Jersey Unreported Judgments

[2008]JRC064

ROYAL COURT

(Samedi Division)

18^th April 2008

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Clapham and Liddiard.

The Attorney General

-v-

Francis William Loyer

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

1 count of:

Fraudulent conversion.  (Count 1).

Age:  56.

Plea: Guilty.

Details of Offence:

Over a period of approximately 2 years the defendant stole £17,300 belonging to an elderly relative who, unable to read and write, was incapable of managing his own financial affairs.  The defendant was the husband of the victim's niece.  The defendant and his wife had looked after the victim for 20 years previously, and were the only people to visit him in the nursing home where he now lives.  The majority of the stolen money was used to fund loan repayments for the defendant's new motor car. 

Because the defendant had stolen the money, the Parish ended up having to contribute funds to meet the victim's daily needs.

Details of Mitigation:

Guilty plea, restitution of the money in full, remorse, previous good character, ill-health, exceptional circumstances; the defendant had cared for the victim and the victim's brother for 20 years without offending, the defendant's health was likely to deteriorate if imprisoned.

Previous Convictions:

No previous convictions.

Conclusions:

Count 1:

18 months' imprisonment.

Cases which involve a violation of trust should be punished by custodial sentences in all but the most exceptional circumstances.

Sentence and Observations of Court:

Count 1:

15 months' imprisonment, suspended for 2 years.

The Court was persuaded that there were exceptional circumstances in this case.  The defendant had looked after the victim and the victim's brother for no reward for over 20 years without offending.  Further, the victim had forgiven the defendant, and the defendant continued to visit him at the victim's request.  As the defendant and his wife where the only people to visit the victim, to imprison the defendant would only inflict further hardships on the victim.

C. M. M. Yates, Esq., Crown Advocate.

Advocate R. S. Boddie for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        For some 20 years or so you have looked after the affairs of the victim and, for much of that time, those of his brother, he being unable to manage his own affairs properly.  He trusted you completely.  You repaid that trust by beginning to steal from him in April 2004, and between then and March 2007, you stole a total of £17,300 using his cash card.  The money seems to have been applied largely to fund the purchase of your Volvo motor car, but some was used for other purposes.

2.        It was by any stretch of the imagination a gross breach of trust.  Advocate Boddie has spoken strongly on your behalf.  She points out, and we accept, that the dishonesty started because you felt the need to help out your daughter financially when she needed it in difficult circumstances.  But of course it continued after that. 

3.        She has also referred to the fact that you immediately pleaded guilty.  You are hitherto of excellent character and we have read all the references pointing out how completely out of character this is.  We have, of course, taken into account the fact that you did look after the victim and his brother for so long.  We accept that you are remorseful.  We agree that you are at low risk of re-offending and we note your poor state of current health.  We also note that you have repaid the victim out of your pension so that your pension position is going to be adversely affected in future.

4.        Sadly, these factors are so often present in cases like this.  As was said in the leading case of R v Barrick [1985] 81 Cr. App. R. 78, the person concerned is so often of hitherto impeccable character.  It is practically certain he will never offend again and the effect on his family, on his reputation and on his employment prospects are likely to be devastating.  The Court has repeatedly said that for offences of this nature an immediate prison sentence is required unless there are exceptional circumstances.

5.        Advocate Boddie has urged that there are exceptional circumstances in this case and as you will have seen from time we have retired we have considered this very carefully.  In our judgment the factors which could be said to amount to exceptional circumstances are the fact that you looked after the victim and his brother devotedly for some 20 years for no reward of any nature before beginning your dishonesty.

6.        This care involved cooking for them every Sunday, taking them for drives, making sure their fire was lit and that their house was warm in winter and generally making sure they were all right because, as the report shows, they were not well placed to look after themselves.  This has continued since the brother died and most significantly the victim has forgiven you knowing exactly what you have done.  You continue to visit him at his request.  Indeed we understand from the papers that you and your wife are in fact his only visitors.  If we were to send you to prison we are satisfied that this would in fact inflict further hardship on your victim.

7.        So it is these latter factors which have just persuaded us that this is truly an exceptional case.  A prison sentence is required because of what you have done.  We think taking into account all the mitigation it can be reduced slightly, but nevertheless it must be a prison sentence.

8.        The sentence of the Court is one of 15 months' imprisonment, but we think that in the exceptional circumstances we can suspend it for a period of 2 years.  That means if you do not re-offend during two years you will hear no more of this, but if you do re-offend then not only will you be punished for the offence you then commit but you will serve the sentence of 15 months on top of that.

Authorities

R v Barrick [1985] Cr. App. R. 78.