[2009]JRC229

ROYAL COURT

(Samedi Division)

27^th November 2009

The Attorney General

-v-

Ryan Jon Donachie

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

Age:  21.

Plea: Guilty.

Details of Offence:

Between the 25^th May, 2008 and 4^th February, 2009, the defendant stole £14,419.29 from his employers, Chex Ltd, making 24 fraudulent refunds to his bank account over the eight-month period.

The defendant had worked at Chex full time since November 2007.  As the defendant was the longest serving sales assistant, he was often left in charge when the owner and manager were on holiday or on buying trips.

In March 2009, after Donachie had been dismissed for an unrelated matter, they noticed that they owed £329.29 to the company which issued their PDQ terminal, the electronic machine through which card payments and refunds are processed.  Owing money from this terminal can only happen when the amount of refunds given out exceeded the takings for the same day. 

They reported the matter to the Police.  On Tuesday 3^rd March, 2009, the defendant was arrested and said “My card went missing for a period of time and cash appeared in my account”.  Receipts relating to the debit card in question were recovered from his flat, as well as items which had been bought with that card. 

His bank statements showed that he had received 24 payments amounting to £14,419.29.  In interview he denied knowing how to give refunds but said his co-workers knew how it was done.  He denied stealing from the business, and said he often lent this card out to other people.  He was unable to explain why he would do this when he had so little money in his account.  He was also unable to explain how or why funds had been credited to his bank account.  He said that one of his fellow workers had borrowed his debit card and alleged that the other co-worker had lost previous jobs through dishonesty. 

He was indicted on 15^th May, 2009, and entered guilty pleas to all charges, and sentencing was set down for 19^th June, 2009.  On 3^rd June, 2009, he told his then lawyers that he wished to change his plea to one of not guilty.  The matter was brought back before the Royal Court by another firm.  On 27^th August, 2009 there was a hearing where he sought to vacate his pleas.  His affidavit makes a serious allegation against one of his co-workers, whom he claims admitted defrauding the company himself.  This person denied speaking to the defendant as alleged.  That court held that there were no valid grounds for allowing the pleas to be withdrawn. 

In attempting to vacate his plea, much of the mitigating effect of pleading guilty had been lost, and attempts to blame others for these offences was seen as an aggravating feature. 

Details of Mitigation:

Youth, work record, residual credit for plea.

Previous Convictions:

No previous record for dishonesty.

Conclusions:

Total:  30 months’ imprisonment.

Sentence and Observations of Court:

Total:  27 months’ imprisonment. 

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

Advocate R. Tremoceiro for the Defendant.

JUDGMENT

THE BAILIFF:

1.        Donachie, you have pleaded guilty to 24 Counts of larceny as a servant.  In total you took just over £14,000 from your employer over an eight month period by arranging refunds to your bank account via your debit card.  It appears that you spent the money on a lifestyle which you could not afford.  This was a clear breach of trust, you were trusted by your employer and indeed, at times, you were left in charge. 

2.        Pleas of guilty normally attract considerable mitigation but you sought to withdraw your plea of guilty despite it having been entered with the benefit of legal advice.  Worse than that, you sought to put the blame on a fellow employee.  The Court refused your application but by your actions you have lost much of the mitigation which would otherwise have been available for the plea. 

3.        There is mitigation though.  We take into account the fact that you have no previous convictions for dishonesty; you have been in regular employment; we have read the references, both work and personal, which your Advocate has provided and we take into account your youth, you are only just twenty-one, as well as the residual benefit of the guilty plea.  But nevertheless the Court has a clear policy for offences of this nature where there is a breach of trust; custody is imposed save in exceptional circumstances.  We can see no exceptional circumstances here and a custody sentence is the correct sentence.  We have no criticism of the Crown’s conclusions but we think that a little additional mitigation can be given for your youth. 

4.        The sentence of the Court therefore is one of 27 months’ imprisonment, concurrent on each Count.

Authorities

AG-v-Zielinski [2008] JRC 028.

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

Pagett-v-AG [1984] JJ 57.

AG-v-Kirkham [2005] JRC 131.

AG-v-Buckley 2001/175.

AG-v-Harris [2004] JRC 020.

AG-v-Gray [2004] JRC 140.