Jersey Unreported Judgments

Inferior Number Sentencing - fraud - malicious damage - violently resisting a police officer in the execution of his duty.

[2013]JRC042B

Royal Court

(Samedi)

22 February 2013

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Le Cornu and Liston.

The Attorney General

-v-

Gavin Neil Barnett-Roberts

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

First Indictment

38 counts of:

Fraudulent conversion (Counts 1-12, 16-21, 25, 27, 31, 33, 35-40, 42-49 and 51-52).

Second Indictment

1 count of:	Malicious damage (Count 1).
1 count of:	Violently resisting a police officer in the execution of his duty (Count 2).

Age:  33.

Plea: Guilty.

Details of Offence:

First Indictment

Barnett-Roberts became involved with the Silverstar Community Playgroup Association as a parent.  He became Treasurer of the Association in the Autumn of 2007, in which role he continued until the Association's AGM on 1^st November, 2011.  Over a period of approximately 2½ years up to 4^th November, 2011, Barnett-Roberts converted Association funds to his own use by a variety of means.  On some occasions he instructed funds to be transferred to his own bank or credit card accounts by direct inter-bank transfer, falsely claiming the monies to be repayment of monies such as staff ITIS or Social Security contributions he had paid personally (8 counts covering £11,566.15).  Between February 2009 and July 2011 he made numerous Silverstar cheques payable to himself (16 counts covering £22,398.73) or simply "Cash" (1 "global" count covering £600) and from August 2011, by which time he had obtained a debit card for the Association, personalised in his own name, withdrew cash from ATM's (1 "global" count covering £260).  He also admitted using Silverstar cheques to pay for a lawn to be laid at the matrimonial home (£510), consultations with a psychiatrist (£630), a payment into his wife's bank account (£2,801.26), the deposit on an apartment he rented when he moved out of the matrimonial home (£983.27), a payment to a finance company (£532.92) and legal services in relation to previous offences of domestic violence against his wife (£887.35).  He later used the Silverstar debit card to acquire use of an unlicensed private club's corporate facilities (£2,625) and to pay for a gent's gold bracelet (£438.10), flights to Jersey for his girlfriend and her children (£746.64), reservation fees for their accommodation (£99), and Apple iPad2 and case (£367.36) and repayment of a "pay day" loan (£1,000). 

To aggravate the offences Barnett-Roberts had lied on several occasions when challenged about the financial position of Silverstar, produced false accounts at each of the AGM's whilst Treasurer, ensured that those accounts were not audited, the Association having a false reliance on his abilities as he held himself out to be a qualified and skilful accountant and due to his position as an Assistant Vice President at a leading financial institution.  When Silverstar staff salaries went unpaid on occasions his dishonesty was nearly discovered but he managed to shift blame onto banking systems; immediately prior to Christmas 2010 the Chairperson caused £5,000 of personal savings to be transferred to the Association's current account to cover the unpaid salaries of worried staff, believing the Association's monies had been misplaced on a fixed-term deposit. 

During the period of offending Barnett-Roberts had an annual income of approximately £72,500, lived mostly in a £½ million house with his family, purchased a Porsche Carrera Sports coupe for his personal transport and purchased other "lifestyle" accessories.  His wife worked and contributed to family finances.  He made various expenditures in relation to his extra-marital relationship. 

Barnett-Roberts purported to offer assistance to the police during their enquiries but in fact chose to hide behind "legal advice" to give no comment interviews and failed to provide authority to investigate his credit card accounts while enquiries were current and employed delaying tactics throughout, including raising a conflict with lawyers who had been acting for him for over one year two days before original sentencing date of 21^st December, 2012.  He also hindered the Association's eventually successful attempts to recover some of their losses from a £17,000 inheritance Barnett-Roberts received. 

Some of the offences had been committed while subject of Probation and Community Service Orders.

Silverstar would have folded had it not been for a loan of £25,000 from a generous benefactor once the Association's true financial situation was discovered. 

Second Indictment

In August 2012 while on bail for the fraud offences Barnett-Roberts attended a rugby club lunch in Town.  Later, at about 10:15pm (outside his curfew hours) he was seen attempting to "smash up" a Ford Mondeo car parked in Goose Green car park, St Peter.  Police attended and were confronted with highly offensive and vulgar verbal abuse, from Barnett-Roberts who was under the influence of alcohol.  When it became necessary to arrest him he reacted violently causing injury to a shoulder of one of the officers, the prognosis of which is still uncertain at the time of sentencing.  Barnett-Roberts had threatened to kill the officer.  Damage to the Ford Mondeo cost £643.56 to repair. 

Details of Mitigation:

First Indictment

Barnett-Roberts provided some limited assistance to the police and entered sufficient guilty pleas that it would not have been in the public interest to pursue the remaining counts.  Defence stated he used Silverstar funds to settle debts caused by wife's catalogue purchases of clothes and furniture which put them in dire straits, that he had a "casual" approach to banking and sometimes "borrowed" from monies he should have paid in, with intention of repaying, that he had always intended to repay all monies - and will do - and that he had never transferred or paid out monies with the intention of deceiving; claimed he had been made redundant. 

Second Indictment

The offending was not pre-meditated and guilty pleas were entered (although not at the first opportunity).

Other

Lost matrimonial home after losing employment, had to move into rented sector.  Family enlarged with arrival of third child in April 2012, became house-husband looking after the children while wife, who was more employable, brought in an income.  No exceptional circumstances but incarceration would mean family would have to rely on Income Support and state benefits.  Very remorseful. 

Previous Convictions:

As Gavin Neil Roberts he appeared before the Royal Court in May 1998 on two counts of larceny as a servant and two counts of falsification of accounts; the Court there viewed his offending as "incomprehensible"; as a Young Offender and because of long delay he avoided a custodial sentence, being placed on probation and ordered to complete 210 hours of Community Service.  Compensation Order of £1,800. 

In May 2003 he was fined a total of £500 for common assault and being disorderly on licensed premises.  In July 2011 he was sentenced in relation to three common assaults, two concerning his wife and of a domestic violence nature and was ordered to complete 50 hours Community Service and placed on probation for 12 month, to include the ADAPT course. 

Conclusions:

The Crown took into account the totality principle in relation to all counts. 

First Indictment

Count 1:	2 years and 9 months' imprisonment.
Count 2:	2 years and 9 months' imprisonment, concurrent.
Count 3:	2 years and 9 months' imprisonment, concurrent.
Count 4:	2 years and 9 months' imprisonment, concurrent.
Count 5:	2 years and 9 months' imprisonment, concurrent.
Count 6:	2 years and 9 months' imprisonment, concurrent.
Count 7:	2 years and 9 months' imprisonment, concurrent.
Count 8:	2 years and 9 months' imprisonment, concurrent.
Count 9:	2 years and 9 months' imprisonment, concurrent.
Count 10:	2 years and 9 months' imprisonment, concurrent.
Count 11:	2 years and 9 months' imprisonment, concurrent.
Count 12:	2 years and 9 months' imprisonment, concurrent.
Count 16:	2 years and 9 months' imprisonment, concurrent.
Count 17:	2 years and 9 months' imprisonment, concurrent.
Count 18:	2 years and 9 months' imprisonment, concurrent.
Count 19:	2 years and 9 months' imprisonment, concurrent.
Count 20:	2 years and 9 months' imprisonment, concurrent.
Count 21:	2 years and 9 months' imprisonment, concurrent.
Count 25:	2 years and 9 months' imprisonment, concurrent.
Count 27:	2 years and 9 months' imprisonment, concurrent.
Count 31:	2 years and 9 months' imprisonment, concurrent.
Count 33:	2 years and 9 months' imprisonment, concurrent.
Count 35:	2 years and 9 months' imprisonment, concurrent.
Count 36:	2 years and 9 months' imprisonment, concurrent.
Count 37:	2 years and 9 months' imprisonment, concurrent.
Count 38:	2 years and 9 months' imprisonment, concurrent.
Count 39:	2 years and 9 months' imprisonment, concurrent.
Count 40:	2 years and 9 months' imprisonment, concurrent.
Count 42:	2 years and 9 months' imprisonment, concurrent.
Count 43:	2 years and 9 months' imprisonment, concurrent.
Count 44:	2 years and 9 months' imprisonment, concurrent.
Count 45:	2 years and 9 months' imprisonment, concurrent.
Count 46:	2 years and 9 months' imprisonment, concurrent.
Count 47:	2 years and 9 months' imprisonment, concurrent.
Count 48:	2 years and 9 months' imprisonment, concurrent.
Count 49:	2 years and 9 months' imprisonment, concurrent.
Count 51:	2 years and 9 months' imprisonment, concurrent.
Count 52	2 years and 9 months' imprisonment, concurrent.

Second Indictment

Count 1:	1 month's imprisonment, consecutive to First Indictment.
Count 2:	3 months' imprisonment, concurrent.

Total: 3 years' imprisonment.

Compensation Orders sought in favour of Silverstar Nursery - £35,357.80 and Mr Sam Armes - £643.56.

Sentence and Observations of Court:

Conclusions granted.

The Court had listened to all that had been said.  Sadly it would have a severe effect on his family but the sentencing policy for such maters was clear and, there being no exceptional circumstances, an immediate custodial sentence was appropriate. 

No Compensation Orders made.

Ms. S. J. O'Donnell, Crown Advocate.

Advocate E. L. Burns for the Defendant.

JUDGMENT

THE commissioner:

1.        In his position of as Honorary Treasurer of the Silver Star Community Playgroup Association, a non-profit making charitable organisation, of which as a parent he was member, the defendant fraudulently converted £46,445.78 to his use over 2 ½ years.  The frauds only ceased when he had drained the funds to such an extent that staff could not be paid.  He produced falsified accounts to cover up the loses.  At one stage before Christmas 2010 the Chairperson had to pay in £5,000 personally to allow staff salaries for Christmas to be paid, having been told by the defendant that the Association's funds were tied up in a fixed deposit; in fact there were no funds.

2.        The Crown says that the stolen funds were not used to look after his wife and children, but to finance his lifestyle, latterly using the money to pay for travel expenses for himself and his mistress, to fund club membership and purchase luxury goods.  The defendant is not of good character, has demonstrated a lack of cooperation and has used delaying tactics throughout these proceedings.  Furthermore, a number of the offences were committed whilst subject to probation and community service orders.

3.        Quite separately he stands to be sentenced for malicious damage and violently resisting the Police in the execution of their duty.  Under the influence of alcohol he was very abusive and very violent towards the Police, at one stage having to have leg restraints placed on him.  It took several officers to restrain him and one was injured, from which he is still suffering pain and discomfort.  These offences were committed whilst on bail for the fraudulent conversion charges.

4.        The Crown seeks a total sentence of 3 years.

5.        In terms of mitigation, the defendant has entered guilty pleas, although he did not do so at the first opportunity.  He says that he did spend, or take this money, for the purpose of meeting household bills and that he is now remorseful and has given us a letter to that effect.  He intends to re-pay the Association as and when he can.  We have considered everything put forward on his behalf by Miss Burns and have considered of course the reports and the other documents before us.  Sadly as is so often the case where these kinds of offences are committed, the effect upon his family is, and will be severe. 

6.        The policy of the Court is clear; a person convicted of an offence of a criminal breach of trust will receive a custodial sentence unless there are exceptional circumstances.  Miss Burns has conceded that custody is inevitable in that there are no exceptional circumstances here.

7.        The effect upon the Association has been particularly severe.  It provides pre-school education to 28 children between the ages of 2 and 5 and as a consequence of these thefts came close to having to close.  It has, to its credit and those who are now provide its honorary officers, managed to survive, with the aid of a substantial loan which will be a burden upon it for years.  These thefts have clearly caused all those involved in its work understandable shock and distress.

8.        The Court of Appeal made it clear in Bryce-Richards v AG [2006] JLR Note 16 that the Court should in these cases consider the factors set out in R v Barrick (1985) Cr. App. R.78 which with the assistance of the Crown's very thorough submissions we have done.  As Whelan On Aspects of Sentencing in the Superior Courts of Jersey makes it clear at page 220 Barrick and indeed English cases provide no guidance as to the length of sentences in this jurisdiction and there are no local guidance cases.  Miss Burns has referred us to a number of cases, which she says might indicate a somewhat lower sentence, but we have derived little assistance from them as their facts and mitigation inevitably differ.  In our view the quality and degree of trust was very high, and as we have just said, the impact upon the staff, committee and parents of the association particularly severe, and we conclude that the conclusions of the Crown are right.

9.        In relation to each of the fraudulent conversion counts to which you have pleaded guilty we impose a sentence of 2 years and 9 months' imprisonment, concurrent on each of them.  In relation to the malicious damage count we impose a sentence of 1 month's imprisonment consecutive.  In relation to resisting arrest we impose a sentence of 3 months' imprisonment, consecutive to the sentence imposed in respect of the fraud offences but concurrent with the sentence imposed in respect of the malicious damage.  We do not impose any separate penalty with regard to the breach of the orders imposed in the lower court.  That makes a total sentence of 3 years' imprisonment.

10.      In terms of compensation, much as we would like to be able to order compensation in favour of both the Association and the owner of the car, it is clear that the defendant has no assets of his own at all and his ability to earn after his release from prison will be very much diminished if non-existent.  It would not therefore be fair for us to impose an order upon him and we decline to do so.

Authorities

Bryce-Richards v Attorney General [2006] JLR Note 16.

R v Barrick (1985) Cr. App. R.78.

Whelan On Aspects of Sentencing in the Superior Courts of Jersey - Third Edition.

R-v-Clark [1998] 2 Cr. App. R. 137.

AG-v-Roberts 1998/92.

AG-v-Appleby 2002/229.

AG-v-Crocker [2003] JRC 071.

AG-v-Smith [2006] JRC 085.

AG-v-Mears [2008] JRC 217.