Jersey Unreported Judgments

[2007]JRC192

ROYAL COURT

(Samedi Division)

5^th October 2007

The Attorney General

-v-

Louise Mary Martha Bernadette Bracken-Smith

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

Age:  34.

Plea: Guilty.

Details of Offence:

a) In 1997 Mrs Bracken-Smith purchased 6 Gorey Pier, the occupation of which property is regulated under the Housing Law.  The property is a three storey terraced dwelling categorised at all times as one unit of accommodation.

b) In 2007 Housing Department's enquiries established that in 2003 consent had been issued to Mrs Bracken-Smith and her husband to purchase and live at a property in St Mary but since 1997 there had been no application for a qualified person to live at 6 Gorey Pier.

c) In May 2007 the Housing Department established three non-residentially qualified persons, Mr Wallder, Mr Cooke and Mr Phoenix were each occupying a room within the property and paying rent direct to Mrs Bracken-Smith.  They confirmed that they had known a total of up to five people to live in the property on occasion.

d) In interview, Mrs Bracken-Smith admitted that she had vacated the property in January 2003 since when various lodgers, some she believed were residentially qualified (but did not check this) and some unqualified, had lived in the property but no lease with a residentially qualified person was ever entered into.  A list of lodgers' names was supplied and it was confirmed that the property could house up to six lodgers.  Mrs Bracken-Smith explained that she had not realised the property should have been rented to a qualified person under a short term lease approved by the Housing Minister and that an authorised person is then required to be the landlord to any lodgers.  Rent of between £80,000 and £100,000 was estimated to have been received.  Mrs Bracken-Smith estimated receiving of between £80,000 and £100,000 gross from lodgers since January 2003.  Mrs Bracken-Smith then apologised and explained that she had rectified the situation: lodger Cooke now pays Wallder, lodger Phoenix was leaving anyway and Wallder was submitting a formal application to Housing for a short term lease for the property.  In fact only days before sentencing was an application for consent in respect of a short term lease submitted.

Details of Mitigation:

Mrs Bracken-Smith is aged 34 years and a chartered accountant.  The infractions were under the mistaken belief that it was sufficient merely to have one qualified person renting the property but there was no evidence before the Court that any lodger had housing qualifications.  The terms of the lease had now been agreed with the tenant Wallder and submitted for consent.

Previous Convictions:

None.

Conclusions:

Total: £11,500 fine or 11 months' imprisonment in default of payment.

Costs incurred in the sum of £2,000.

Sentence and Observations of Court:

Total: £25,000 fine or 10 months' imprisonment in default of payment.

Costs incurred in the sum of £2,000.

28 days to pay.

The infractions were not deliberate but the defendant had shown a high degree of negligence in failing to ascertain what her obligations were under the Law.  The defendant had not even ensured that any of her tenants had housing qualifications  The property is a family home, a local family has been deprived from occupying to the defendant's financial benefit.  The defendant had received more rent from non-qualified persons and so had made an illicit profit, which had to be taken into account by the Court.

"The purpose of the Law is clear; to provide accommodation to qualified persons and the Court should punish offences and make it clear to others that compliance with the Housing Law that compliance is important."

B. H. Lacey, Crown Advocate.

Advocate J. M. P. Gleeson for the Defendant.

JUDGMENT

THE BAILIFF:

1.        This defendant has admitted infractions of the Housing (Jersey) Law 1949 (as amended) by failing to comply with a condition attached to a consent for the purchase of a property on Gorey Pier, requiring that the property should be let to a person, or persons qualified under regulations 11A-J. 

2.        The property was acquired in 1997 and occupied by the Defendant herself until 2003 when she vacated it.  The defendant knew that the property should be occupied by qualified persons but assumed, we are told by Counsel, that the different persons to whom she had let parts of the property, or at least one of them, had such qualifications.  We accept that the Defendant did not deliberately set out to break the Housing Law, nor did she intend to make an illicit profit from letting the property to unqualified persons at rentals higher than the market rate.  The reality is, however, that she did receive more in rentals from those to whom she let the property, than she would have received had the property been let to a qualified person, as was required by the form of consent.  There was what was described in AG v Muren and Peter [2000] 166, as some illicit profit and we have taken that into account in the fines at which we have arrived.

3.        Defence Counsel sought to persuade us that at certain points during the four years in these infractions took place there was a qualified person in the premises, even if the property had not been let to that person.  We have no evidence before us that any occupier during this period was in fact qualified under the Housing Law and Regulations.  Having said, and accepted, that there was no deliberate intention to break the law, we think that there was a high degree of carelessness, or negligence, on the part of the defendant in failing to ascertain precisely what her obligations were.  She is a successful, professional person of previously impeccable character, which makes the offence all the more surprising.  However the object of the legislation is clear.  It is to preserve, so far as is possible in a crowded housing market, certain accommodation for those who are qualified under the Regulations to occupy it.  We have to punish the defendant, not only for the offences that she has committed, but in order to make it clear to others that compliance with the Housing Law is important. 

4.        It will be evident, from the exchanges which have taken place with Counsel, that in our judgement the conclusions are much too low, but we have, nonetheless, been influenced by them.  We think that the appropriate total fine is one of £25,000. 

5.        On charge 1 you will be fined £5,000, or 2 months' imprisonment in default, and on each of Counts 2, 3, 4 and 5; £5,000, or 2 months' imprisonment, consecutive, in default.  Making a total of £25,000 or in default 10 months' imprisonment.  We order you to pay £2,000 towards the costs of the Prosecution.

(Discussion on time to pay)

6.        The defendant has 28 days to pay.

Authorities

Housing (Jersey) Law 1949 (as amended).

AG v Muren and Peter [2000] 166.