Jersey Unreported Judgments

[2007]JRC023

ROYAL COURT

(Samedi Division)

2^nd February 2007

Before     :

M.C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Bullen, and Clapham.

The Attorney General

-v-

David Samuel Ogilvie

And

David Charles Brockwell

Sentencing by the Inferior Number of the Royal Court following a guilty plea to the following charges:

David Samuel Ogilvie

9 counts of:

Larceny.  (Counts 1-9).

Age:  36

Plea: Guilty.

Details of Offence:

Ogilvie was employed as a delivery driver for a shipping company, Huelin & Renouf.  Over a period of time he stole part of the consignments received by his employer.  He stole items which were readily disposable such as mobile phones, digital cameras, CD's, DVD's, trousers, computer games and a computer tower.  The items were sold at car boot sales or around the pubs.  Various stolen property was found at his home address.  He claimed that he stole to fund his gambling addiction.  The property stolen covered by Counts 1-9 had a value in excess of £11,000.  He also gave some of the stolen property to his wife's uncle and now co-accused Brockwell for him to sell on his behalf.  The Crown's approach to sentencing was that this was a clear breach of trust offence and that, in keeping with the Court's consistent policy, a custodial sentence was the inevitable sentence given that there were no "exceptional circumstances" available to Ogilvie.  It was also the Crown's position that offences of larceny and receiving stolen property were not susceptible to the "starting point" approach as used in drug trafficking offence cases.  Sentencing had to be considered in the round.

Details of Mitigation:

The Crown did not view Ogilvie's gambling as a mitigating factor.  Nor was it viewed as amounting to "exceptional circumstances".  Ogilvie did have mitigation in the form of his guilty pleas which were entered into at an early opportunity.  He was co-operative with Police in interview and made full admissions as to the amount of property he had stolen from the care and custody of his employer.  He was not a young offender nor a first offender.  His record consisted of a variety of offences of dishonesty including previous offences for breach of trust or larceny as a servant.

The Defence did not challenge the view that a custodial sentence was appropriate.  However, it contended that any custodial sentence should be suspended.  The principal reasons for this were the interest of the public at large in addressing Ogilvie's gambling addiction which was at the route of his problems and also a suspended sentence would enable him to continue to support his family.  It was suggested the prison had not worked in the past and, therefore, unless the underlying issue of his gambling addiction was addressed then there was a substantial risk of him re-offending.  There was the new initiative being the Community Counselling Project which would assist in him overcoming his gambling addiction.  It would also provide assistance with financial planning for his family given that Ogilvie had gambling debts of £26,000.  The Defence identified the following mitigating factors:

Guilty plea.

Matters raised in the Social Enquiry Report.

Good work record and an excellent father.

Remorse.

Health problems and motivation to change i.e. to overcome his gambling addiction.

A letter from Mrs Ogilvie was handed up.

Previous Convictions:

He had 5 convictions for a total of 13 offences all involving fraud or larceny or other forms of dishonesty.  He had previous offences for breach of trust and/or larceny as a servant.

Conclusions:

Count 1-9:

2½ years' imprisonment, concurrent on each Count.

The Crown sought Compensation Orders on behalf of some of the victims against both Ogilvie and Brockwell.

Sentence and Observations of Court:

Count 1-9

240 hours Community Service Order.  2 year Probation Order with condition to attend the CCP as long as directed by Probation Officer.

Ogilvie has stolen property from his employer over a period of time with an approximate value of £11,000.  It was a clear breach of trust case and he had previous offences of dishonesty.  The Court had regard to his guilty plea, co-operation and remorse.  The Court had read the Social Enquiry/Psychiatric/ Psychology and the Gambling Reports.  He should be very grateful for his wife's letter.  The clear policy of the Court in such cases was to go to prison.  However, the Court had a very difficult decision but it had been persuaded that his was an exceptional case and that the public interests were best served by not imposing a custodial sentence.  However, the Court was not going to suspend the sentence as requested by Defence Counsel as it did not consider such a sentence appropriate.  Instead it was going to impose a period of Community Service.

Sentence for Ogilvie:  240 hours Community Service with an alternative prison sentence of 2 years.  He was also placed on Probation for 2 years with a condition that he attends at the Community Counselling Project and abides by their directions.  He should consider himself exceptionally fortunate and if he failed to comply with the Community Service or the conditions of the Probation Order then he would be returned before the Court and would go straight inside.  The Court, in the circumstances, did not consider it appropriate to make any Compensation Orders.

David Charles Brockwell

19 counts of:

Receiving stolen property.  (Counts 10-28).

Age:  44

Plea: Guilty.

Details of Offence:

Brockwell was provided with various stolen property by Ogilvie.  He mainly sold the stolen property to fellow employees or workmates.  He sold a total of 21 mobile phones, 6 digital cameras, and an unknown quantity of aftershaves, perfumes and computer games.  A small amount of stolen property was found at his home address together with a price list for selling on aftershaves etc.  The vast majority of the sale proceeds were given to Ogilvie but Brockwell kept some of the money for himself which he described as "beer money".

Details of Mitigation:

In the Crown's view, Brockwell had mitigation available to him in the form of guilty pleas entered at an early occasion.  He had been fully co-operative in interview and provided a list of the persons to whom he had sold mobile phones.  He did not have youth as a mitigating factor but he did not have a substantial criminal record and the Crown was prepared to treat him as a first offender and, therefore, a man of good character.  He expressed regret and remorse for his behaviour.  He was characterised as being at low risk of re-offending.

The Defence agreed with the Crown's Conclusions for a non-custodial sentence for Brockwell.  The Defence emphasised that Brockwell had not been involved in the original larceny and the total items that he had received and sold on were or relative low value in comparison to the total amount of property stolen by Ogilvie i.e. £2,000 in total.  He had made very little profit for himself.  His employer had given him a written warning but remained happy with his work and there were character references in support.  He had been exceptionally co-operative and to some extent had written his own Indictment.  The Defence suggested a Community Service Order but at a lower level than that suggested by the Crown.

Previous Convictions:

1 offence of criminal damage and 1 offence of speeding.  Both were historical in nature and the Crown viewed Brockwell as a man of good character.

Conclusions:

Count 10-28:

A Community Service Order of 240 hours, concurrent on each of those Counts.  The custodial alternative would be a prison sentence of 18 months, concurrent on each Count.

The Crown sought Compensation Orders on behalf of some of the victims against both Ogilvie and Brockwell.

Sentence and Observations of Court:

Count 10-28

180 hours Community Service Order.

He had received a number of mobile phones and other items which he had sold on.  The proceeds that he had actually received were small.  The Court agreed with the Crown that Community Service was the right sentence.  The correct sentence in the view of the Crown was a 12 months' prison sentence and, therefore, it was going to impose a Community Service Order of 180 hours.  Brockwell was given a warning as to his future conduct and the consequences were he to fail to comply.  Once again the Court did not consider it appropriate to make a Compensation Order but any of the victims were entitled to bring civil proceedings in the usual way for their losses.

J. C. Gollop Esq., Crown Advocate.

Advocate S. E. Fitz for Ogilvie

Advocate J. Grace for Brockwell.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr Ogilvie, you stole property from your employer over a period of months and the total value of the property you stole was in the region of £11,000.  It was a clear breach of trust and furthermore you have previous convictions for dishonesty.

2.        In mitigation Miss Fitz has mentioned your guilty plea, your co-operation and your remorse, all of which we accept.  In particular we have read, very carefully, the background report, the psychological and psychiatric reports and the report from the Community Counselling Project.  Furthermore, you can be very grateful for the letter from your wife, which is an impressive document, and for all that Advocate Fitz has said, very eloquently, on your behalf.

3.        The clear policy of the Court is that for offences like this people go to prison.  As you can tell from the time the Court has been in retirement we have found this a very difficult decision.  In the end, we have been persuaded that it is an exceptional case and we think the public interest will be best served by your overcoming your gambling addiction.  We are, in fact, not going to go with counsel's suggestion of a suspended sentence.  We think that a more appropriate way to deal with the problem is as follows.  You will undertake 240 hours of community service, and we say that the equivalent prison sentence we would have had in mind would be 2 years; we are also going to place you on probation for 2 years and there is a condition attached to that, that you attend the Community Counselling Project in relation to your gambling as long as you are directed to do so by the Probation Office.

4.        You can consider yourself extraordinarily fortunate.  If you fail in any way to respond to probation, if you do not do what they say, if you do not turn up to the counselling projects, if you do not do the community service or, of course, if you re-offend, you will be back here and you will be going to prison.

5.        As to a compensation order, we think, given the enormous debts which you have, it would not be right to make a compensation order.

6.        Mr Brockwell, you received a number of mobile telephones from Ogilvie, together with some other items, and you sold these on.  Admittedly, your share of the proceeds was small.

7.        The Crown has moved for a sentence of community service and we agree that that is the right sentence having regard to all the mitigation which has been made available to us.  We think that the correct prison sentence, in your case, would have been one of 12 months, and, therefore we agree with your counsel that the appropriate period of Community Service is 180 hours.

8.        What I have just said to Mr Ogilvie, of course, applies equally to you.  If you slip up in any way in performing that Community Service, you will be brought back here, and sentenced.

9.        As to a compensation order, we have considered that carefully, but we think in all the unusual circumstance of this case it would not be right to make a compensation order.  That does not, of course, prevent any person from bringing civil proceedings in the ordinary way.

No Authorities