Jersey Unreported Judgments

2000/33A

4 pages

ROYAL COURT

(Samedi Division)

 

23^rd February, 2000

 

Before:  Sir Philip Bailhache, Bailiff and

Jurats Rumfitt and Georgelin

 

The Attorney General

-v-

Anne Elizabeth Troalic (née Robinson)

 

3 counts of:      contravening Article 14(1)(a) of the Housing (Jersey) Law, 1949, as amended by failing to comply with condition attaching to a Housing Committee consent that property should not be let unfurnished to or be occupied by any persons other than those approved by the Committee as falling into categories (a)-(h) of Regulation (1)(1) of the Housing (General Provisions) (Jersey) Regulations 1970 (counts 1-3);

 

2 counts of:      contravening Article 7(1) of the Housing (Jersey) Law, 1949, as amended, by leasing property without previous Housing Committee consent (counts 4, 5).

 

Age:    48.

 

Plea:   Facts admitted.

 

Details of Offence:

 

Defendant took on the lease of dwelling accommodation above a shop in a property known as 'Isabella House': she already held the lease for the shop below, 'The Gooseberry Bush'.  When ownership of 'Isabella House' had been transferred in 1988 to her landlord, a condition of the consent was that the dwelling accommodation above the shop must be occupied by persons qualifying under Regulations 1(1)(a) to (h).  It also stated that persons who occupied the accommodation should do so as their sole or principal place of residence.  The initial rental was £5,460 per annum.  In fact the defendant never moved into the flat.  At time of sentencing the rental had been increased to £6,636.67 per annum.  A number of changes of occupancy over material period, but at time of visit by Housing, four persons were in occupation, three of whom were unqualified, paying a total of £250 per week rent, or £13,000 per annum.  The qualified occupiers had failed to file exemption forms.  Over the material period of 16 months the defendant had received illicit profit of £8,484.44.  The unqualified persons were as much lodgers as the qualified persons, and there was no contractual relationship between them.  It was alleged by the defendant that her husband (who had been an employee of the Housing Department for 8 years) had telephoned the Department and been given misleading information.  On this basis, not guilty pleas were entered on 22^nd October, 1999 and date for trial was set for 23^rd February, 2000.  Defendant and her husband out of Island for three weeks prior to trial date.  On first morning of trial, defendant changed plea on legal advice, but wished to put in mitigation the fact of the alleged telephone call.  The alleged fact was disputed by the prosecution and seven witnesses from Housing Department were present, to give evidence in a Newton hearing.  However, Court declined to hear evidence regarding the alleged telephone call.

 

Details of Mitigation:

 

Claimed not deliberate breach.  Defendant was tenant but never occupied.  However, always someone qualified in occupation, albeit without filing appropriate exemption form.  Alleged telephone call to Housing Department when unidentified female gave defendant's husband misleading information.  Perhaps mutual mistake: perhaps female thought it was the Troalics themselves who were living at the flat at 'Isabella House' and wished to take in lodgers.  Defendant did not follow up in writing or seek legal advice.  Conceded that defendant failed in her duty to ascertain conditions attached to the flat and was grossly negligent.  Co-operative with Housing investigation.  Did not realise that prosecution did not have to prove mens rea and hence very late change of plea.  Ignorant of the Housing and Lodging laws.

 

Previous Convictions:   None.

 

Conclusions:

 

Count 1:   £2,500 fine or 6 months' imprisonment in default of payment.

Count 2:   £2,500 fine or 6 months' imprisonment in default of payment.

Count 3:   £2,500 fine or 6 months' imprisonment in default of payment.

Count 4:   £500 fine or 2 months' imprisonment in default of payment.

Count 5:   £500 fine or 2 months' imprisonment in default of payment.

                £2,000 costs.

 

TOTAL:  £8,500 fine; £2,000 costs.

 

Sentence and Observations of the Court:

 

Count 1:   £2,700 fine or 2 months' imprisonment in default of payment.

Count 2:   £2,700 fine or 2 months' imprisonment in default of payment, consecutive.

Count 3:   £2,700 fine or 2 months' imprisonment in default of payment, consecutive.

Count 4:   £200 fine or 1 week's imprisonment in default of payment, consecutive.

Count 5:   £200 fine or 1 week's imprisonment in default of payment, consecutive.

 

TOTAL:  £8,500 or 6 months and 2 weeks' imprisonment in default of payment; £1,500 costs; 2 months to pay.

 

Mrs. S. Sharpe, Crown Advocate.

Advocate F.J. Benest for the accused.

 

 

JUDGMENT

 

THE BAILIFF:  The defendant has admitted a number of infractions of the Housing Law arising out of the letting of rooms at 'Isabella House' in Farley's Lane, which the defendant has on lease from Farley Properties Limited.  There is a condition attached to the occupation of the private dwelling accommodation which is in standard form and which prohibits occupation by persons not qualified under Regulation 1(1)(a) to (h) of the Housing (General Provisions) (Jersey) Regulations 1970 without the consent of the Committee.  Notwithstanding that condition the defendant permitted its occupation by unqualified persons over a period of some 16 months.  She also failed to notify the Department of two transactions with qualified tenants.  As a result the defendant has made an illicit profit - that is to say the difference between the rent paid to the company by her and the rent which she received from the lodgers and tenants.

 

Mr. Benest for the defendant submitted in mitigation that his client's husband had telephoned an official in the Housing Department in March, 1995, and had been advised that it was in order to accommodate unqualified persons as lodgers provided that there was one qualified person present at the same time.  The Crown states that this advice was not and indeed would not have been given.  After hearing submissions the Court decided that it would not order a 'Newton' hearing.  It is right therefore to state that we have proceeded upon the basis that that telephone call was made and that the defendant's husband understood that advice to have been given.

 

In the circumstances of this case, we do not, however, find this submission to be compelling mitigation.  At one time the defendant's husband was employed in the Housing Department and in our judgment it is surprising that he relied upon a telephone conversation with an unidentified official without ever committing his understanding of the position to writing in a letter to the Department or, indeed, seeking legal advice.  However, in any event, it was the duty of the defendant, Mrs. Troalic, to satisfy herself as to what her obligations were and not to rely upon the telephone conversation which has been described.  That, it seems, she completely failed to do.  We accept that the failure was not wilful but it was nonetheless grossly negligent.  As a result of that grossly negligent omission the defendant has made an illicit profit which ought to be removed irrespective of any penalty for a breach of the law.  We wish to reiterate what has been said in this Court on numerous previous occasions and that is that it is the duty of those who buy or take on lease property in this Island to ascertain what their obligations are under the Housing Law and Regulations.

 

We think that the conclusions as to totality are correct and we propose to grant the conclusions subject only to modification of the amount in relation to each charge.

 

Mrs. Troalic, will you stand up, please.  On count 1, you are fined the sum of £2,700 or 2 months' imprisonment in default of payment; on count 2, you are fined the sum of £2,700 or 2 months' imprisonment in default of payment, consecutive; on count 3, you are fined the sum of £2,700 or 2 months' imprisonment, consecutive; on count 4, you are fined £200 or 1 week's imprisonment, consecutive; on count 5, you are fined the sum of £200 or 1 week's imprisonment, consecutive, making a total fine of £8,500, or 6 months and 2 weeks' imprisonment in default of payment.  Having regard to the submissions made by your counsel I propose to modify the conclusions in relation to costs and you will pay the costs of the prosecution not exceeding £1,500.  You are granted two months in which to pay.

Authorities

 

 

AG -v- Perkins (3^rd October, 1997) Jersey Unreported.

 

AG -v- Prizada (9^th October, 1998) Jersey Unreported.

 

AG -v- Boustouler (5^th March, 1993) Jersey Unreported.

 

AG -v- Phillips (4^th May, 1990) Jersey Unreported.

 

AG -v- Amy (14^th June, 1988) Jersey Unreported.

 

AG -v- de Carteret (27^th March, 1984) Jersey Unreported.

 

AG -v- FR Roberts & Son (Holdings) Ltd (3^rd March, 1988) Jersey Unreported.