Jersey Unreported Judgments

[2010]JRC099

ROYAL COURT

(Samedi Division)

28^th May 2010

The Attorney General

-v-

Phillip Sydney Mortlock

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

Age:  58.

Plea: Guilty.

Details of Offence:

In August 2007 the defendant was employed as the Bar Manager at the Mechanics Institute Snooker Club.  Over a period of approximately three weeks the defendant stole a total of £6,592.89 being the bar takings for that period of time.  He left a note and two post dated cheques payable to the treasurer but one presented the cheques were returned marked "refer to drawer".  An investigation of the defendant's bank accounts made it apparent that he had insufficient funds to meet the cheques. 

In the Crown's view he left the cheques as a means to cover his tracks and to but himself time.  By the time the offence was discovered, he had left the Island.  A wanted missing report was placed on the Police National Computer but it was not until July 2008 that he came to the attention of the police in the UK for a further offence of theft by an employee.  He was granted bail but did not keep his bail condition.  He was re-arrested in November 2009 by the UK police and then returned to Jersey in January 2010.  He entered a guilty plea to the offence on his third appearance before the Magistrate's Court.  He subsequently claimed that he used the monies to fund his gambling addiction in that the hope that he could repay the monies stolen.  No monies have been repaid albeit noted that the victim had the benefit of an insurance policy and therefore its actual loss was £1,592.89. 

The Crown's position on sentencing was that this was a breach of trust case and there were no exceptional circumstances.  An immediate custodial sentence was inevitable.  The Crown considered the questions in the case of Barrick. 

Details of Mitigation:

The Crown noted no exceptional circumstances.  He had pleaded guilty which was the only matter of substantial mitigation.  The defence contended that he entered early guilty plea even before he had been arrested or the offence discovered by leaving the note and the cheques.  Poor criminal record arising out of his gambling addiction but noted there was a twelve year gap when had remained free of gambling.  Suggested that there had been a delay in the Jersey Police locating him and returning him to the Island.  Remorse and letters of support put before the Court. 

Previous Convictions:

20 convictions for a total of 36 offences including 5 fraud, 26 offences for burglary/theft/handling, theft by employee and DIC. 

Conclusions:

Sentence and Observations of Court:

Defendant pleaded guilty to stealing £6,592.89 from the Mechanics Institute when employed in a position of trust as a manager.  The offence came to light when he disappeared suddenly and committed a further offence in the UK.  Community Service is not an option.  Court had regard to the long line of authorities and the Court's policy for such offences.  He had a bad record and was assessed at being medium risk of re-offending.  The Crown was seeking a sentence of 18 months' imprisonment and it was noted that he had served the equivalent of 4 months and 11 days.  Court had regard to the letters and Social Enquiry Report which indicated the offences were connected to his gambling addiction.  A gambling addiction is not a matter for mitigation (see C. Whelan paragraph 458).  His guilty plea accepted and when he was on bail in the UK did not abscond.  None of the mitigation amounted to exceptional circumstances.  The offence had been committed one month after his arrival in Jersey and was a flagrant breach of trust. 

Conclusions granted.

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

Advocate C. M. Fogarty for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant has pleaded guilty to stealing £6,592.89 from the Mechanics Institute whilst employed in a position of trust as its manager.  The offence came to light when he abruptly left his employment, returning to England, where he re-offended again stealing from his new employer for which he was sentenced to 4 months' imprisonment, suspended for 12 months and the equivalent of community service for 200 hours, of which he has completed 27 hours.  In view of this a community based disposal is not an option in Jersey and in view also of the Court's strict policy in relation to this kind of offence, the defendant has accepted that a custodial sentence is inevitable.  He has a bad record and has been assessed at a medium risk of re-offending. 

2.        The Crown have moved for a sentence of 18 months' imprisonment of which he already would have served, assuming good behaviour, 4 months and 11 days as he has been in custody since 1^st of March of this year. 

3.        In terms of mitigation we have listened to the submissions of Advocate Fogarty.  We have read the background report and the defendant's letter and the letter from his niece and nephew.  We note that these offences were connected to his gambling addiction although of course, that is not regarded as a matter of mitigation (see Whelan on Aspects of Sentencing in the Superior Court of Jersey at paragraph 458). 

4.        The defendant has pleaded guilty and we accept what Advocate Fogarty says that once on bail in the United Kingdom he did not further abscond but that was not a matter, in our view, upon which the Crown have placed any reliance in reaching its own conclusions.

5.        None of the mitigation amounts to exceptional circumstances and we note that the offences here took place within a month of the employment commencing and in the absence of the treasurer.  It was therefore a flagrant breach of trust. 

6.        Accordingly we are going to grant the conclusions of the Crown.  You are sentenced to 18 months' imprisonment. 

Authorities

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