation Order for reasons set out in the judgment.

Mrs S. Sharpe, Crown Advocate.

Advocate J. C. Gollop for the Defendant.

JUDGMENT

THE BAILIFF:

1.        This Defendant is to be sentenced for the fraudulent conversion of £106,866.40 entrusted to his employer.  He was employed in a senior managerial position in a trust company with responsibility for about 100 clients.  It was the money of one of those clients, an elderly man known to the defendant, which was fraudulently misappropriated.  This was, therefore, a serious breach of trust and was an offence aggravated by the potential damage to the Island's reputation as a finance centre of probity.

2.        The defendant justified the defalcations, which took place over a period of 2½ years, to himself as a form of loan, but there is no doubt that this was a dishonest conversion.

3.        In mitigation the defendant drew the attention of his former employer to the fraud after losing his job and was entirely frank and open at all stages of the police investigation and gave full assistance to the investigators.

4.        All the money in question has been repaid with the assistance of the defendant's family.  This is therefore one of those sad cases where a man of previous good character has destroyed his reputation and his future prospects as a result of greed.

5.        There is a low risk of re-offending.  The Court's policy in this type of case is, however, that a custodial sentence must be imposed unless there are exceptional circumstances.

6.        We have given very anxious consideration to the question whether the reporting of the offence and the writing of his own indictment amounted to such an exceptional circumstance.  We have concluded that it does not and that the Court must impose a custodial sentence to make it clear to others, particularly those working in the financial services sector that a custodial sentence will almost inevitably be imposed for breaches of trust of this kind.

7.        We have considered carefully all the submissions made very ably by defence counsel.  We think however, that the Crown Advocate has made the appropriate deductions for those mitigating factors.

8.        Howard, you are accordingly sentenced on the single count on the indictment to two years' imprisonment.

9.        We turn next to the application by Caversham Fiduciary Services Limited for a compensation order under the Criminal Justice Compensation Orders (Jersey) Law 1994.  The Crown has declined to move for such an order, but it has not been suggested that it is not open to Caversham to make this application. 

10.      Article 2 (1) of the law provides:

"Subject to the provisions of this Law, a court by or before which a person is convicted of an offence, instead of or in addition to dealing with the person in any other way, may, on application or otherwise, make an order (in this law referred to as a "compensation order") requiring the person to pay compensation for any personal injury, loss or damage resulting from that offence....".

11.      We think that there are several difficulties in the way of this application.  First, although we make no finding in this respect because we have not heard full argument, we have considerable doubt that the costs incurred by Caversham in investigating the fraud can properly be characterised as a loss resulting from the offence. 

12.      Secondly, it appears from English precedents that the courts in that jurisdiction have made compensation orders only in simple cases.  We think this is not a simple case, in that the amount of time expended in the investigation has been challenged by the defence and it would not be easy without detailed examination to determine whether particular hours of work could fairly be laid at the door of the defendant or not.

13.      Thirdly, in England the courts have also taken the view that a compensation order should not be made unless the sentencer is satisfied that the offender has the financial resources to pay the compensation, either immediately or within a reasonable time.

14.      We think these principles are also be to be applied in this jurisdiction.  In the exercise of our discretion we decline to make a compensation order and the application is therefore refused.

Authorities

Criminal Justice Compensation Orders (Jersey) Law 1994.