Jersey Unreported Judgments

Inferior Number Sentencing - indecent assault - false pretences - motoring offences.

[2016]JRC148

Royal Court

(Samedi)

26 August 2016

Before     :

W. J. Bailhache, Esq., Bailiff, and Jurats Blampied and Thomas

The Attorney General

-v-

Carl Lewis Maton

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

First Indictment

1 count of:

Indecent assault (Count 1).

Second Indictment

8 counts of:	Obtaining goods by false pretences (Counts 1, 2, 3, 5, 6, 7, 8 and 9).
1 count of:	Attempting to obtain goods by false pretences (Count 4).

Third Indictment

1 count of:	Using a motor vehicle uninsured against third party risks, contrary to Article 2(1) of the Motor Traffic (Third Party Insurance)(Jersey) Law 1948 (Count 1).
1 count of:	Wrongful use of an insurance disc, contrary to Article 18(1)(a) of the Motor Traffic (Third Party Insurance)(Jersey) Law 1948 (Count 2).
1 count of:	Failing to produce a driving licence when required by a police officer, contrary to Article 13(1) of the Road Traffic (Jersey) Law 1956 (Count 3).
1 count of:	Failing to produce a registration document, contrary to Article 18(1) of the Motor Vehicle Registration (General Provisions)(Jersey) Order 1993 (Count 4).

Age:  23 but 21 at time of indecent assault and 22 at time of motoring charges.

Plea: Guilty.

Details of Offence:

Indictment 1

The defendant collected the victim aged 14 in his car from his house at approximately 9:30pm.  They drove to Grouville and the defendant stopped the car in a dark part of the Queen's Valley Reservoir car park staying there for approximately two hours.  The defendant told the victim that where he had stopped was a good place to smoke "weed", and began to roll a cigarette.  The victim was scared as "the smell was really funny".  The defendant whilst seated in the driver's seat changed from his jeans into jogging bottoms.  The victim was sitting in the passenger seat.  The defendant asked if the victim had an erection and then proceeded to touch the victim on his upper thigh over his trousers.  He asked the victim if he had been masturbating a question he regularly asked the victim when they communicated on "Snapchat."  The following day the victim told his father what had happened the previous evening. 

In interview the defendant gave various explanations as to how the complaint may have arisen but maintained throughout that it was all a misunderstanding.  He suggested that the victim had instigated the sexual conversation that took place. 

Indictment 2

Less than two months after the indecent assault, the defendant committed eight dishonesty offences.  At the time of these offences, 18^th March to 2^nd April, 2015, the defendant was employed by HSBC Bank Plc ("HSBC") as a Contact Centre Senior Premier Associate.  The defendant had worked for HSBC since June 2012, and was paid a basic salary of about £24,000 with a shift allowance of about £6,000.  He lived at home with his parents. 

In late November 2014, Mr Fielder an HSBC International Customer, wished to purchase a car using his debit card.  Due to the size of the proposed transaction (in the region of £11,500), the seller contacted the clearing bank by telephone.  An employee of the clearing bank contacted HSBC and spoke to the defendant.  As is the usual procedure, the defendant provided two security question and their answers to the clearing bank.  The customer was asked the questions and gave the correct answers.  The defendant authorised the payment.  This procedure was entirely in order.  However, in the course of the telephone the employee of the clearing bank spontaneously gave the defendant the CVC code of the customer's card, which was not required.  The defendant wrote down the details and kept them.  The defendant then proceeded to use Mr Fielder's card details to make fraudulent transactions.  During the whole period of offending he remained employed by HSBC. 

Count 1

On 18^th March, 2015, the defendant telephoned the IQ Store in Beresford Street.  He gave his father's name and ordered an iPhone 6 costing £499.  The defendant then gave Mr Fielder's debit card details for payment.  The defendant went to the store the same day and collected the iPhone.  He started using it almost immediately. 

Count 2

On 18^th March, 2015, (the same day as the IQ purchase), the defendant used Mr Fielder's card to pay an £800 telephone bill due to Jersey Telecom. 

Count 3

The following day (19^th March, 2015), the defendant booked flights to the value of £235.93 on the Easyjet website using Mr Fielder's card to pay. 

Count 4

On 20^th March, 2015, the defendant attempted to buy goods to the value of £1,017 from the online Apple shop).  The bank stopped the transaction and so the purchase was unsuccessful. 

Count 5

On 29^th March, 2015, the defendant used Mr Fielder's card to pay for flights to the value of £239.98 from Flybe. 

Count 6

 On 30^th March, 2015, the defendant booked a hotel room costing £69 at the Hilton Gatwick using Mr Fielder's card for payment. 

Count 7

The same day (30^th March, 2015), the defendant bought a computer processor worth £78.88 from Amazon using Mr Fielder's card. 

Count 8

On 2^nd April, 2015, the defendant bought a Pioneer Multimedia Player for £272.08 from Amazon using Mr Fielder's card. 

Count 9

That same day (2^nd April, 2015), the defendant booked a room with ETAP Hotel to the value of £109.25 using Mr Fielder's card for payment. 

The offences were discovered after Mr Fielder reported misuse of his card.  The investigation carried out by HSBC showed that the defendant was responsible for carrying out the transactions. 

The defendant was interviewed by police and admitted that he had carried out all of the fraudulent transactions, but claimed that he had mistakenly used Mr Fielder's details instead of his own.  The defendant was further interviewed after additional enquiries had been made and when it was pointed out that he did not in fact have a debit card at the time of the offences, the defendant admitted that he had knowingly used Mr Fielder's card. 

Indictment 3

Motoring Offences (Counts 1-4)

At about 2:30am on 23^rd January, 2016, Honorary Police Officers were on duty at St Catherine's.  They saw a black Nissan Skyline R33 GTR ("the car") pull into the gravel carpark.  They spoke to the defendant, who was driving the car.  One of the officers noticed that the insurance disc displayed on the windscreen related to a different car.  After caution the defendant told the officers that the disc related to his mother's car.  Suspecting that the car was uninsured, the officer impounded it.  The defendant was warned to attend St Martin's Public Hall at 7pm on 27^th January, 2016, to produce his insurance documents, his driving licence, and his registration documents.  He failed to attend.  On 25^th March, 2016, the defendant attended at Police Headquarters and was interviewed.  He admitted that he had driven the car uninsured and that he had failed to produce his documents at St Martin's Public Hall.  He told the officer that he could not produce his driving licence as it had been surrendered to the Viscount.  This was not in fact true, the driving licence had never been handed in to the Viscount. 

Aggravating features

Indictment 1

Breach of trust, the defendant was known and trusted by the victim and the victim's father; the defendant isolated the victim in a dark carpark, where he was unable to leave the car without being stranded. 

Indictment 2

A gross breach of the trust placed in the defendant by his employers. 

Indictment 3

Committed whilst on bail to the Royal Court. 

Details of Mitigation:

The defendant has pleaded guilty, although the plea to the indecent assault charge was entered only ten days before trial and the victim had been informed that he was going to have to give evidence in the Royal Court trial.  He has no previous convictions for dishonesty or sexual offences.  The defendant was 21 when he committed the offences. 

Previous Convictions:

Four previous convictions for minor motoring matters which were disregarded for sentencing purposes. 

Conclusions:

First Indictment

Count 1:

6 months' imprisonment.

Second Indictment

Count 1:	15 months' imprisonment, consecutive to the First Indictment.
Count 2	15 months' imprisonment, concurrent to Count 1 of the Second Indictment.
Count 3:	15 months' imprisonment, concurrent to Count 1 of the Second Indictment.
Count 4:	15 months' imprisonment, concurrent to Count 1 of the Second Indictment.
Count 5:	15 month's imprisonment, concurrent to Count 1 of the Second Indictment.
Count 6:	15 months' imprisonment, concurrent to Count of the Second indictment.
Count 7:	15 months' imprisonment, concurrent to Count 1 of the Second indictment.
Count 8:	15 months' imprisonment, concurrent to Count 1 of the Second indictment.
Count 9:	15 months' imprisonment, concurrent to Count 1 of the Second Indictment.

Third Indictment

Count 1:	3 months' imprisonment, consecutive to the First and Second Indictments, together with disqualification from driving for a period of 6 months.
Count 2	3 months' imprisonment, concurrent to Count 1 of the Third Indictment.
Count 3:	No separate penalty.
Count 4:	No separate penalty.

Total: 24 months' imprisonment plus disqualification from driving for a period of 6 months. 

Order sought under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 5 years elapse before the defendant is permitted to apply to no longer be subject to the notification requirements to commence from the date of sentence. 

Restraining Order sought for a period of 5 years to commence from the date of sentence, with the following conditions:

i)              That the defendant is prohibited from being alone with any male he knows or believes to be under the age of 16 years.  He shall be considered to be alone if there is not present an adult over the age of 21 who is aware of his offending history.

ii)             That in circumstances where the defendant finds himself alone with any males under the age of 16 years, accidentally or inadvertently, he has a positive duty to remove himself from that situation as soon as reasonably possible. 

Pursuant to Article 3(1) of the Criminal Justice (Anonymity in Sexual Offence Cases)(Jersey) Law 2002 the victim shall be the subject of a prohibition from publication of his identity during his lifetime. 

Costs Order sought towards the prosecution in the sum of £1,000.

Sentence and Observations of Court:

First Indictment

Count 1:

18 months' Probation Order.

Second Indictment

Count 1:	300 hours' Community Service Order, equivalent to 21 months' imprisonment, consecutive to the First Indictment.
Count 2	300 hours Community Service Order, equivalent to 21 months' imprisonment, concurrent to Count 1 of the Second Indictment.
Count 3:	300 hours' Community Service Order, equivalent to 21 months' imprisonment, concurrent to Counts 1 and 2 of the Second Indictment.
Count 4:	300 hours' Community Service Order, equivalent to 21 months' imprisonment, concurrent to Counts 1, 2 and 3 of the Second Indictment.
Count 5:	300 hours' Community Service Order, equivalent to 21 months' imprisonment, concurrent to Counts 1, 2, 3 and 4 of the Second Indictment.
Count 6:	300 hours' Community Service Order, equivalent to 21 months' imprisonment, concurrent to Counts 1, 2, 3,4 and 5 of the Second indictment.
Count 7:	300 hours' Community Service Order, equivalent to 21 months' imprisonment, concurrent to Counts 1, 2, 3, 4, 5 and 6 of the Second indictment.
Count 8:	300 hours' Community Service Order, equivalent to 21 months' imprisonment, concurrent to Counts 1, 2, 3, 4, 5, 6 and 7 of the Second indictment.
Count 9:	300 hours' Community Service Order, equivalent to 21 months' imprisonment, concurrent to Counts 1, 2, 3, 4, 5, 6, 7 and 8 of the Second Indictment.

Third Indictment

Count 1:	300 hours' Community Service Order (included in the Second Indictment total), equivalent to 3 months' imprisonment, concurrent to the First and Second Indictments, together with disqualification from driving for a period of 6 months.
Count 2	300 hours' Community Service Order (included in the Second Indictment total), equivalent to 3 months' imprisonment, concurrent to Count 1 of the Third Indictment.
Count 3:	No separate penalty.
Count 4:	No separate penalty.

Total: 300 hours' Community Service Order, equivalent to 24 months' imprisonment, plus disqualification from driving for a period of 6 months. 

Order made under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 5 years elapse before the defendant is permitted to apply to no longer be subject to the notification requirements to commence from the date of sentence. 

Restraining Order made for a period of 5 years to commence from the date of sentence, with the following conditions:

i)              That the defendant is prohibited from being alone with any male he knows or believes to be under the age of 16 years.  He shall be considered to be alone if there is not present an adult over the age of 21 who is aware of his offending history.

ii)             That in circumstances where the defendant finds himself alone with any males under the age of 16 years, accidentally or inadvertently, he has a positive duty to remove himself from that situation as soon as reasonably possible. 

Pursuant to Article 3(1) of the Criminal Justice (Anonymity in Sexual Offence Cases)(Jersey) Law 2002 the victim shall be the subject of a prohibition from publication of his identity during his lifetime. 

No Order for costs made.

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

Advocate M. P. Boothman for the Defendant.

JUDGMENT

THE BAILIFF:

1.        Mr Maton, you have pleaded guilty to a charge of indecent assault and I will come onto the details in due course, but as a result of your guilty plea you are automatically subject to the notification requirements under the Sex Offenders (Jersey) Law 2010.  Mr Maton, you are able to apply to have those notification requirements disapplied to you, you can apply to Court for that to happen, but the Court fixes a minimum period of 5 years before you can make that application and that 5 years runs from today.  If you do not make an application you continue to be subject to the notification requirements because they carry on, it is just that if you wish to apply to have them disapplied to you then you cannot do so for 5 years. 

2.        We have also considered the question of the Restraining Orders which have been requested by the Crown.  Having regard to the material which is contained in Dr Briggs' report and into the social enquiry report, we find that on the balance of probabilities you do pose a threat of serious sexual harm and that it is necessary to impose the restraining or restrictive orders under Article 10.  Those are that:-

(i)        You are prohibited from being alone with any male that you know or believe to be under the age of 16 years; you are considered to be alone if there is not present an adult over the age of 21 years who is aware of your offending history.

(ii)       That in circumstances where you find himself alone with any males under the age of 16 years, accidentally or inadvertently, you have a positive duty to remove yourself from that situation as soon as reasonably possible. 

Those restrictive orders will remain in force for a period of 5 years from today and I must warn you that if you breach those restrictive orders that of itself would be a criminal offence and render you liable to prosecution under the Sex Offenders Law. 

3.        The circumstances of that indecent assault were that you were with a 14 year old boy, it was getting late in the evening, 9:30pm, and you had driven him to a dark lane where you stopped the car, you changed your trousers into joggers, and you touched him on the upper thigh over his trousers and, at the same time, had a sexually suggestive conversation with him.  The result was that he was very upset by the incident. 

4.        Despite the fact that he was upset the Court considers that that indecent assault falls right at the bottom of the scale of indecent assaults of which this Court has to deal and it would not generally call for a custodial sentence. 

5.        I now turn to the Second Indictment which contains nine counts of obtaining money or goods by false pretences.  You obtained that money from your employer where you were working as an associate.  The circumstances in which you obtained it were opportunistic.  You were contacted by the seller of goods who gave you one of your employer's customers' debit card details and you were asked to give clearance of the payment that was to be authorised, which you did.  Wrongly you were given the CVC code of the customer's card and you did not need to have that for the purposes of authorising payment.  You should not have been given it but having been given it, you noted it and kept those details, both the card detail and the CVC detail, which you subsequently used for the purposes of committing the offences on the Second Indictment. 

6.        The total which was involved which you obtained, either in terms of goods or in services, was £2068.19 and the further charge of attempting to claim services which had a value of £1,017.  The offending took place over approximately two weeks. 

7.        You were an employee and you were in breach of the trust which your employer was entitled to require of you and the Court's policy is generally, when looking at these sorts of cases, to impose a custodial sentence unless there are exceptional circumstances.  Advocate Boothman has put before us the case of Kirkland-v-AG 2001/200 in September 2001 where at paragraph 18 the Superior Number said this:-

"We believe that the correct position to be drawn ... and the Court's general sentencing practice is this.  Where a case is at the lower end of the scale, whether because of the degree of trust; the amount taken; the period of offending; or any other relevant circumstance of the offence, the Court may impose a non-custodial sentence.  It is not a case of finding exceptional circumstances; that procedure is to be maintained for offences of such seriousness as would otherwise require custodial sentences...."

8.        So what the Superior Number was saying in that case was that we have to identify the seriousness of the offending and it has to be said that in nearly every case before this Court where there are charges of this nature, the amount involved is such that generally it will be necessary to impose a custodial sentence unless the exceptional circumstances test comes to be applied and we have given some very careful and anxious thought to that in this case because the Court has real concerns about your approach to the question of honesty.  We have those concerns, not just because of the offences which you have committed, but the pattern of dishonesty that can be seen and the way you committed the insurance offences and your reaction to them which we will come on to deal with shortly, the way in which you dealt with your interviews with the police, the way in which you reacted, responded to Dr Briggs when he spoke to you and possibly also the social enquiry officers at the Probation Office.  So we have some very real concerns about your approach to questions of honesty and that is one of the circumstance which the Court is required to take into account applying that list of things which in Kirkland the court summarised.  The amount taken, the degree of trust and the period of offending are all, of course, relevant as well. 

9.        Here we are at the lower end of the scale in terms of the amount taken.  We accept that the offences were opportunistic offences in the sense that you did not ask for the CVC number and you did not need to be given it and, contrary to what the Crown has suggested, we do take the view that this was a series of unsophisticated and immature frauds. 

10.      Even so, we have looked anxiously at what is the right sentence to impose because of the escalating criminality.  At the end of the day we have the view that because of your youth, at the time you committed the offences, you were 21, therefore you are in the margins as was indicated by the AG-v-O'Shea [2010] JRC 040 case, that your youth and the possibility that a prison sentence would not be in the best interests of the community, has swayed us against a custodial sentence and so we are going to impose a period of community service and a Probation Order and I will come onto the details of that in just a moment. 

11.      The Third Indictment contained offences charged under the Motor Traffic Law of which the most serious are the driving a vehicle uninsured against third party risks and the wrongful use of the insurance disc, contrary to the Motor Traffic (Third Party Insurance)(Jersey) Law 1948.  The Court regards driving without insurance as extremely serious, it puts or is capable of putting innocent third parties at serious risk and we therefore think that in principle a custodial sentence might have been appropriate for those charges but, having taken the view we have in relation to the Second Indictment, that we are going to impose community service there.  We think the right course is to impose a community service on the driving without insurance and wrongful use of insurance disc charges but they are separate charges and therefore the default sentences which I will come onto again in a moment, will be served consecutively. 

12.      It is suggested by the Probation Service that you would benefit from a period of 18 months' probation.  That allows you to explore your sexual behaviour in more detail but it also will allow, in particular, exploration of your approach to questions of honesty which we regard as being something which you need to address. 

13.      In those circumstances you are sentenced as follows.  You are sentenced to probation for a period of 18 months and you must perform, in accordance with the usual rules, with any probation Order which will be explained you after you leave court, and you are sentenced to 300 hours' community service.  The Probation Order is imposed in relation to Count 1, the indecent assault charge in particular and we do not impose a custodial sentence.  But in relation to the other charges you are sentenced on the Second Indictment to 300 hours on each count, concurrent, with the equivalent of a custodial sentence of 21 months' imprisonment.  In relation to the Third Indictment you are sentenced on Count 1 to 300 hours community service, which is served concurrently, there is no extra amount being added to that, but if you do not perform the community service the amount for which you would be sentenced a custodial sentence the equivalent is 3 months which would be served consecutively.  So the total is 300 hours community service plus probation for 18 months and we make it plain that if you do not perform the community service or if you breach the Probation Order in any sense at all and are brought back to this Court, then your sentences would be 21 months' imprisonment on the dishonesty offences and 3 months' consecutive on the insurance offences.  There is no separate penalty on Counts 3 and 4 of the Third Indictment.  In addition you are disqualified from driving for 6 months on the insurance offence (Count 1) of the Third Indictment. 

14.      We are not going to make any order for costs in this case. 

15.      Mr Maton, you can regard yourself as coming within a whisker of a custodial sentence here.  We have taken the view we have partly because of your employment and partly because of your age and partly because you seemed to be getting your life back together and we think it is in the community's interest that you should serve community service and have a probation Order so it is very much an individualised sentence to that extent.  Take advantage of that. 

Authorities

Sex Offenders (Jersey) Law 2010.

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

Kirkland-v-AG 2001/200.

AG-v-O'Shea [2010] JRC 040.

AG-v-Holland [2008] JRC 061.

AG-v-Self [2010] JRC 022.

AG-v-Dauny [2010] JRC 141.

AG-v-Byrne [2011] JRC 060.

AG-v-Oliveira [2012] JRC 018.

AG-v-Knowles [2014] JRC 240.

AG-v-Lusk [2015] JRC 236.