Jersey Unreported Judgments

Number Sentencing - larceny as a servant.

[2017]JRC168

Royal Court

(Samedi)

13 October 2017

Before     :

Sir William Bailhache, Bailiff, and Jurats Olsen and Sparrow.

The Attorney General

-v-

David Timothy Keith Quemard

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

50 counts of:

Larceny as a servant (Counts 1 to 50).

Age:  46.

Plea: Guilty.

Details of Offence:

Count 1 - Larceny as a Servant

(Howtex)

During the police investigation the defendant provided police with a USB pen drive which was found to contain some 117 DST files with a total value of approximately £1,400 which had been created whilst he was employed by Howtex.  DST files are created when a JPEG or PDF file is converted by software, in a process called 'digitizing', in order to make the image compatible for use with an embroidery machine.  Digitizing is charged at a set fee per logo and, once completed, the DST file can be used as many times as required.  The defendant was authorised to use these files as part of his working role, but was not permitted to retain or use them outside of his employment.

Counts 2-47 - Larceny as a Servant

(Lyndale Sports; Printing & Embroidery)

The defendant, who was in a position of trust, began stealing from Lyndale Sports within seven months of commencing his employment with them.  The offences began one month after the defendant set up his own business "Interior Linens" on 6^th February, 2013, to which he diverted several payments; usually by providing that company's bank account details in presenting invoices to Lyndale customers.  Offences were committed in a variety of ways including stealing stock items; ordering stock and logos through Lyndale for use by his own business; presenting customers of Lyndale with invoices from his own business for payment; and stealing cash payments made by Lyndale customers.  The defendant stole Lyndale stock and provided printing and embroidery services to the companies and individuals set out in the Indictment at Table A, to the prejudice of Lyndale in the amounts therein totalling almost £16,000, though that does not account for the costs of the stolen stock items.

Count 48 - Larceny as a Servant

(Lyndale Sports; Clothing)

Whilst looking for details of a customer order when the defendant was on leave, the owner of Lyndale happened upon an invoice from one of their suppliers for a number of short-sleeved chef shirts and hats to a value of £240.75.  This invoice was addressed to Interior Linens, the defendant's company.  In interview the defendant admitted ordering the items, stating that his intention was to pay for them himself.  However, no payment was ever made to the supplier from the defendant's bank accounts and, upon checking paid invoices, it was clear that this bill of £240.75 was settled with the supplier by Lyndale.

Count 49 - Larceny as a Servant

(Lyndale Sports; Vinyl)

The owners of Lyndale confronted the defendant at work in relation to the suspected larcenies.  As he drove away after the meeting it was noted by one of the Directors of Lyndale that the defendant had the words "Interior Linens" advertised on the rear window of his car.  In interview the defendant admitted that the advertisement was made at work out of vinyl stolen from Lyndale.  This vinyl cost £6 per metre and the advertisement was estimated to be approximately four metres in length.

Count 50 - Larceny as a Servant

(Lyndale Sports; Embroidery Logo Templates)

Count 50 relates to DST files which were misappropriated from Lyndale in the same manner as those stolen from Howtex.  Ten such files were recovered from the USB pen drive provided to police by the defendant during the investigation, at a value of approximately £12-£15 per file.

Aggravating Features

The offences were committed in breach of a position of trust bestowed upon him by his employers.

The defendant has previous convictions for offences of dishonesty involving breaches of trust.  A number of clients granted the defendant access to their homes in order for him to carry out window cleaning services and he took the opportunity to steal from them.

The financial loss sustained by Lyndale Sports Limited is unlikely to be recovered.

Details of Mitigation:

Despite initially trying to minimise his offending in interview, the defendant did eventually make full admissions to the Police and entered guilty pleas to all counts on indictment.

Guilty plea entered on indictment.

The defendant has shown genuine remorse for his actions and has a supportive network of family and friends.

Delay in bringing the matter to Court.

Previous Convictions:

Three convictions for 11 offences, including 10 theft and kindred offences (break and entry, illegal entry and larceny from a dwelling) plus one public order offence and a breach of a Probation Order.  Parish Hall Enquiries for a number of minor motoring offences for which he was fined.

Conclusions:

Count 1:	3 months' imprisonment.
Counts 2 - 47	27 months' imprisonment, consecutive.
Count 48:	27 months' imprisonment, concurrent.
Count 49:	27 months' imprisonment, concurrent.
Count 50:	27 months' imprisonment, concurrent.

Total: 30 months' imprisonment.

Compensation Order sought in the sum of £16,300.45.

Sentence and Observations of Court:

Count 1:	3 months' imprisonment.
Counts 2-50	18 months' imprisonment, concurrent but consecutive to Count 1.

Total: 21 months' imprisonment.

No Compensation Order made.

R. C. P. Pedley, Esq., Crown Advocate.

Advocate J. M. Grace for the Defendant.

JUDGMENT

THE BAILIFF:

1.        You are here to be sentenced on an Indictment where you are charged with 50 counts of larceny as a servant.  Count 1 related to one employer and Counts 2-50 related to a different employer.  The offending in relation to Count 1 took place at some point between 2012 and the offending in relation to the second employer took place over 2 year period between 2012 and 2014.  The circumstances in relation to that second employer was that within seven months of going to work for them you started your own company and the offences as described in the summary were committed in a number of different ways, including stealing stock items, ordering stock and logos for use for your own business, presenting customers of your employer with invoices from your own business for payment, stealing cash payments made by the employer's customers and also undertaking work for your own business during hours that you were paid to work for the employer.  You stole their stock, you provided printing and embroidery services to the companies and individuals in question who would be customers of the employer. 

2.        The amount taken totalled some £16,000 although that did not account for the cost of the stolen stock items. 

3.        This Court has said on many occasions that unless there are exceptional circumstances a sentence of imprisonment is inevitable for dishonesty where there is a serious breach of trust and here there was a total abuse of trust.  You were in sole charge of the business.  It was explained to us by Advocate Grace that you dealt with orders for new business, stock, physical designs, you delivered goods, you received payment from customers, you were responsible for invoicing; and while it may have been foolish for the employer to leave you in that position without checks and balances, which was what Advocate Grace really put to us, all that does is it emphasises the extent of your own abuse of the trust which was instilled in you by the employer.  It is not a question, as you have written to us in your letter of being stupid.  It is a question of being dishonest and that is unfortunately what you were. 

4.        It is said to us by Advocate Grace that the case of Kirkland-v-AG 2001/200 justifies avoiding a custodial sentence; that involved dishonesty to the extent of some £3,000 but even so, the court would not take the view that that was such a small sum of money as did not pass the custody threshold and, in any event, this case concerns considerably more than that.  We are satisfied the custody threshold is comfortably passed and therefore there would need to be exceptional circumstances if we were to avoid a custodial sentence.  We cannot see that there were any in this case.  You have rightly expressed remorse for the offending which you have committed and we accept that and take that into account and if your former employer reads the report of this case no doubt she will read that that remorse has been expressed by you and as you have said in your letter to us, you want to present your apologies to her directly and no doubt she will be able to read that and that would be a matter for her to contemplate.  That goes to your credit that you make that apology.  You are worried about the effect on your family but it is right that I mention again what has been previously said in this court where the case of Mitchell (1987) 11 Cr. App. R. (S) 562 in the English Court of appeal resulted in the Court saying this:-

"It must not be thought that people who fail to consider the effect that their actions may have on 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."

And the other way of putting that is that it is not right to say to us what about my family because the truth is you should have thought about your family before you committed the offences and that is the approach that the Court takes. 

5.        We have considered everything which is in the social enquiry report and that your counsel has put to us very fully.  We think that the conclusions that have been moved for are too high.  In normal circumstances we would have been imposing 3 months' imprisonment on Count 1 and 21 months' imprisonment, consecutive, on Counts 2 to 50, making a total of 24 months' imprisonment.  But we have looked at the timeline that has been produced and we recognise that you have the additional mitigation that the prosecution has been hanging over you for some time and we are going to take that into account and therefore on that ground we are going to reduce the sentence on Counts 2 to 50 by 3 months to 18 months' imprisonment.

6.        You are sentenced to 3 months' imprisonment on Count 1 and 18 months' imprisonment, consecutive, on Counts 2 to 50, which makes a total of 21 months' imprisonment.  That reflects in our view an appropriate sentence for the conduct which you announce you are sorry about, which we understand. 

7.        We have decided not to impose a Compensation Order.  This is not because your employer should not have a Compensation Order, it is simply that the Court does not impose Compensation Orders unless satisfied that there are the means to pay.  We are not satisfied that you have the means to pay it and so we are not going to impose a Compensation Order.  That is not to say that if you get the opportunity in the fullness of time to repay the money you should not think of doing so, that would be an appropriate thing to do. 

Authorities

Kirkland-v-AG 2001/200.

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

AG v Arnold [2017] JRC 133.

AG v Oliveira [2012] JRC 018.

AG v Donachie [2009] JRC 229.

AG v Zielinski [2008] JRC 028.

AG v Picot 1990/74.

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

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