Jersey Unreported Judgments

[2009]JRC044

ROYAL COURT

(Samedi Division)

6^th March 2009

The Attorney General

-v-

Catia Patricia Teles Cardoso

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

Age:  30.

Plea: Guilty.

Details of Offence:

Defendant in breach of trust (whilst employed by the Hospital) obtained just under £9,000 and attempted to obtain an additional £3,329 by falsely pretending that she worked nightshifts when she did not.  She forged the signatures of various other staff at the hospital to obtain/attempt to obtain the money.

Details of Mitigation:

Good character.  Excellent references.  Principal carer for her children aged 8 and 12.  Strong statement from Probation Officer of the risk of custody to her.  Poor health at the time of some of the offending and fears for her health beforehand.  Lack of support from her husband.

Previous Convictions:

None.

Conclusions:

Total: 12 months' imprisonment.

No recommendation for deportation sought.

Sentence and Observations of Court:

12 months probation and 180 hours community service, equivalent to 12 months imprisonment concurrent on each count together with a compensation order of £3,600 payable at £100 per calendar month, six months imprisonment in default of payment.

Total: 12 months' Probation Order and 180 hours' Community Service Order.

Compensation of £3,600 to pay £100 per month over 3 years, or 6 months' imprisonment in default.

R. J. MacRae, Esq., Crown Advocate.

Advocate S. E. Fitz for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant worked as a Bank Nurse at the General Hospital.  At the end of each shift Bank Nurses are required to complete their hours on a Bank Nurse monthly hours form which is then countersigned by a Senior Nurse.  At the end of the month the form is checked and then sent internally to the payroll department for payment.  Over a nine month period the defendant put in forms using forged signatures on some 82 occasions, receiving payment for some 70 shifts which she had not in fact worked, obtaining thereby £8,997.72, (Count 1) and if she had not been discovered, would have obtained a further £3,329.02 (Count 2).

2.        The Crown describe this as a case involving a breach of trust by her as an employee.  Whelan says at paragraph 453 of Whelan on Aspects of Sentencing in the Superior Court of Jersey:-

"No matter how the mechanical circumstances vary, the essential gravamen remains the same: a person entrusted with the position of good steward of the employer's business subverts that trust by using it as the very instrument of a crime against the employer."

The element of trust arises solely out of a relationship of employee to employer and we agree with Miss Fitz that this case is very much on the borderline between breach of trust cases and cases of straight forward fraud.  This does not detract from the seriousness of the offences but it places the defendant on the margins of the resolute sentencing policy of the Courts for breach of trust cases which result in a custodial sentence, save in exceptional circumstances.  However such dishonesty, committed over nine months involving such sums would, we accept, ordinarily attract a custodial sentence.

3.        The defendant is 30 years of age and is of good character.  She has pleaded guilty.  She is married with two children aged eight and twelve years.  Her husband is in full time employment with Jersey Post but there is family debt which, with emotional and health problems and perhaps a lack of support from her husband, began to overwhelm her.  She wanted to protect her children from the real hardship she had experienced as a child and thus she made the decision to falsify her time sheets. 

4.        We have considered the expert reports provided by Miss Fitz in relation to what she describes as the horrendous impact a custodial sentence will have on the children and their development.  We have also taken into account the fact that, because of the hours worked by her husband as a postman, a custodial sentence will inevitably lead to him giving up his full time job in order to care for them.  The defendant has expressed remorse, in particular for the impact this offending has already had upon her children.  Applying Kirkland-v-AG 2001/200, we have concluded that all of the circumstances of this case taken in their totality are sufficient to justify a non-custodial sentence despite the seriousness of the offence.

5.        The defendant is sentenced as follows:- on count 1; 12 month's probation and 180 hours' of Community Service, which is the equivalent of 12 months' imprisonment, count 2; 12 months' probation, concurrent and 180 hours' Community Service, concurrent, which makes a total of 12 months' probation and 180 hours' Community Service. 

6.        In terms of compensation we order, pursuant to Article 2(1) of the Criminal Justice (Compensation Orders)(Jersey) Law 1994 that the defendant will pay the Minister of Health and Social Services compensation for the loss suffered in the sum of £3,600 payable over 3 years at the rate of £100 per month starting from today 6^th March, 2009 and we fix a term of imprisonment of 6 months in default of the payment of that compensation.  In doing so we have noted Archbold at paragraph 5-426 which makes it clear that the maximum period that Court can properly allow for the payment of compensation is 3 years and we accept the defendant can pay no more than £100 per month.  We note that having that order the defendant is intending voluntarily to repay the whole of the sum that has been defrauded.

Authorities

Whelan on Aspects of Sentencing in the Superior Court of Jersey.

Kirkland-v-AG 2001/200.

Criminal Justice (Compensation Orders)(Jersey) Law 1994.

Archbold.

AG-v-Crocker [2003] JRC 071.

AG-v-Gray [2004] JRC 140.

AG-v-Morton [2007] JRC 127.