Inferior Number Sentencing – larceny as a servant.

[2012]JRC018

Royal Court

(Samedi)

20 January 2012

The Attorney General

-v-

Gualdino Sancho Oliveira

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

Age:  27.

Plea: Guilty.

Details of Offence:

The defendant had worked for the Jersey Potteries since 2003.  He was initially employed as a snack bar assistant; in 2007 he was promoted to Assistant Manager working in a number of different food outlets. 

In February 2010 the defendant was promoted to Manager and took over the running of the Jersey Pottery Colomberie branch café.  Shortly after this the management became increasingly concerned that monies were missing, in particular four occasions were identified when the defendant had failed to bank monies from the café.  The matter was reported to the police however there was insufficient evidence to support a prosecution. 

The company held an internal disciplinary hearing at which the defendant admitted not following the companies banking procedures but denied any knowledge of the missing monies.  The company granted the defendant the benefit of the doubt and he was permitted to continue in his role.  Nonetheless concerns about the drop in takings at the Colomberie café remained. 

The company installed a computerised accounts system that became operational in July.  The new computer system identified six occasions in July and August 2011 when monies totalling £5,507 were taken at the café but not banked. 

On 5^th August, 2011, the management held a meeting with the defendant regarding the missing monies, his failure to follow the correct banking procedures, and the banking paperwork and bank deposit receipts being missing.  It was put to the defendant that he had been deliberately banking several days late in order to cover for the fact that some of the monies were missing.  It was pointed out to the defendant that the safe was empty and the previous days takings were missing.  The defendant then responded “If there is anything missing I will pay it back”, he then broke down and admitted that he had stolen the monies.  The defendant was subsequently suspended by the company and the matter was reported to the police. 

In interview the defendant admitted:-

That on four occasions during 2010 he had stolen the café’s takings amounting in total to £4,500 (Count 1). 

That on six occasions in 2011 he had stolen the café’s takings amounting in total to £5,507 (Count 2). 

That on unspecified occasions throughout 2010 and 2011 he had stolen further monies from the café amounting to a minimum of £4,000 (Count 3). 

That he had deliberately done the banking for the café in arrears and falsified entries in the bank paying book in the hope that the missing monies would go unnoticed. 

That he had spent some of the monies on essentials for himself, his partner and their child, and that some of the monies had been spent on luxury items such as a holiday abroad, travel for family members to come and visit, meals out and electrical items. 

Details of Mitigation:

Early guilty plea; cooperation with the police; letter of regret and apology presented to the Court; no previous convictions; girlfriend and 21 month old daughter to support; had got a new job and offered to repay the monies; letter from his new employer; positive social enquiry report.

Previous Convictions:

None.

Conclusions:

The defendant was a trusted employee of Jersey Potteries and began committing the offences only a short time after he had moved to the position of manager at one of the town cafes.  He had abused his position and the trust placed in him by stealing £14,000 from his employer. 

The Crown referred to AG-v-Zeilinski [2008] JRC 028 where the Court had stated:-

“The sentencing policy of the courts is plain where the offending involved the violation of trust.  Such offences are punished by custodial sentences in all but the most exceptional cases”.

Total: 18 months’ imprisonment. 

Sentence and Observations of Court:

The actions of the defendant had caused suspicion to fall on other staff members.  The stolen monies had been spent on essentials and luxury items.  The breach of trust was an aggravating feature.  There existed no exceptional circumstances to cause the Court to deviate from its sentencing policy.  The Court referred to paragraph 458 of Whelan on Sentencing (which in itself referred to Mitchell (1987) 11 Cr. App. R. (S) 562) which stated:-

“It must not be thought that people who fail to consider the effect that their actions may have upon 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.”

Conclusions granted.  

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

Advocate J. W. R. Bell for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced on three counts of larceny as a servant.  You took on at least ten occasions if not more over a period of 18 months a total of approximately £14,000 from your employer.  In doing so you allowed suspicion to fall on members of the staff who were employed in that shop and indeed one of them had to leave because she could not cope with that suspicion. 

2.        Breach of trust is always important and an aggravating feature of the offence of larceny and the Court’s established policy is that unless there are exceptional circumstances a custodial sentence is inevitable.  We do not think that there are any exceptional circumstances here.  As indeed was said in the case of AG-v-Pallot [2010] JRC 122, it is unfortunately the case that those who are trusted by employers nearly always do have good records, nearly always do show remorse afterwards and nearly always do leave their families suffering as a result of their offending.  But as is quoted by Whelan at paragraph 458, in the case of Mitchell in the English Court of Appeal, the Court said:-

“It must not be thought that people who fail to consider the effect that their actions may have upon 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.” 

3.        It is always a concern to put a relatively young man with a family in prison but the Court’s policy is absolutely clear and the Court considers that the Crown’s conclusions are right.  The Court has noted particularly that you spent some of the money not just on essentials but also on luxuries and you acknowledged to the Probation Officer that you became greedy. 

4.        You are accordingly sentenced to 18 months’ imprisonment concurrent on each count.  We have taken account of everything that your Counsel has said but it does not affect that sentence. 

Authorities

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

AG v Pallot [2010] JRC 122.

AG-v-Zeilinski [2008] JRC 028.

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

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

Fowler-v-AG [2007] JLR N23.

Fowler-v-AG [2007] JRC 044.