Jersey Unreported Judgments

[2010]JRC078

ROYAL COURT

(Samedi Division)

20^th April 2010

The Attorney General

-v-

Maciej Andrzej Mumot

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

Age:  28.

Plea:

Details of Offence:

The defendant employed by bookmakers for the last 3 years.  Started gambling on a small scale following his commencement of employment.  Promoted to assistant manager to cover for manager on maternity leave.  Addiction got out of control and over a period of 4 months stole £8,500 from his employer to fund his gambling addiction.  Had the stated intention of repaying it from his hoped for winnings.  The offence came to light following a "spot check" by the employer.  The defendant made immediate admissions and full and frank admissions to police in interview.  Crown's position that whilst the defendant had substantial mitigation it was the usual mitigation in such circumstances and did not amount to exceptional circumstances.  The crown considered the questions in the cases of Barrick. 

Details of Mitigation:

The Crown

Guilty plea on first appearance in Magistrate's Court.  Frank admissions and co-operative in interview.  First offender/previous good character.  Hardship to family, gambling addiction.  Remorse.  Low risk of re-offending. 

The Defence

The defendant fully accepted that he had no excuse for abusing position of trust.  Monies spent on gambling rather than on lavish lifestyle.  Kept note of monies taken with the intention of paying back.  Prompt admission of offence and co-operative; early guilty plea.  Making repayment to employer.  Stable relationship and references provided to show hardworking, likeable character.  Poor financial position.  Both partner and daughter had serious ill health problems.  The defendant was principal financial provider and also carer.  Had taken positive steps to overcome root cause of problem i.e. attending Gambling Anonymous.  Contended that Court should view all of the mitigating circumstances and if it did so it would amount to exceptional circumstances.  The defence sought a non-custodial sentence. 

Previous Convictions:

None either in Poland or England. 

Conclusions:

The Crown also considered whether a recommendation for deportation was appropriate.  The defendant had been served with a Section 6(2) Notice.  The Crown contended that the first limb of the test had been satisfied in that continuing presence of those who steal from their employer in breach of trust were detrimental to the community.  However, as a first offender with positive references etc. and given the family circumstances the Crown submitted that a recommendation for deportation would be disproportionate.  It suggested that the Defendant should be warned as to future conduct.

Notice served but deportation not sought.

Sentence and Observations of Court:

Defendant to be sentenced for stealing £8,500 whilst in the position of trust as an assistant manager from his employer.  Monies taken to feed his gambling addiction.  Small stakes at first and then became addicted.  Once challenged by his employer accepted guilt.  Fully co-operative.  Court for the last 30 years had stated custodial sentences for breaches of trust offences unless there were exceptional circumstances.  The Court quoted from paragraph 343 of Whelan's text.  Also quoted paragraph 344.  Court to consider mitigation in totality as to whether there were exception circumstances or not.  The Court also quoted paragraph 347. This case is tragic.  Defendant unlikely to offend again.  Repaying his former employer.  The Court noted partner and child's health.  Hardship beyond financial.  Impact if defendant were to be imprisoned.  Court on balance found that taking all mitigating factors together they amounted to exceptional circumstances. 

No deportation considered.

The alternative sentence being 9 months' imprisonment.  The Court agreed that the recommendation for deportation was not proportionate at this time but were he to re-offend then he would be at real risk of such a recommendation being made. 

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

Advocate M. P. Cushing for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant stole £8,500 from his employer whilst in a position of trust.  He was employed as assistant manager by Joe Jennings Bookmakers (Jersey) Limited and stole to fund his gambling addiction.  He started betting shortly after commencing employment, initially with small and infrequent stakes, but as time passed he developed an addiction and began taking money from the safe to fund his habit.  When challenged he accepted his guilt and co-operated both with the employer and with the police.  Indeed his employers have, notwithstanding these offences, given him a good reference. 

2.        The policy of the Court has been clearly laid down for some thirty years, namely that such offences are punishable by a custodial sentence in all but the most exceptional circumstances.  The Courts have been clear as to what is meant by exceptional circumstances.  Quoting from Whelan on Sentencing paragraph 344:-

"In Kirkland (JJ unreported 24.9.2001) the Superior Number observed that: 'It is one of the tragedies of cases like this that there is almost invariably very powerful mitigation'.  The Court adverted particularly to that passage in Barrick (1985) 7 Cr.App.R. (S) 142 at 145 which observes that the accused will usually be of hitherto impeccable character, unlikely ever to offend again, unlikely to be able ever to secure similar employment, and to have brought disgrace and hardship onto his family.  The Superior Number observes that these features are usual rather than exceptional.  The Court has to look for something more.  But it is not right to search for factors which in isolation may amount to exceptional circumstances.  In deciding on sentence a Court looks at all the circumstances to see whether, taken in their totalilty, they can be said to be exceptional."

At paragraph 346 Whelan says as follows:-

"In Congdon (12.2.02) the Court reviews those cases in which gambling addiction is advanced as mitigation.  It is not usually to be regarded as an exceptional circumstance and may not even add materially to the other mitigation in the case."

3.        This is not a case which falls at the lower end of the scale in terms of degree of trust and the amount involved, which might justify otherwise a non-custodial sentence following R-v-Hurren (1990) Cr. App. R. (S) 60 see also paragraph 347 of Whelan. 

4.        This case is equally tragic in that the defendant has very powerful mitigation, he has an impeccable character; he is unlikely to offend again; he will be unlikely to find a similar employment where he is in a position of trust and he is also making what reparations he can to his employer. 

5.        The feature of this case which the Court has considered very carefully is whether his partner's ill health and the reliance of both her and his daughter upon him can, with all of the other mitigation, amount to exceptional circumstances.  When pregnant his partner was diagnosed with what is known as Lupus, an incurable, chronic auto-immune connective tissue disease that can affect any part of the body.  She is in receipt of regular and powerful medication and is unable to work or fully care for her daughter; as a consequence she receives incapacity benefit.  Further, their daughter, because of the medication taken by the mother during the pregnancy, has also been diagnosed with asthma and a heart defect which makes her vulnerable to infections.  The hardship, in our view in this case, goes beyond the financial impact upon the family in that the defendant is their sole carer as well.

6.        On balance, and after careful consideration, we find that there are exceptional circumstances here that will allow us to impose a non-custodial sentence notwithstanding the policy of the Court in breach of trust cases, the importance of which we wish to re-affirm.

7.        You are therefore sentenced to 150 hours' community service which is the equivalent of 9 months' imprisonment.

8.        We will not recommend deportation for the reasons put forward by the Crown but of course, must warn you that any further re-offending may well result in such a recommendation being made. 

Authorities

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

R-v-Hurren (1990) Cr. App. R. (S) 60.

R-v-Nazari (1980) 3 All E.R. 880 C.A.

Camacho-v-AG [2007] JLR 462.