Jersey Unreported Judgments

[2007]JRC216

ROYAL COURT

(Samedi Division)

16^th November 2007

Before     :

F. C. Hamon, Esq., O.B.E., Commissioner and Jurats Le Brocq and King.

The Attorney General

-v-

John Edward Upton Meyer

Mary Margaret Hall née Byrne

Natalie Jeanne Lisa Duffy née Parkin

The Salty Dog Bar and Bistro Limited

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

1 count of:

Contravention of Article 20 (1) (a) of the Housing (Jersey) Law 1949, as amended.  (Count 1).

John Edward Upton Meyer

Age:  35.

Plea: Guilty.

Details of Offence:

(a)     In 2003 Mrs Hall purchased a property.  The Housing Committee consented to the property being occupied by Mrs Hall or persons under 1 (1) (a) to (j) of the 1970 Housing Regulations.

(b)     In July 2003 Housing confirmed to the Company that it was prepared to grant it a three year 1 (1) (j) category Housing Consent to enable the Company to house its head chef, Mr Meyer and his family.  In December 2003 Housing approved a Short Lease Application, signed by Mrs Hall as owner of the Property and Mrs Duffy for the company as tenant permitting Meyer to occupy the Property from 3^rd January, 2004 to end December 2006 as a J category employee.  Mrs Hall received the original Housing Consent and a copy was supplied to Mrs Duffy.

(c)     In May 2007 Housing learnt that Meyer was still living at the Property.  No further application for consent to occupy had been received.  Inspection by the Housing Department confirmed that Meyer and his family were living at the Property, paying rent direct to Hall at the rate of £325 per week together with an unqualified person who paid £70 weekly rent to Mr Meyer.

(d)     In interview:-

(i)         Mr Meyer explained that he knew the J Housing Consent expired at the end of December 2006 and his employment with the Company ended in any event in March 2007.  Mr Meyer stated that, although no longer employed by the Company, he believed his 'J' category status ran until he would obtain full housing qualifications in June 2007 and that therefore "there would not be a problem".

         (ii)         Duffy admitted that she was a director of the Company at all material times and had been responsible on behalf of the Company for applying for and obtaining the J category Housing Consent in favour of Mr Meyer.  She explained that she had never discussed or explained the three year duration of the Housing Consent with Mr Meyer and had not read it closely as it was a busy time of year for the business and she was looking after the children.  She knew it was the Company's responsibility for overseeing Mr Meyer's J category licence but because of an oversight no further application was submitted in or before December 2006.

         (iii)        Mrs Hall admitted she had received the relevant documents from letting agent but lost track of time, had failed to note that the Housing Consent expired end December 2006 and had understood that J category housing consents were granted permanently and indefinitely.  She therefore did not know that Mr Meyer's category consent relied on his continued employment with the Company.

(e)     Meyer vacated the property in October 2007.

Details of Mitigation:

All defendants co-operated with the Housing Department, were of previous good character and admitted the infractions at the earliest opportunity.

35 year old Chef, born in South Africa and moved to the Island in 1995.  Employed by the company as head chef for c 5.5 years to end March 2007.  Married with young son, currently setting up a new catering venture.  Acted under a mistaken understanding of the Housing Law.  Legally aided.  £9,000 business related debts outstanding.

Previous Convictions:

None.

Conclusions:

Count 1:	£5,000 fine or 3 months' imprisonment in default.
Costs:	£ 750.

Sentence and Observations of Court:

Count 1:	£1,000 fine or 2 weeks' imprisonment in default.  Fine to paid £80 per month from January onwards.
Costs:	£750.

The Housing Consent was clear.  Mr Meyer mistakenly believed he was allowed to remain in the property until June 2007 when he would gain his housing qualifications.  The least culpable of the defendants.  If Mrs Hall and Mrs Duffy had acted correctly the situation would have been avoided.  Some sympathy with all the defendants as these infractions arose out of negligent failing.

An exceptional case on its merits and not to be regarded in future cases as establishing a precedent.  (The Population Office might consider warning persons when a Housing Consent is about to expire)

Mary Margaret Hall née Byrne

1 count of:

Contravention of Article 20 (1) (a) of the Housing (Jersey) Law 1949, as amended.  (Count 1).

Age:  68

Plea: Guilty.

Details of Offence:

See Meyer above.

Details of Mitigation:

68 year old, born in Eire.  Owns a number of tenanted properties in Jersey,.  Negligently failed to note when the consent expired.  Profit made during the illegal occupancy was the benefit of avoiding the inconvenience of finding a new tenant.

Previous Convictions:

None.

Conclusions:

Count 1:	£5,000 fine or 3 months' imprisonment in default.
Costs:	£ 750.

Sentence and Observations of Court:

Count 1:	£4,000 fine or 2 months' imprisonment in default.  2 weeks to pay.
Costs:	£750.

See Meyer above.

Natalaie Jeanne Lisa Duffy née Parkin

1 count of:

Contravention of Article 20 (1) (a) of the Housing (Jersey) Law 1949, as amended.  (Count 1).

Age:  41.

Plea: Guilty.

Details of Offence:

See Meyer above.

Details of Mitigation:

41 year old, Jersey resident, co-director of the Company and manager of its Salty Dog Restaurant.  On family holiday when the J category licence expired.  Negligently failed to ensure the Company managed Meyer's position.  No profit from the infraction.

Previous Convictions:

None.

Conclusions:

Count 1:	£2,000 fine or 1 month's imprisonment in default.
Costs:	£ 750

Sentence and Observations of Court:

Count 1:	£1,500 fine or 1 month's imprisonment in default.  3 weeks top pay.
Costs:	£750.

See Meyer above.

The Salty Dog Bar and Bistro

1 count of:

Contravention of Article 20 (1) (a) of the Housing (Jersey) Law 1949, as amended.  (Count 1).

Plea: Guilty.

Details of Offence:

See Meyer above.

Details of Mitigation:

Negligently failed to ensure correct arrangements in place over Mr Meyer's occupation of the Property.

Previous Convictions:

None.

Conclusions:

Count 1:	£2,000 fine.
Costs:	£ 750.

Sentence and Observations of Court:

Count 1:	£1,500 fine.  3 weeks' to pay.
Costs:	£750.

See Meyer above.

B. H. Lacey, Crown Advocate.

Advocate M. H. Temple for Meyer.

Advocate A. P. Begg for Duffy and Salty Dog.

Advocate A. D. Hoy for Hall.

JUDGMENT

THE Commissioner:

1.        On 13^th February, 2003, the Housing Committee issued a consent to Mrs Hall to purchase a residential house, 87 Clos de Sable, St Brelade.  The Housing consent contained a condition which could not be clearer.  It is in the standard form. 

"The property shall be occupied by the purchaser as her sole or principal place of residence or shall be let unfurnished to or otherwise occupied by persons approved by the Committee as being persons of a category specified in Regulation 1(1) A - J of the Housing General Provision (Jersey) Regulations 1970 as amended."

2.        Part of the property is a one room unit on the ground floor which is capable of being let separately.  In July 2003, the year that the property was purchased, the Salty Dog Bar and Bistro took over the lease of the property.  In December 2003 the Salty Dog Bar and Bistro was given permission to house Mr Meyer and his family.  The Housing consent could not be clearer:-

"(1)      That the dwelling accommodation on the land should be used exclusively or mainly for residential purposes, and there shall be no diminution of such existing area of private dwelling accommodation;

(2)       that the property shall be occupied by Mr John Edward Meyer on a service basis with a duration of his full time employment with the Salty Dog Bar and Bistro as head chef such a period not exceed December 2006 or by persons specifically approved as occupiers by the Committee."

3.        Mr Meyer was the chef of the Company and a short lease application was made and granted which enabled Mr Meyer and his family to occupy the property for three years from December 2003.

4.        In May 2007 some four years later the Housing Department found that living in the property was a Polish lady who paid rental of £280 per month to Mr Meyer and Mr Meyer and his family who paid £1,300 per month to Mrs Hall.

5.        It is clear that the three year period ended in December 2006.  Mr Meyer ended his employment with the company in March 2007.  Mr Meyer believed, wrongly that, although no longer employed by the company his J category status allowed him to remain in the property until his housing qualifications came to fruition in July 2007. 

6.        Mrs Duffy represented the company and was responsible for the administration of it.  She had apparently explained the position to Mr Meyer who had not seen the lease or indeed the Housing Consent.  He admits that he was unaware that his J category licence expired in 2006.  It is clear that he should have been aware that he could not occupy the property after December of that year.

7.        Mrs Hall is now 68 and is retired but she owns a number of properties in the Island which are rented.  She is well aware of the nature of the Housing restrictions.  Mrs Duffy is the administrator of the company which is jointly owned with her husband and must have known the terms of the Housing Consent.  She did nothing after Mr Meyer left the company to ensure that he either occupied the property with Housing consent, or vacated the property. 

8.        The period of times of the infractions varies.  Mr Meyer was in unlawful occupation of a property for 9 months from the 31^st December, 2006 to the date of vacating it in October 2007.  Mrs Hall as landlady must have known the situation.  As I have said Mrs Duffy did not take any action when Mr Meyer ceased to be employed by the company in March 2007. 

9.        We have had careful regard to all the cases but particularly to the AG -v- Muren and Peters 2000/166, which deals in detail with illicit profits.  As the Court in that case said:

"We do not expect the Crown nor the defence, to engage in complicated exercises to assess the existence or extent of any illicit profit.  If it is to be taken into account as an aggravating factor, it should be reasonably plain from the facts. "

10.      The Housing Office has produced a Schedule of Illicit Profit that is the profit made while living in the flat without consent.  Mr Meyer was there for 9 months and paid £11,700 to Mrs Hall.  He also received £2,370 from his lodger.  That is what the Housing Department refers to as illicit profit, but Advocate Temple has pointed out that he did pay all the outgoings on the property.  The owner of the property could have let the property to a qualified person and in accordance with AG -v- Muren and Peters she did not make an illicit profit.  But the judgment goes further than that.  Mr Meyer could have deprived a person qualified under the Housing Law from making use of the property.

11.      Mr Meyer was undoubtedly aware of that.  If Mrs Duffy and the company had acted correctly the position would never have arisen.  It may be relevant that the property is at the present time still un-let.

12.      What of the mitigation?  Apparently Mr Meyer owes some £9,000 as a bad debt.  He is about to set up a business and he is without a doubt an excellent chef.  He tells us that he would not have survived in the property had he not let it to the illicit lodger.  But he did at one stage make application to the Undertaking and Regulations Department which was of course insufficient for this prosecution.  Mrs Duffy was away in Australia for Christmas and the New Year and had other things on her mind.  Mrs Hall said that she employed an agent who was only a letting and not a managing agent.  She did not, to do her credit, put the rent up at any time. 

13.      We have some sympathy for all the defendants, for these are offences of omission and not commission.  We accept and are very grateful to all counsel for their very detailed arguments.  This was negligent failure as Advocate Hoy said and we feel in the circumstances that the fine is too high.  Perhaps Housing might consider reminding people who have limited occupation of property when their licence is near to expiry.  This is an exceptional case on its merits and we would not wish this case to establish any precedent.  We have to say that the Housing Law must be maintained.  We have obviously noted the references and the remorse and we feel that Mr Meyer is the least culpable of those present before us to day.

14.      Taking into account all the circumstances, including the periods of unlawful occupancy, the defendants' role in each case, the profit and benefit and, of course, the available mitigation, we would move as follows.  Mr Meyer we are going to fine you £1,000 or 2 week's imprisonment.  Mrs Hall a fine of £4,000 or 2 months' imprisonment and Mrs Duffy a fine of £1,500 or 1 month's imprisonment and the company a fine of £1,500.  We feel the costs incurred in bringing this matter before the Court of £750 each is reasonable and we will allow that. 

Authorities

AG -v- Muren and Peters 2000/166.