Jersey Unreported Judgments

Inferior Number Sentencing - Larceny

[2021]JRC062

Royal Court

(Samedi)

4 March 2021

The Attorney General

-v-

James Arthur Baker

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

Age:  39.

Plea: Guilty. 

Details of Offence:

On 17^th August, 2006, the defendant started working for Sure (Jersey) Limited as a Retail Sales Consultant.  He was later promoted to Team Leader and was dismissed for gross misconduct on 29^th December 2015.

In October and November 2015, he stole four mobile phones from his employer and sold them to an unsuspecting third party, Person A, for financial gain (Counts 2, 26 and 29).  Count 3 concerns the receipt of the money from that third party (who had given one of the phones to his friend, Person B, also unsuspecting, and paid it to the defendant).

He booked the devices out of Sure stock unlawfully and created a fictitious invoice on the computer system in respect of each phone to make it appear that they had been sold in genuine transactions. 

In two cases, the false invoice recorded the sale of the phone with a 100% discount, such that no money was payable to Sure.  In the other two, the false invoices made it appear that the phones were linked to new contracts set up on existing customer accounts.  The account holders were unaware that the contracts had been linked to their accounts.  The defendant used his knowledge of the computer system to ensure that the contract was created in such a way that it would not be billable to the customer and would therefore not arouse suspicion.

The offending was not discovered until his employer carried out a review of mobile phone sales in November 2015.  The police investigation was complex and lengthy due to the technical enquiries that needed to be made in respect of Sure's computer systems in an effort to identify who made the fictitious transactions.

The defendant was not co-operative with the investigation, denying any involvement in the thefts when discovered by management, and maintained his denials in police interview, pointing to his colleagues as potential suspects.

Details of Mitigation:

Guilty plea (albeit not entered at the earliest opportunity).  Delay due to lengthy and technical Police investigation.

Previous Convictions:

One conviction for common assault in 2017. 

Conclusions:

Total:  180 hours' Community Service.

Compensation Orders sought in the sums of £912 (Person A) (3 weeks' imprisonment in default) and £262 (Person B) (7 days' imprisonment in default).

Sentence and Observations of Court:

Conclusions granted. 

M. R. Maletroit Esq., Crown Advocate.

Advocate A. M. Harrison for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        The defendant stands to be sentenced for the larceny of four mobile phones from his employer, Sure (Jersey) Ltd and for laundering the proceeds of sale of those mobile phones.  The value of the phones is £2,374 and he sold them on to two purchasers for £1,162.  The theft of these phones was discovered in December 2015 when the defendant was dismissed for gross misconduct.  The discovery of these thefts led to a lengthy investigation due to the complex nature of the employer's computerised systems and a large number of other suspicious transactions that required investigating. 

2.        The defendant's progress through the criminal justice system has been slow and he first appeared in the Magistrate's Court on 23^rd October, 2019.  The defendant has a previous conviction for an incident of domestic violence for which he received Community Service which he completed, but he is otherwise of good character and is assessed by the Probation Department at a low risk of reconviction. 

3.        We have considered the factors set out in the case of R v Barrick [1985] 7 Cr App R (S) 142.  The offences, which were committed over six weeks, are serious involving the creation of fictious invoices by a trusted member of staff.  The defendant was a Team Leader and had been employed for some ten years.  He informed the Probation Officer that he and his partner were experiencing financial difficulties and he saw an opportunity for financial gain. 

4.        In terms of mitigation he has pleaded guilty and, as we have said, has no relevant previous convictions.  He is and has been in consistent employment and is supported by family and friends.  He has written us a good letter of remorse and we have received many good references on his behalf.

5.        We have been referred to a number of cases before this Court of larceny by a servant by way of example of the Court's policy that such offences are punishable by custodial sentence in all but the most exceptional circumstances.  Those cases involved thefts of money or items of a higher value than here, although as Crown Advocate Maletroit points out, this is not the principle factor in assessing the degree of seriousness.  As the prosecution say, the factor that stands out in this case is the delay, the offences having taken place over five years ago.  This, combined with the defendant's assessment as being at a low risk of reconviction and the other mitigation available to him, has led the prosecution to move for a departure from the Court's usual policy, namely for the imposition of the sentence of Community Service and we accept those conclusions.

6.        On each of the four counts you are sentenced to 180 hours' Community Service which is equivalent to 12 months' imprisonment, that is concurrent, so the total is 180 hours' Community Service and a total equivalent of 12 months' imprisonment.

7.        We make Compensation Orders in favour of the two persons who purchased the phones from the defendant in good faith namely, £912 in favour of Person A, payable as to £100 per month with a default sentence of 3 weeks' imprisonment and £262 in favour of Person B, payable as to £50 per month with a default sentence of 7 days in prison.

Authorities

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

AG v Arnold [2017] JRC 133

AG v Oliveira [2012] JRC 018

AG v Pallot [2010] JRC 122

AG v Donachie [2009] JRC 229

AG v Picot 1990/074