Jersey Unreported Judgments

Superior Number Sentencing - larceny.

[2014]JRC142B

Royal Court

(Samedi)

14 July 2014

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Clapham, Le Cornu, Milner and Liston.

The Attorney General

-v-

Patricia Ann Lomas

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 23^rd May, 2014, following a guilty plea to the following charge:

1 count of:

Larceny (Count 1).

Age:  55

Plea: Guilty.

Details of Offence:

Lomas was the back-office systems manager at a firm of investment advisors.  Over a four-year period she stole £542,610.53 from the accounts of four clients of the firm, moving cash between the accounts and on one occasion selling their investments.  She did so by asking her assistants to countersign her instructions or forging their signatures and abusing her department's practice of sharing usernames and passwords.  She concealed the thefts by manipulating the management reports that she was responsible for preparing.  Almost all of the funds were lost playing internet Bingo, but a significant proportion was spent on other luxuries and other forms of gambling.  She made full admissions in interview but insisted that she had been acting under duress of others who were the real gambling addicts.  Her brother unwittingly allowed her to use his bank account. 

Details of Mitigation:

Cooperation (abandoned tale of duress at indictment), good character, some unaddressed psychological difficulties. 

Previous Convictions:

None.

Conclusions:

Count 1:

4 years' imprisonment.

Sentence and Observations of Court:

Conclusions granted.

D. J. Hopwood, Esq., Crown Advocate.

Advocate A. T. H. English for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced on an Indictment containing just one count of larceny that over a period of nearly 5 years you stole £542,610.53 from clients of your employer, Ashburton (Jersey) Limited.  In fact because Ashburton are reimbursing the clients it amounts to a theft from Ashburton.  You were a supervisor employed by that company, a financial services firm, and you had worked for them for about 6 years.  This was done deliberately and fraudulently.  At one point you assumed your supervisor's user name and password to give instructions to the Royal Bank of Scotland but this, according to your counsel, was apparently done routinely by others and of itself does not indicate dishonesty although it might emphasise an additional breach of trust that you owed to your supervisor personally as opposed to the bank.  But mostly you exploited what it seems clear were deficiencies or inadequacies in your employer's internal controls and, as I have indicated, the Court recognises this was a gross breach of trust.  You know that, that does not need us to tell you.  The sentencing policy of the Court in respect of such offences is well established and as you have been in the Island for a long time, almost constantly since 1983, you must know that.  And it follows that unless there are exceptional circumstances you should receive a custodial sentence. 

2.        Your counsel suggests that there are exceptional circumstances, that you were mentally not very well at the time over this quite extended period and that you were placed under stress at work.  The Court has looked at the psychological report and does not see any indication in there that directly links any lack of mental health to the commission of these offences, and the suggestion that stress at work was sufficient to act as an exceptional circumstance is not one that we accept.  We therefore think there is no doubt that on the principles that have been set out in all the cases before, we must impose a custodial sentence. 

3.        We recognise immediately that you have, as is so often the case in cases like this, a lot of mitigation.  You have pleaded guilty, cooperated entirely at an early stage, you have some genuine remorse which we accept, you have a good record and the whole set of transactions and the offending is a personal tragedy for you.  Unfortunately that mitigation is often to be found in cases of this kind and of course we take it into account but it means that when we look at other sentences which have been imposed, all the guideline cases all suggest that the right sentence is in the ballpark of the Crown's conclusions.  We have considered the reference that you put forward and we have considered everything that your counsel has said against that test and is there anything in it that would make us think that the Crown's conclusions are too high.  To the extent that your counsel blamed your employers we think that was wrong.  It does not make your conduct any more forgivable that their internal practises might have been deficient or fell short of what was ideal.  We think that the involvement of your brother, putting him under suspicion, was a seriously aggravating factor. 

4.        It is clear that gambling is not mitigation.  In the case of Lloyd-v-AG 1986/141, the Court of Appeal said this:-

"We have listened with great care to what was said on the applicant's behalf but we think there were no mitigating features.  We do not believe that an obsession for gambling is a mitigating feature at all.  If there had been proper medical evidence, the Court might have been able to look at the matter in a different way, but we see no reason to distinguish between a man who is compulsive gambler and someone who, for example, buys a substantial yacht or spends a fortune on ladyfriends.  We repeat we do not believe there was any mitigation here."

5.        And in the case of Congdon-v-AG 2002/38 the Superior Number of this Court said this:-

"...the Court of Appeal in Lloyd was not saying that a gambling addiction was a mitigating factor if supported by medical evidence.  The Court was merely contemplating that there might be circumstances where the gambling addiction arose as a result of a medical condition, or where it should otherwise be taken into account.  In our judgement, the principle is that, in normal circumstances, a gambling addiction is not a mitigating factor.  This has been established by the cases to which we have referred, and we think that it is correct."

6.        When we put all those things together we consider that the Crown have their conclusions right.  We note that in some cases where counsel have referred to them, AG-v-Morgan [2006] JRC 176, AG-v-Howard [2006] JRC 008 and AG-v-Smith [2004] JRC 074, a lower sentence was imposed but the sums involved in those cases were much less than what is involved in your case, and you did have six members of staff working for you so although not a director level, and although not necessarily at the same senior level of Morgan, Howard and Smith, you nonetheless had a position of responsibility inside the company.

7.        The Court sentences you on the Indictment to 4 years' imprisonment and does so with regret because we understand that you are remorseful and you realise that you have done wrong but that is the policy that we are applying today. 

Authorities

Lloyd-v-AG 1986/141.

Congdon-v-AG 2002/38.

AG-v-Morgan [2006] JRC 176.

AG-v-Howard [2006] JRC 008.

AG-v-Smith [2004] JRC 074.

AG v Sproule [1992] JLR Note 11a.

AG v Hanley 1993/134.

AG v Donnelly 2000/199.

AG v Speck [2004] JRC100.

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