Jersey Unreported Judgments

Inferior Number Sentencing - embezzlement - larceny - fraud.

[2014]JRC014

Royal Court

(Samedi)

17 January 2014

The Attorney General

-v-

Andre Blaby

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

Age:  42.

Plea: Guilty.

Details of Offence:

The defendant was employed by a quarrying company as its weighbridge manager and cashier.  He embezzled two or three small cash payments per week, destroying the office-copy receipts, and failing to enter the transactions in the accounting system.  By this means he took a total of £24,490.07 over 5 years (Count 1).  He was also responsible for the payroll system from which he transferred an additional £300 to himself (Count 2).  Finally he purchased £180 of parts for his car, charging them to the company's account (Count 3).

Details of Mitigation:

Early guilty pleas, fully co-operative, good work record and voluntary service.  Carer for his ailing mother.

Previous Convictions:

No relevant convictions.

Conclusions:

Total: 18 months' imprisonment. 

Compensation order in a nominal amount sought.

Sentence and Observations of Court:

Following AG v Pallot [2010] JRC 122 the special circumstances of the defendant's mother warranted a reduction in the conclusions but not a departure from the well-established policy of custodial sentencing for such offending.

Total: 12 months' imprisonment. 

No order for compensation made.

D. J. Hopwood, Esq., Crown Advocate.

Advocate J. M. Grace for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced on the Indictment to which you have pleaded guilty which contains a charge of embezzlement, a charge of larceny and a charge of fraud.  The embezzlement involved embezzling from your employers, over a 5-year period, the sum of £25,000 or just under.  The larceny and the case of fraud involved much lesser sums. 

2.        This was a series of offences committed in breach of trust and the Court's policy on sentencing in cases of breach of trust has been very well established - unless there are exceptional circumstances then the Court imposes a custodial sentence.  These cases are always difficult for the Court because, invariably, there is a very large amount of mitigation which is available, as is the case here.  The cases that we have had before, however, do show that good character, full cooperation after detection, remorse, answering bail and the difficulties that may be faced in getting employment in the future; none of those things count as exceptional circumstances.  And really in the present case the additional factors, which your counsel has asked us to take into account, are your work in the Jersey Judo Association and Rugby Club and, more importantly I think for these purposes, the effect upon your mother with whom you live.  What was said in the case of AG-v-Oliveira [2012] JRC 018 unfortunately holds good still.  In the case of Mitchell (1987) 11 Cr. App. R. (S) 562 in the English Court of Appeal the Court said this:-

"It must not be thought that people who fail to consider the effect that their actions may have upon their own family are to be treated in any more sympathetic way than others.  We do not like having to do it but it seems to us that it is essential to make these matters clear."

That was endorsed by the Court in the case of Oliveira because so often in these cases there is a dramatic and hurtful impact upon the family.  We noted also in the case of AG-v-Pallot [2010] JRC 122 that that too was a case where there was a serious impact upon the family of the defendant.

3.        When one looks at all the facts of this case the breach of trust was particularly felt by your employer, that is obvious from the victim impact statement, which I am sure you have read.  That you were the sole employee in charge of that part of the business for most of the time and therefore, although one could say that the employer's systems were not as good as they might have been, in a sense the fact that you were the sole employee there increases the trust which your employer placed in you and, indeed, he describes in his victim impact statement as having considered you as a friend, which, as I say, makes it worse and it is quite clear from all the reports that we have seen that you recognise all that.  We understand that. 

4.        At the end of the day you have to be sentenced for the offences which you have committed.  We cannot find that there are any exceptional circumstances here and we therefore think that a custodial sentence needs to be imposed.  In the case of Pallot the Crown's conclusions which were otherwise, I think, absolutely right, of 18 months were reduced but the one reason that was given was because of special circumstances within the family and the fact that in that case the defendant's father would continue to need care, notwithstanding any support that was available for other members of the family.  For just the same reason we are going to reduce the conclusions here. 

5.        Therefore you are sentenced on Count 1 to 12 months' imprisonment, Count 2; 3 months' imprisonment, on Count 3; 3 months' imprisonment.  They are all to be served concurrently and therefore that makes a total of 12 months' imprisonment. 

6.        We have considered the question of a Compensation order.  We do not think that the financial circumstances are such that it is appropriate to make any Compensation order and we do not make it. 

Authorities

AG-v-Oliveira [2012] JRC 018.

Mitchell (1987) 11 Cr. App. R. (S) 562.

AG-v-Pallot [2010] JRC 122.

AG v Zielinski [2008] JRC 028.

AG v Mumot [2010] JRC 078.

AG v Hamon [2013] JRC 102.

Whelan on Aspects of Sentencing in the Superior Courts Of Jersey, Third Edition.