Jersey Unreported Judgments

[2008]JRC028

ROYAL COURT

(Samedi Division)

22^nd February 2008

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Le Cornu and Morgan.

The Attorney General

-v-

Marcin Wlodzimierz Zielinski

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

133 counts of:	Falsification of accounts. (Counts 1 - 133).
133 counts of:	Larceny as a servant (Counts 134 - 266).

Age:  27

Plea: Guilty.

Details of Offence:

The accused was employed as a Checkout Supervisor at Checkers Superstore, St. Brelade.  Over an approximate 5 month period he created 133 fictitious refund transactions involving a total sum of £23,206.79.

The system used was carefully thought out but relatively simple.  The accused would create a fictitious refund sale on an electronic till and manually fill out a refund reason slip.  All but four fictitious refunds were made in cash.  In these cases the accused simply removed money from the tills as he was transferring the till drawers to the safe at the end of the day.  On the first four occasions refunds were made to the accused's NatWest account using his card.  Refunds were expressed in pounds and pence, allocated to different cashiers and performed at different levels to avoid suspicion.  With the exception of card refunds individual amounts stolen were (in all but one case) rounded down.

For the most part the money stolen was applied by the accused towards everyday living expenses and repayment of his significant personal debts in Poland and Jersey (totalling approximately £24,000) although some luxury items (mainly electronic) appear to have been purchased - in part as presents for his family.

When interviewed the accused initially sought to disguise the extent of his admitted wrongdoing.  When later confronted with the evidence he made full admissions. 

He also admitted stealing unspecified sums from unmanned tills, when performing 'cash lifts' from the tills and when obtaining change for the tills from the bullion boxes (not the subject of separate charges). 

As time went by the accused admitted becoming greedy.  He said he had expected to be caught.

Details of Mitigation:

Residual youth.  Guilty pleas (entered at the earliest opportunity).  Repeated expressions of remorse.  Full and frank admissions during interview.  The accused had seen no way out of his debts and had, at one stage, attempted suicide.  He had run up his debts attempting to buy friends. 

Previous Convictions:

Record containing minor motoring offences and two previous convictions for benefit fraud in 2006. 

Conclusions:

Counts 1- 133:	18 months' imprisonment, concurrent on each count.
Count 134-266:	18 months' imprisonment, concurrent on each count.

Total: 18 months' imprisonment.

Recommendation for deportation sought

Sentence and Observations of Court:

The policy of the Courts was plain - in cases involving a breach of trust a custodial sentence was appropriate unless there were exceptional circumstances. 

In gauging the weight of the offence the Court would have regard to Barrick.  The accused had occupied a position which brought with it a high degree of trust and responsibility.  The victim was a company (as opposed to an individual).  The accused had lost his liberty. 

The Crown had chosen to charge incidents of criminality separately but in moving conclusions had grouped the offences of falsification of accounts and larceny as a servant and moved one sentence in relation to each grouping. 

As to deportation the Crown relied on the test in Camacho.  The accused had been in Jersey since 2000 and had been employed in a variety of positions.  This was his second offence of dishonesty.  He was classified at a medium risk of re-offending but that risk was further increased by other factors present in his case.  Ha had a brother living locally but both parents lived in Poland.  He was single with no dependants. 

Advocate Cadin had been realistic in stating there were no exceptional circumstances present and that custody could not be avoided.  He had invited the Court to reduce the conclusions to a sentence of 15 months' imprisonment to allow the accused to continue the courses he had been undertaking at the prison (for which he should be commended).  He had asked that no deportation order be made to allow the accused to pay back the money stolen. 

In the Court's view the Crown's conclusions were correct. 

As to deportation the Court agreed that the continued presence of the accused in Jersey was detrimental.  Deportation would have no effect on innocent persons not before the Court and would not breach the accused's human rights. 

Conclusions granted.

A. J. Belhomme Esq., Crown Advocate.

Advocate D. M. Cadin for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant has pleaded guilty to 133 counts of falsifying accounts and 133 counts of larceny as a servant.  The indictment relates to a total of 133 unauthorised, fictitious transactions undertaken by the defendant during the course of his employment as a checkout supervisor at Checkers Superstore.  The method by which funds were stolen was carefully thought out and relatively simple.  The accused disguised his criminality by the creation of fictitious electronic refund transactions coupled with completion of fictitious refund reason slips.

2.        The defendant has a record of previous convictions including a conviction on 25^th August, 2006 for 2 offences of benefit fraud involving a total slightly in excess of £2000.  It is of note that a community service order imposed following his conviction was breached in February 2007.  When questioned by the police the defendant initially sought to limit the extent of his wrong-doing.

3.        The sentencing policy of the Courts has been consistently plain where the offending involves the violation of trust.  Such offences are punished by custodial sentences in all but the most exceptional circumstances.  With regard to exceptional circumstances, Advocate Cadin, for the defendant, accepts that there are no such circumstances here.

4.        The Crown has referred us to, and we have account of, the matters outlined in the case of Barrick [1985] 7 Cr. App. R. (S) 142, to gauge the weight of the case to obtain a feel for its degree of seriousness.  The defendant was employed in a position which carried with it a high degree of trust and responsibility and the offences took place over 5 months.  The total sum of money stolen, £23,000, was for the most part applied by the defendant towards every day living expenses and repayment of his significant personal debts, although some luxury electronic items do appear to have been purchased.

5.        The victim in this case is a large commercial company as opposed to an individual.  There has been no effect on the public or public confidence, but it is clear that the defendant's actions have caused distress and unrest for the employees at Checkers.  The effect on the defendant, of course, has undoubtedly been significant as he has lost his job and liberty and the most significant mitigation available to him comes from his early guilty pleas, the admissions during interview and his repeated expressions of remorse.

6.        The Crown have chosen to charge each instance of criminality separately, and for the purposes of sentencing, group the offences of falsification of accounts and of larceny as a servant and move for one sentence in relation to each set of offences.

7.        Taking first the counts involving larceny as a servant, the Crown referred us to the cases of AG v Cooper 1998/24, AG v Buckley 2001/175 and AG v Ryall 1994/212, which demonstrated a range of between 18 months and 2 years for broadly similar offences.  Taking into account the mitigation available to the defendant but bearing in mind his record, the Crown moves for a sentence of 18 months' imprisonment concurrent on each count giving a total of 18 months' imprisonment

8.        Turning to the counts which involve falsification of accounts, the Crown referred us to AG v Kinnard [2005] JRC 038 and AG v Kirkum [2005] JRC 131, which demonstrate a range of between 15 months' to 18 months' imprisonment again for broadly similar offences.  The Crown moved for a sentence of 18 months' imprisonment on each count concurrent with each other and concurrent with the total term of 18 months imposed on the counts involving larceny as a servant, giving an overall sentence of 18 months' imprisonment. 

9.        The Crown also invited the Court to recommend the defendants deportation.  We were referred to the test applied by the Court in such matters as reviewed by the Court of Appeal in Camacho v AG [2007] JRC 145.  Applying R v Nazari [1980] 2 Cr. App. R. (S) 84 and in the light of Human Rights considerations following the enactment of Human Rights (Jersey) Law 2000.we have to consider:-

(i)        whether the defendant's continued presence in Jersey is to the Island's detriment; and

(ii)       the effect a deportation order would have upon innocent persons not before the Court, and the defendant, a particular consideration being the rights established under Article 8 of the European Convention in respect of private and family life.

The defendant came to Jersey in 2000 and has had a variety of employments.  This is his second offence for dishonesty and this case involves a serious breach of trust with significant sums of money.  He has been assessed to be at medium risk of re-offending but that a combination of other factors in his life combined further to increase his re-offending risk. The Crown say that we should have no difficulty in concluding that his continued presence in Jersey would be to the Islands detriment.  He has a brother living locally but both his parents live in Poland.  He is a single man not currently in a relationship and has no dependants.

10.      Advocate Cadin addressed us very realistically in relation to the Crown's conclusions.  He does not, we think very properly, contend that there are exceptional circumstances or that custody can be avoided.  He did submit that we should consider reducing the length of the sentence but not below 15 months, to enable the defendant to complete the courses that he has, commendably, undertaken and we encourage him to continue with those courses.  He also submitted on behalf of the defendant that we should not recommend his deportation as he wishes to take up employment on his release in order to pay back his various debts. We have considered all of these submissions, the letter the defendant has written to us, and the very helpful reports but we have no doubt that the conclusions of the Crown are correct.

11.      In relation to deportation we agree with the Crown, for the reasons that I have just recited, that the defendant's continued presence in the Island is detrimental.  Furthermore, we have concluded that deportation would not have any effect on innocent persons or indeed constitute a breach of his own rights.

12.      Mr Zielinski, you are sentenced as follows: on counts 134 to 266 to 18 months' imprisonment concurrent on each count.  On counts of 1 to 133, 18 months' imprisonment concurrent on each, and concurrent to the total sentence imposed on counts 134 to 266, making a total of 18 months' imprisonment.  

13.      We recommend your deportation.

Authorities

Barrick [1985] 7 Cr. App. R. (S) 142.

AG v Cooper 1998/24.

AG v Buckley 2001/175.

AG v Ryall 1994/212.

AG v Kinnard [2005] JRC 038.

AG v Kirkum [2005] JRC 131.

Camacho v AG [2007] JCA 145.

R v Nazari [1980] 2 Cr. App. R. (S) 84.

Human Rights (Jersey) Law 2000.

European Convention.