Jersey Unreported Judgments

Inferior Number Sentencing - obtaining money by false pretences - attempting to obtain money by false pretences.

[2013]JRC054

Royal Court

(Samedi)

14 March 2013

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Nicolle and Olsen.

The Attorney General

-v-

Sarah Louise Kitchin

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

3 counts of:	Obtaining money by false pretences (Counts 1, 3 and 4).
5 counts of:	Attempting to obtain money by false pretences (Counts 2, 5, 6, 7 and 8).

Age:  45.

Plea: Guilty.

Details of Offence:

Counts 1 and 2

On 5^th December, 2011, the defendant completed a Lloyds TBS inter-account transfer form requesting the transfer of £1,750 from an account belonging to the JEP to her own account.  The first transaction was carried out but the second was stopped by the bank.  Of the £1,750 she immediately withdrew £1,740 in cash, depositing £865 into her current account before transferring £840 to pay her rent.  She kept the balance of £875.  The JEP disputed the transaction and the bank reimbursed them.  On 13^th December, 2011, she attempted to make a second transfer by the same method but the bank stopped the transaction. 

Count 3

On 10^th January, 2012, the defendant requested a transfer of £2,310 to her account from the account of Four Seasons Health Care.  She did so using a doctored standing order mandate.  The following day she withdrew £2,300 in cash and paid £1,550 into her savings account.  This was used to repay Lloyds TSB in relation to Count 1.  She paid £865 into her current account and used the majority of this to pay her rent.  The standing order mandate was obtained through her work assisting in the administration of a curatorship. 

Count 4

On 13^th February, 2012, the defendant requested, by letter, the transfer of £1,847 from the account of Professional Property Management Services to her own account.  She withdrew the cash the following day and used it to pay rent. 

Count 5

On the same day the defendant requested, by letter, the transfer of £1,830 from the account of Honours Student Loans ("HSL") to her own account.  The bank refused the request.  The defendant owes HSL approximately £1,000.

Count 6

On 24^th February, 2012, the defendant requested, by letter, the transfer of £2,300 from the account of Jersey Telecom to her own account.  The bank refused the request as she is not an authorised signatory. 

Count 7

On 2^nd March, 2012, the defendant requested, by letter, the transfer of £2,700 from the account of Choice Properties to her own account.  The bank refused the request. 

Count 8

On 6^th March, 2012, the defendant requested, by letter, the transfer of £2,570 from the account of Bel Royal Motors to her own account.  The bank refused the request. 

The defendant was arrested on 20^th March, 2012.  In interview she admitted having made the transfers, but maintained that it was all a mistake.  She claimed that she had merely filled the details in the wrong way around, intending to transfer the monies to the victims. 

Details of Mitigation:

The Crown

Guilty plea; entered after trial dates had been fixed, but as soon as possible after the receipt of a psychiatric report, therefore full credit was given.  Suffering from anxiety and depression.  Unsophisticated offences, in which the ultimate victims were financial institutions which failed to make the correct checks.  Low risk of reoffending.  Previous positive good character.

The Defence

Committed to repaying monies.   Wholly out of character.

Previous Convictions:

None.

Conclusions:

Count 1:	210 hours' Community Service Order, equivalent to 15 months' imprisonment.
Count 2:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, concurrent.
Count 3:	210 hours' Community Service Order, equivalent to 15 months' imprisonment, concurrent.
Count 4:	210 hours' Community Service Order, equivalent to 15 months' imprisonment, concurrent.
Count 5:	210 hours' Community Service Order, equivalent to 15 months' imprisonment, concurrent.
Count 6:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, concurrent.
Count 7:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, concurrent.
Count 8:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, concurrent.

Total: 210 hours' Community Service Order., equivalent to 15 months' imprisonment. 

Compensation Order sought in the total sum of £4,357:-

£200 in favour of Lloyds Bank;

£2,310 in favour of Barclays Bank; and

£1,847 in favour of Royal Bank of Scotland.

Sentence and Observations of Court:

Conclusions granted.

No Compensation Order made.

Ms S. J. O'Donnell, Crown Advocate.

Advocate S. M. J. Chiddicks for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are charged with eight counts of obtaining money by false pretences or attempting to obtain money by false pretences.  The Crown has asked us to take into account the case of R-v-Mills [2002] EWCA Crim 26, a decision of the English Court of Appeal.  It is said that that case establishes some general principles for this kind of offending.  For our part we are not inclined to accept that submission.  First of all the facts of that case are similar to but not on all fours with the present one.  The present case involves the issue of false documents which either did or were intended to result in crediting sums to the defendant's bank account.  Mills concerned the telling of lies to obtain credit facilities.  Secondly it is clear that the Court of Appeal in Mills were very much influenced by two factors.  The first was that the defendant was a woman with the care of young children; that is not the case here.  The second was the growing female prison population in England; that is also, fortunately, not the case here and we do not have the same problem. 

2.        On the first of those two points the policy of the Royal Court has for many years been to take into account the fact that a defendant has the care of young children.  That does not mean that a custodial sentence is always avoided but it is sometimes a significant factor that is taken into account in arriving at the appropriate sentence.  The issue does not arise in the present case.  It is also the policy of the Royal Court not to discriminate between male and female defendants on sentencing.  The gender of the offender is not a relevant factor for the purposes of sentence.  If all other factors were to be the same the sentence would be the same, whether the defendant be a man or woman. 

3.        In this case the Court is faced with a series of cheque or bank transfer offences by way of fraud or attempted fraud.  The policy of the Court is that by and large these offences attract a custodial sentence.  That is not invariably the case but it is usually the case.  Where the offences involve a criminal breach of trust, there is a custodial sentence unless there are exceptional circumstances, and for that one looks to the case of AG-v-Picot (1990/74), a decision of the Superior Number of this Court on 29^th May, 1990, which has been regularly applied.  The only qualification to that, and it is rarely a qualification in this Court because such cases would normally be dealt with in the Magistrate's Court, is that there may be cases where, for different reasons, the seriousness of the offending, coupled with the available mitigation, does not require a custodial sentence.  The authority for that is the case of AG-v-Kirkland (2001/200) in the Superior Number unreported judgment, but it is clear that that applies only with cases at the lower end of the scale.  The present case, involving as it does a total obtained, or attempted to be obtained, at some £16,000, would not fall at the lower end of the scale if a breach of trust were involved in all the offences.  Although the first two counts for example, and some others indeed, do not involve a breach of trust, others do and in some cases in addition the defendant used information obtained from her employer or whilst assisting at a charity. 

4.        It follows from the remarks that we have made that unless the case is at the lower end of the scale, or there are exceptional circumstances, the Court would impose a custodial sentence.  If the offence is at the lower end of the scale the Court will either reflect that by imposing a commensurately short custodial sentence, or in an appropriate case, find some other penalty but the policy message remains the same that offences of this kind, to the extent they involve a breach of trust, are for the most part, so serious that a custodial sentence will be imposed, unless as I say, the case falls at the lower end of the scale or there are exceptional circumstances. 

5.        It is clearly established that a guilty plea, previous good character and other personal circumstances which go to show the offending was out of character, are not exceptional circumstances.  It seems to us that the only mitigation which might amount to exceptional circumstances in this case is the medical and psychiatric evidence.  And indeed this does satisfy us that were it not for the psychiatric challenges arising from her depression, which was clinically established, this defendant would not have committed these offences.  For that reason we consider there is scope for us to avoid imposing a custodial sentence if it otherwise seems right for us to do so. 

6.        We are satisfied that it is right to avoid a custodial sentence in this case.  The offences were unsophisticated and committed out of need rather than greed.  There has been a frank acknowledgement of guilt and we are satisfied there is genuine remorse.  We have noted that not all the offences involve a breach of trust, although as I have said some of them involved using private information to commit the frauds or attempted frauds.  It is not the case however that with every count the offence charged involved obtaining or attempting to obtain cash from a person to whom the defendant owed a duty of trust. 

7.        We come to consider the Crown's conclusions against that background and we think that they are right.  The conclusions omit any recommendation in relation to Count 6 but we think that the appropriate conclusion would be 180 hours' community service on that particular count.

8.        You have heard the remarks which I have just made.  These are serious offences; we have looked at the psychiatric evidence and we are satisfied that these are offences which you would not have committed but for the psychiatric and depression challenges which are mentioned in the report, and for that reason we are not going to send you to prison.  But you are sentenced on Count; 210 hours' community service, on Count 2; 180 hours' community service, concurrent, on Count 3; 210 hours' community service, concurrent, on Count 4; 210 hours' community service, concurrent, on Count 5; 210 hours' community service, concurrent, on Count 6; 180 hours' community service, concurrent, on Count 7; 180 hours' community service, concurrent, and on Count 8; 180 hours' community service, concurrent, and that means that you must serve a total of 210 hours' community service.  If you do not act in accordance with the directions of the community service manager, you are at risk of being brought back to Court and you can be sentenced again and the custodial sentences that we would have been considering, which we think would be right, would be 15 months' imprisonment, where the count involved 210 hours' community service, and 12 months' imprisonment where the count involved 180 hours' community service.  So I give you that warning, you must perform that community service or else you are liable to be brought back to Court. 

9.        The Crown has invited us to consider making a Compensation Order in this case; having regard to your financial circumstances we are not going to make a Compensation Order.  We have noted your intentions to repay the amounts in question, which are commendable, and we think that you should make the payments if it is realistic to do so and we think that you will make them if it realistic to do so.  But we are not going to make any order. 

Authorities

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

R-v-Mills [2002] EWCA Crim 26.

AG-v-Picot 1990/74.

AG-v-Kirkland 2001/200.

AG-v-Byrne [2011] JRC 060.