Jersey Unreported Judgments

Inferior Number Sentencing - fraud - attempted fraud - attempting to obtain money by deception.

[2014]JRC148B

Royal Court

(Samedi)

25 July 2014

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Clapham and Le Cornu`

The Attorney General

-v-

Richard Peter John McCallion

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

2 counts of:	Fraud (Counts 1 and 3).
1 count of:	Attempted fraud (Count 2).
1 count of:	Attempting to obtain money by deception (Count 4).

Age:  61.

Plea: Guilty.

Details of Offence:

McCallion was employed by Motor Mall as a car salesman on a probationary period.  At the end of the probationary period he was not offered permanent employment.  A customer to whom McCallion had sold a vehicle to for £14,000 was due to collect a car and Motor Mall noted that the purchase price had not been paid.  Enquiries with the customer revealed that she had paid the purchase price directly into a bank account details of which had been provided by McCallion by email. 

Investigation of his work email account revealed that he had provided the customer with his personal bank account details.  He had done this on a previous occasion with another customer and the amount involved on that occasion was £8,995 (Count 1: Fraud in the sum of £8,995 and Count 3: Fraud in the sum of £14,000).  The investigation revealed an attempted fraud for the sum of £19,470.41 and that another customer had been requested to make payment into McCallion's personal bank account but had paid cash directly to Motor Mall (Count 2). 

Whilst under investigation for these matters McCallion attempted to obtain £950 from his landlord by falsely stating that the cheque the Landlord had previously provided to McCallion had been lost when in fact the cheque had been banked by McCallion. 

Investigation of McCallion's bank account revealed that the sums referred to in Counts 1 and 3 were paid into his bank account at a time when his account balance was overdrawn.  He had taken holidays in Spain and in the Bahamas.  He had also paid €3,000 to an estate agent in Spain. 

When interviewed under caution he answered "no comment" to all relevant questions relating to the first three counts.  When subsequently interviewed in relation to Count 4 he disputed this offence and disputed the version of events provided by the Landlord and Managing Agent. 

The Crown approached the case on the basis that this was a clear breach of trust and that there were no exceptional circumstances.  An immediate custodial sentence was therefore appropriate.  The Crown had regard to the sequence of questions found in the case of Barrick. 

Details of Mitigation:

The Crown

Guilty plea.  He did not have good character albeit previous relevant convictions some 19 years ago.  He did not have the benefit of remorse.  No efforts to repay monies stolen.  Low risk of re-conviction.  Did not pose risk of harm towards public. 

The Defence

Guilty plea.  Apology offered in Court.  Expressions of remorse.  Claimed that had committed offences against his employer as felt aggrieved at the way he had been treated by management.  Not thinking straight at the time.  He did not consider the consequences.  Would like to repay the monies if he could.  Established and supportive relationship.  Suggested that his care of partner's elderly mother amounted to exceptional circumstances.  Low end of scale of offending.  Accepted breach of trust.  Described as a "broken man". 

Previous Convictions:

Theft, using false instrument for other than prescription for scheduled drug, obtaining property by deception.

Conclusions:

Count 1:	18 months' imprisonment.
Count 2:	18 months' imprisonment, concurrent.
Count 3:	18 months' imprisonment, concurrent.
Count 4:	6 months' imprisonment, consecutive.

Total: 2 years' imprisonment.

Compensation Order sought in the sum of £14,000 to be paid within 12 months of release from prison or 6 months' imprisonment in default.

Sentence and Observations of Court:

The defendant was sentenced for three counts of fraud/attempted fraud on employer and one count of attempting to obtain money by deception.  Counts 1-3 committed over a three month period and Count 4 two months later and aggravated by the fact that he was under investigations for Counts 1-3 and knew that at the time.  Not sophisticated offences.  The Court queried how he ever thought he was going to get away with it.  Deliberate dishonesty.  Court considered the Barrick questions and agreed with the Crown's assessment of the case save that it accepted that he had remorse.  The Court's policy well established that in such cases unless exceptional circumstances then immediate custodial sentence appropriate.  The Court did not accept that the care for partner's invalid mother amounted to exceptional circumstances.  There were no exceptional circumstances here.  Custody inevitable.  The Court considered all of the circumstances and taken into his account his age and plea, good character references etc.  The Court concluded that the right sentence on Counts 1 to 3 was 15 months' imprisonment on each count, concurrent.  Count 4 was a different offence and committed when he knew he was under investigation for the other counts.  No breach of trust there.  The correct sentence was one of 3 months', consecutive.  No Compensation Order as no ability to pay the same.  Matter for the former employer to take civil action if considered appropriate.

Count 1:	15 months' imprisonment.
Count 2:	15 months' imprisonment, concurrent.
Count 3:	15 months' imprisonment, concurrent.
Count 4:	3 months' imprisonment, consecutive.

Total: 18 months' imprisonment.

No Compensation order imposed.

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

Advocate L. Springate for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced on three counts of dishonesty in relation to a fraud or attempted fraud on your employer and one count of attempting to obtain money by deception from your landlady.  The first three offences were committed over a three-month period and the last offence came some two months later and is aggravated by the fact that you were under investigation and you knew it at the time for the other three offences. 

2.        The offences themselves were not sophisticated offences; indeed the Court cannot really understand how you thought you might ever have got away with them but, nonetheless, there was deliberate dishonesty in that when receiving monies made payable to your employer you paid the purchase price for these vehicles which you were selling directly into your own personal account. 

3.        The Court has considered all the Barrick [1985] 7 Cr. App. R. (S) 142 factors which are set out at paragraph 24 of the Crown's summary and, with the exception of the statement that you do not have the benefit of remorse because you have expressed that, both to the probation officer and indeed through your counsel to us today, we think the Crown's general summary of those Barrick factors is correct. 

4.        The Court's policy in relation to offences of breach of trust is well established; unless there are exceptional circumstances a custodial sentence follows, and in these circumstances that we have today the only exceptional issue which is put to us, and which I have to say we do not find to be exceptional, is the immobility of your partner's mother.  The need to care for elderly people has arisen in other cases before this Court - AG-v-Pallot [2010] JRC 122 is an example - and has not been found to be an exceptional circumstance, and in the present case we certainly do not find it to be an exceptional circumstance either, so in those circumstances a custodial sentence is inevitable. 

5.        We have looked carefully at all the circumstances of this case, taking into account your age, your guilty plea, the amount of money involved, the unsophisticated nature of the offending, and the short period over which the offending took place.  We think that the right sentence is one of 15 months' imprisonment on Counts 1 - 3, which will run concurrently.  In relation to Count 4, this was a different offence, and it is, as I say, aggravated by the fact that it occurred while you were being investigated on the other charges; nonetheless there is no breach of trust that we identify in that particular case, and we think the right sentence on Count 4 is 3 months' imprisonment, which will run consecutively and therefore makes a total of 18 months' imprisonment. 

6.        You have been described by your counsel as a broken man.  You have been sentenced by this Court for the offences that you have committed and once that is done then you will have to mend yourself in the future, which we have doubt you can do. 

7.        We are not going to impose any Compensation order in this case.  There is no obvious ability to pay it, and in those circumstances your former employers will have to take civil action if they consider that to be appropriate. 

8.        So you are sentenced to 18 months' imprisonment in all. 

Authorities

Barrick [1985] 7 Cr. App. R. (S) 142.

AG-v-Pallot [2010] JRC 122.

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

Whelan on Aspects of Sentencing in the Superior Courts of Jersey 3^rd Edition.

AG v Zielinski [2008] JRC 028.

AG v Oliveira [2012] JRC 018.

AG v Blaby [2014] JRC 014.