Jersey Unreported Judgments

[2009]JRC169

ROYAL COURT

(Samedi Division)

21^st August 2009

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Le Breton and Newcombe.

The Attorney General

-v-

Keith Stanley Gibbins

Sentencing by the Inferior Number of the Royal Court, following conviction at Assize trial on 27^th May, 2009 (First Indictment) and following guilty pleas (Second and Third Indictments) to the following charges:

First Indictment

2 counts of:

Fraud (Counts 1 and 2).

Second Indictment

2 counts of:	Fraud (Counts 1 and 5).
1 count of:	Attempted fraud (Count 3).

Third Indictment

1 count of:	Attempted fraud (Counts 1).
2 counts of:	Fraud (Counts 2 and 4).

Age:  43.

Plea: Guilty.

Details of Offence:

First Indictment

In November 2000, Gibbins took out an insurance policy.  He made six claims under the policy, all of which were paid.  The policy was not offered for renewal in 2002.  In 2004 Gibbins took out another insurance policy and this with the Royal and Sun Alliance.  His original contact was online and then a proforma letter and then a telephone conversation.  In each of these communications he stated that he had no previous claims and had not had a policy cancelled, voided etc.  The policy was granted and he made two claims under the policy.  The first was for £9,285 which was paid.  Whilst investigating the second claim which was for approximately £12,608 his previous claims history was revealed.  When confronted Gibbins stated that he has sent in a latter setting out the full claims history but this had never been received by the Insurers.  The Crown's case was that this letter was produced at a later date to cover his tracks.  The Royal and Sun Alliance voided the policy and refused the second claim and sought repayment of the first claim (Count 1).

In 2005 Gibbins took out an insurance policy via brokers with Axa.  On the proposal form he stated that he was a stockbroker.  This was not true.  He made a declaration that he had never had insurance refused or withdrawn and stated that he had only had one previous claim.  All of these declarations were false.  He then made a claim on the policy for the sum of £9,435.  Enquiries once again revealed his previous claims history and the previous two policies being withdrawn/voided.  Gibbins claimed that the previous claims were in his ex-wife's name.  This was a lie given that he remained married to the same woman as at the date of his trial (Count 2).

The defendant was unanimously found guilty by the Jury following his trial.

Second Indictment

Count 1: Gibbins applied for and obtained a bank account with a mortgage by falsely declaring that he was employed by a bank in the UK earning a salary of £149,500.  A forged document purportedly coming from his then employer was provided in support.  He then ran the bank account into a debit position and used up the £5,000 overdraft facility (Count 1).

In August 2008 Gibbins contacted the Mortgage Shop with a view to arranging a mortgage and he was seeking a mortgage in the sum of £536,000 and he specifically advised that he wanted a mortgage with the Newcastle Building Society even though there were cheaper rates available locally.  He completed an application form which once again contained false declarations as to his employment and salary.  A forged letter purportedly coming in from his employer confirming his salary was provided by Gibbins in support of his application.  The application was granted but the funds were not taken as the property transaction fell through (Count 2). 

In December 2008 Gibbins completed a personal history form when applying for employment with Kleinwort Benson.  On that form he made false declarations as to the existence of criminal charges against him, litigation against a former employer, and the existence of a number of judgment debts against him.  He completed the form signing a declaration as to the accuracy of the answers provided.  Information as to the lies told by Gibbins on the application form came to light and he was dismissed within a short period of time albeit he was paid a figure of £1,172.73 (Count 3). 

Third Indictment

In December 2006 he applied for legal aid and whilst the application was refused as it was not within the remit of the legal aid system, in completing the legal aid application for Gibbins stated that he did not own or have an interest in his own home.  The legal aid form contained a declaration as to the truth of the information contained on the form.  This information was false in that Gibbins had owned a property since 2003 jointly with his wife (Count 1). 

In November 2007 Gibbins again applied for legal aid and this in relation to the two Counts on the First Indictment.  He was granted legal aid.  However, he made false declarations as to the value of his home and the outstanding mortgage that existed at the time.  Had he stated the true position he would not have been granted legal aid.  The property was subsequently sold at a substantial profit but he failed to advise his lawyer of that change in his circumstances (Count 2). 

On the 4^th July, 2007, Gibbins applied for Parish Welfare from the Paris of St Saviour and thereafter he was paid the sum of £155 per week.  Gibbins failed to disclose that whilst he had in fact lost his employment he had been paid for twelve weeks and he failed to disclose the monies received by him.  An examination of his bank accounts over the relevant period revealed his spending habits both in respect of necessities and also frivolous matters.  There were numerous debits for travel, cash withdrawals, betting transactions, Ebay transactions etc.  He collected £4,706.10 from the Parish of St Saviour and had the Parish been aware of his true salary position then he would not have received such benefit (Count 4). 

The Crown approached sentencing from the view that these offences involved an element of breach of trust.  The Crown, therefore, applying the established authorities in relation to such breach of trust cases suggested that in the absence of exceptional circumstances a custodial sentence was inevitable.  The Crown did not consider that a "starting point" approach was applicable.

Details of Mitigation:

The Crown, in relation to the First Indictment, stated that Gibbins did not have the benefit of guilty pleas but had the benefit of a man of good character and the offences were out of character.  There had also been a delay on the part of the Crown in prosecuting the case.  The Crown acknowledged that this warranted some reduction from the Crown's Conclusions specifically for this factor. 

In relation to the Second and Third Indictments, he had the benefit of guilty pleas, albeit he was not co-operative with the police in interview.  He was a mature man of previous good record and the offences were out of character.  The Crown balanced those against the fact that five of the six counts covered by the Second and Third Indictments were committed whilst Gibbins was on bail for the offences on the First Indictment.  The Crown viewed this is an aggravating factor.  The Crown considered that he had not made any genuine expressions of remorse nor had he made any effort to refund those who had suffered a loss.  The Crown contended that the offences had not been committed out of necessity.

The Defence handed up letters from Gibbins and a Psychiatric Nurse.  He was aged 42 and a man of previous good character and the consequence of this offending was devastating not only for him but also for his family.  The offences committed against a great deal of pressure and depression.  The Defence contended that these were not offences of breach of trust and had wrongly been categorised by the Crown.  He was not a person in a position of trust.  He had reacted badly to a series of events which put pressure upon him and his family and had exercised poor judgment.  It was accepted Gibbins offended whilst on bail but the defence contended that this was counter-balanced by the significant delay which occurred in relation to the First Indictment.  There had been a delay of 2 years from interview to trial.  Impact on future job prospects, family etc was emphasised.

He had been unable to find work.  He had been suffering from depression and had suicide thoughts.  Described as low risk of re-offending.  The Crown sought a Compensation Order which was not opposed although the defendant was not currently in a position to pay.  It was suggested that a non-custodial sentence in the form of a Community Service Order was the appropriate sentence.

Previous Convictions:

None.

Conclusions:

First Indictment

Count 1:	2 years' imprisonment but reduced to 18 month' due to mitigation of delay.
Count 2:	2 years' imprisonment but reduced to 18 months due to mitigation of delay, concurrent to Count 1.

Second Indictment

Count 1:	9 month's imprisonment, concurrent.
Count 3:	9 month's imprisonment, concurrent.
Count 5:	9 months' imprisonment, concurrent.

Each of the sentences should be concurrent with each other but consecutive to the sentences on the First Indictment.

Third Indictment

Count 1:	9 month's imprisonment, concurrent.
Count 2:	9 month's imprisonment, concurrent.
Count 4:	9 months' imprisonment, concurrent.

Each of the sentences to be concurrent with each other but consecutive to the sentences on the First and Second indictments.

Total:  3 years' imprisonment.

Compensation Orders

The Crown sought Compensation Orders totalling £19,313.11 pursuant to the Criminal Justice (Compensation Orders)(Jersey) Law 1994.

1.     Royal & Sun Alliance:-  £8,334.65

2.     Barclays Bank Plc:-       £5,099.63

3.     Kleinwort Benson (Jersey) Limited:-  £1,172.73

4.     Parish of St. Saviour:-   £4,706.10

Total compensation:  £19,313.11

Compensation to be paid within 1 month of the sale of his property or alternatively, within 12 months of his release from prison.  In default of payment to a sentence of 6 months' imprisonment, on a consecutive ground, at the end of his release from prison.

Sentence and Observations of Court:

Gibbins was to be sentenced for eight offences of fraud and attempted fraud committed over a 5 year period arising out of the making of unlawful statements to obtain monies, bank account, mortgage, the granting of legal aid, welfare payments and insurance.  The defendant was a man of good character and previously in a position of well paid employment.  Two insurance frauds committed in 2004/2005.  Made decisions in 2006 which resulted in his life imploding and each offence was rooted in attempts to get out of the situation.  He was found guilty of the two insurance frauds and there was a regrettable delay by the Crown.  The defendant pleaded guilty to the remaining offences.  He was not co-operative with the Police.  The court accepted the submissions of Defence counsel that these were not breach of trust cases and that the principles in Barrick, Nelson and Marsh did not apply.  The policy stated by those cases was that a custodial sentence was inevitable save for exceptions circumstances.  The Court considered itself free of that policy in considering the appropriate sentence for the defendant.  However, these offences were serious and there was a great deal of mitigation.  the Court had read reports and letters and accepted the adverse affect upon himself and his family.  He was suffering from depression.  Current prospects adversely affected and may have to leave the island to find employment.  The Court accepted his mitigation but much of the suffering he had brought upon himself.  The Crown had carefully considered what was the appropriate sentence, but had concluded that Gibbins had engaged in a course of conduct and that imprisonment must be imposed.  In the exercise of the Court's discretion it would impose current sentences.

First Indictment

Count 1:	12 months' imprisonment.
Count 2:	12 months' imprisonment, concurrent.

Second Indictment

Count 1:	12 months' imprisonment, concurrent.
Count 3:	12 months' imprisonment, concurrent.
Count 5:	12 months' imprisonment, concurrent.

Third Indictment

Count 1:	12 months' imprisonment, concurrent.
Count 2:	12 months' imprisonment, concurrent.
Count 4:	12 months' imprisonment, concurrent.

Total:  12 months' imprisonment

Compensation Orders

1. Royal & Sun Alliance:-  £8,334.65

2. Barclays Bank Plc:-       £5,099.63

3. Kleinwort Benson (Jersey) Limited:-  £1,172.73

4. Parish of St. Saviour:-   £4,706.10

Total compensation:  £19,313.11

Compensation to be paid within 1 month of the sale of his property, or alternatively within 12 months of his release from prison, whichever is the earlier.  In default of payment, to a sentence of 6 months' imprisonment, on a consecutive ground, at the end of his release from prison.

J. C. Gollop, Esq., Crown Advocate.

Advocate E. L. Jordan for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant stands to be sentenced for a total of eight offences covering three Indictments of fraud or attempted fraud carried out over a total period of five years.  The offences involved untruthful statements made when completing various forms for the taking out of insurance, the opening of bank accounts, the obtaining of a mortgage, applying for employment, the granting of legal aid and the claiming of welfare benefits.

2.        The defendant is a man of good character who has in the past enjoyed well paid employment and the benefits that go with that.  The two insurance frauds were committed in 2004 and 2005.  In 2006 he was made redundant whereupon, as he has described it, his life imploded.  All of the latter offending is apparently routed in his attempts to get himself and his family, out of the situation he had got them into.

3.         The defendant pleaded not guilty to the two counts of fraud involving insurance companies in 2004 and 2005 and following a regrettable delay in the prosecution of the case for which Crown Advocate Gollop has accepted responsibility, he was convicted by the unanimous verdict of the Jury in May 2009.  He has pleaded guilty to the remaining offences.  It has to be said the defendant in this case was not co-operative with the police.

4.        Turning to the issue of breach of trust, we accept Advocate Jordan's submission that this is not a case of breach of trust and therefore the cases of R-v-Barrick (1985) 149 JP 705, AG-v-Marsh [2002] JRC 022 and AG-v-Nelson [2002] JRC 199, upon which the Crown rely, do not apply. 

5.        This is a straightforward case of fraud or attempted fraud.  We are not therefore within the policy of the Court in breach of trust cases that imprisonment must be imposed unless there are exceptional circumstances.  We are free of that policy and able to consider all of the mitigation of the defendant but having said that, and, as Advocate Jordan has acknowledged, these offences are serious.

6.        The defendant has a great deal of mitigation which has been put forward to the Court.  We have read the reports and his letter very carefully.  We accept the devastating effect of these offences on him and his family and we can see that his wife is not in the best of health and that he himself is suffering from depression.  The effect on his employment prospects are inevitably severe and it is probably fair to say that there is no prospect of work for him in the finance industry.  He may therefore have to leave the Island to find work.

7.         We accept all of this is but sadly, of course, much of this mitigation has been brought by the defendant upon himself.  We have been some time deliberating because we have given very careful consideration to Advocate Jordan's powerful plea in mitigation but we have reached the conclusion that the level of dishonesty over such a period, notwithstanding the delays on the First Indictment, is such that imprisonment must be imposed.  We have decided in our discretion to treat the offences as a course of conduct over a period of time and to impose concurrent sentences.

8.        On each count on all three of the Indictments you are sentenced to 12 months' imprisonment, concurrent.  That is a total sentence of 12 months' imprisonment.

9.        We now turn to the issue of compensation and we make a compensation order under the Criminal Justice (Compensation Orders)(Jersey) Law 1994 for the defendant to pay the following companies or entities the following sums:-

(i)        Royal Sun Alliance  £8,334.65

(ii)       Barclays Bank Plc  £5,099.63

(iii)      Kleinwort Benson (Jersey) Limited  £1,172.73

(iv)      Parish of St. Saviour  £4,706.10

That is a total figure of compensation of £19,230.48. 

This compensation is to be paid within 1 month of the sale of family property or 12 months from the defendant's release from prison whichever is the earlier.  There will be a default sentence in relation to the compensation of 6 months' imprisonment to be consecutive and to take effect from the end of 12 months from the defendant's release from prison.

Authorities

R-v-Barrick (1985) 149 JP 705.

AG-v-Marsh 2002/22.

AG-v-Nelson 2002/199.

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

AG-v-Donnelly and Others [2001] JRC 110.

Current Sentencing Practice para. B6-3. 3EE to B6-33E62.

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

Criminal Justice (Compensation Orders)(Jersey) Law Regulations 2000.

Sinclair-v-AG 1995/22.

AG-v-Hamilton, Moody and Streets 1997/97.