Guernsey Legal Resources

2 At the time when these offences were committed, the appellant was employed by the Guernsey branch of the Royal Bank of Scotland International Ltd., trading as NatWest. Between November 1st, 2004 and October 31st, 2006, she stole money totalling £8,475.85 from her employers, contrary to s.1 of the Theft (Bailiwick of Guernsey) Law 1983, as amended. Money was taken on four occasions: £1,540.35 on November 1st, 2004, £2,343.60 on September 8th, 2005, £943.50 on October 28th, 2005, and £3,657.40 on September 11th, 2006 (Count 1). On October 27th, 2006, she obtained £1,500 in cash from the bank by deception, in contravention of s.15(1) of the 1983 Law (Count 2). Between September 8th, 2005 and October 31st, 2006, she concealed £6,001 of the stolen money (being the total of the second and the last of the sums referred to in Count 1), by a process known as “layering.” That was contrary to s.38(1)(a) of the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law 1999, as amended (Count 3).

3 The last of the thefts caused questions to be asked, and the appellant was invited to attend a meeting with her managers on November 1st, 2006. At that meeting, she denied any wrongdoing, as she did during a further meeting the following day. After the second meeting, however, she sent a text message to her managers, admitting that money belonging to the bank had been paid to one of her creditors and that she “broke all the rules.” The appellant was formally interviewed by the bank on Friday, November 3rd, in accordance with its disciplinary procedures. During that interview, she admitted that she had paid £3,657.40 of bank funds into an account held by Stan Brouard Ltd., to whom she owed money. She resigned on November 6th, the matter was reported to the police, and she was arrested on November 17th, 2006.

4 The appellant was interviewed by the police on three occasions between November 17th, 2006 and August 10th, 2007. By the time of the first interview, the police had discovered all four of the transactions specified in the first count on the indictment. During the interview, the appellant volunteered that she had dishonestly obtained £1,500 in cash from the bank.

5 All the money involved in this case was used by the appellant to pay debts. At the time of her first interview, it was estimated that she had

6 The appellant was 34 years old at the time of the first offence. She had a clean record. She had been employed by the bank for 11 years and held a senior position. By the time of the sentencing hearing, she had repaid the money involved in full.

7 In granting leave to appeal in this case, the single judge, Sir de Vic Carey, explained that he did so on two grounds. The first is that there has been no recent consideration given by the Court of Appeal to offences of dishonesty of this kind. The second is that, as he put it, he was “mildly troubled by the disparity” between the treatment of this appellant and that of the defendant in the case of Law Officers v. Le Sauvage (2), about which we say more later in this judgment.

8 In its sentencing remarks, the Royal Court noted that, in the past, it had derived some guidance from the judgments of the Court of Appeal of England and Wales in the cases of R. v. Barrick (5) and R. v. Clark (6). In the former, the Court of Appeal gave consideration (81 Cr. App. R. at 81) to the proper sentence to be passed in cases of the following type:

“The type of case with which we are concerned is where a person in a position of trust, for example, an accountant, solicitor, bank employee or postman, has used that privileged and trusted position to defraud his partners or clients or employers or the general public of sizeable sums of money. He will usually, as in this case, be a person of hitherto impeccable character. It is practically certain, again as in this case, that he will never offend again and, in the nature of things, he will never again in his life be able to secure similar employment with all that that means in the shape of disgrace for himself and hardship for himself and also his family.”

9 The judgment of the court was delivered by Lord Lane, C.J., who acknowledged the danger of generalizing when the circumstances of the offender and the offence may vary so widely from case to case. In the hope that they might be helpful to sentencers generally, and might lead to a little more uniformity, however, the court made the following suggestions (ibid., at 81–82):

“In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small. Despite the great punishment that offenders of this

10 The court went on to say (ibid., at 81) that it considered that the suggested terms were appropriate where the case is contested and that, in any case where a plea of guilty is entered, the court should give the appropriate discount. The view was expressed that it will not usually be appropriate in cases of serious breach of trust to suspend any part of the sentence.

11 The Court of Appeal gave guidance, also, on some of the matters that the sentencing court would wish to take into account when determining what the appropriate sentence is in any particular case, in the following passage (ibid., at 82):

“. . . (i) the quality and degree of trust reposed in the offender including his rank; (ii) the period over which the fraud or the thefts have been perpetrated; (iii) the use to which the money or property dishonestly taken was put; (iv) the effect upon the victim; (v) the impact of the offences on the public and public confidence; (vi) the effect on fellow-employees or partners; (vii) the effect on the offender himself; (viii) his own history; (ix) those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.”

12 In Clark (6), leave was given by the single judge for an appeal against sentence in a breach of trust theft case in order to allow the Court of Appeal an opportunity to consider the possibility of updating the guidelines in Barrick “in the light of factors occurring since that decision.” Among those factors were the effect of inflation on the boundary figures referred to by the court in Barrick, the reduction in the maximum penalty for simple theft in England and Wales from 10 to 7 years and changes in sentencing practice introduced by the Practice Statement (Criminal Justice Act 1991: Sentence—New Sentencing) (4), consequent upon the

“In the light of all these considerations, we make the following suggestions. We stress that they are by way of guidelines only and that many factors other than the amount involved may affect sentence. Where the amount is not small, but is less than £17,500, terms of imprisonment from the very short up to 21 months will be appropriate; cases involving sums between £17,500 and £100,000, will merit two to three years; cases involving sums between £100,000 and £250,000, will merit three to four years; cases involving between £250,000 and £1 million will merit between five and nine years; cases involving £1 million or more, will merit 10 years or more. These terms are appropriate for contested cases. Pleas of guilty will attract an appropriate discount. Where the sums involved are exceptionally large, and not stolen on a single occasion, or the dishonesty is directed at more than one victim or group of victims, consecutive sentences may be called for.”

14 In the present case, Advocate Brehaut for the appellant has referred us to two recent Guernsey cases of theft involving breach of trust. In the first, Law Officers v. Le Sauvage (2), the defendant stole £277,335 from her employer, the Royal Bank of Scotland International Ltd. Her course of conduct involved 134 transactions over a period of 3 years and 8 months. Some of the money was taken from the accounts of her in-laws and she concealed the theft from her father-in-law by diverting his bank statements and by lying to him. We are told that none of the stolen money was repaid by the accused. It appears that the money was used to fund her lifestyle. Following a guilty plea, on October 29th, 2007, she was sentenced to 2 years and 3 months’ imprisonment. In its sentencing remarks, the Royal Court referred to Barrick (5) and Clark (6) and said that the sentence that would have been imposed if the defendant had been convicted after trial, and before taking account of mitigating circumstances, was 4½ years’ imprisonment.

15 In the case of Law Officers v. Robilliard (3), the defendant was a civil servant, employed in the Driver and Vehicle Licensing Office. Between 2005 and July 2007, she stole a total of £9,319.63 in cash from the till at work to fund the repayment of debts. She was sentenced on April 9th, 2008 following a guilty plea. The Royal Court regarded a medical condition, not identified in the sentencing remarks, from which she and her 2½ year-old son were suffering, worthy of note and referred to “other problems” which her son had had as having been likely to have caused her to become “exhausted and depressed” at the time of the offences. We were

16 In our judgment, the English Court of Appeal cases provide useful guidance on the principles which should underpin the determination of the sentence to be imposed in a case of this kind. As a general proposition, where someone in a position of trust takes a deliberate decision to abuse that position, it is right that the person should know that he or she will almost certainly go immediately to prison when convicted, and that the length of the sentence will reflect, among other things, the amount misappropriated.

17 In two of these recent Guernsey cases, the Royal Court appeared to be comfortable with the principle of approaching sentencing within parameters set by reference to the sums of money involved. As we have noted in para. 14 above, in Le Sauvage (2) the Royal Court would have imposed a sentence of 4½ years but for the guilty plea and the mitigatory factors. That is very close to what might be expected if the Clark (6) guidance were applied directly (4 years for theft involving £250,000). In Robilliard (3), the 18 months starting point for a case involving the theft of just over £9,000 seems to bear some relation to the Clark suggestion of up to 21 months for £17,500 if, perhaps, a little more than might be expected by such direct application.

18 Drawing the parties’ attention to the single judge’s reasons for allowing leave to appeal in this case, we asked Crown Advocate McKerrell to provide us with an insight into the attitude of the Law Officers of the Crown to sentencing guidance in cases of this kind. We understand it to be positive. We believe, therefore, that it may be of assistance to sentencing courts if we were to suggest what we consider to be the appropriate sentencing parameters in theft cases which involve breach of trust. In identifying these parameters, again we look to the Royal Court for pointers.

19 The Royal Court in Le Sauvage (2) remarked that the Clark (6) figures “should be updated to allow… for inflation” but that the effect of inflation was “largely balanced out” by the fact that, in Guernsey, the maximum sentence for theft is 10 years, compared with 7 years in England and Wales. It is to be noted, however, that the court in Clark did not appear to feel constrained by the new maximum, and suggested that cases involving between £250,000 and £1m. would merit between 5 and 9 years and cases involving £1m. or more would merit 10 years or more for

20 In this case, the Royal Court acknowledged that it derived assistance from Barrick and Clark, but observed “that conditions differ in England; that the integrity of the financial sector is perhaps even more significant here, and that Guernsey did not follow England in reducing the maximum sentence from 10 years to 7 years.”

21 It is, of course, true that conditions in England differ from those in Guernsey. In our view, however, it is important to keep in mind the focus of the Barrick and Clark guidance, i.e. cases where a person in a position of trust has abused that position for his own gain. It seems to us that the crime is no more or less serious depending on where it is committed. This is not akin to cases involving the importation of commercial quantities of controlled drugs where, for a variety of well-known reasons which are special to Guernsey, sentences are generally higher here than in the United Kingdom. We acknowledge the significance of the integrity of the financial sector in this jurisdiction, and agree that sentencing courts should consider the need to protect the reputation of Guernsey as a financial centre. That does not militate against the adoption of the Barrick and Clark guidance in principle, however, because the sentencing suggestions in these cases are of general application, not restricted to theft from financial institutions. If, in a particular case, the defendant’s actions have, or were likely to have damaged Guernsey’s reputation, that can be taken into account as an aggravating factor. Further, as we have already noted, the guidance in Clark is not circumscribed by the maximum penalty of 7 years.

22 It is important that we emphasize that sentencing suggestions are given for guidance only. They indicate a band within which the appropriate sentence may be found, but they are not tariffs. They should not be applied with arithmetical precision. As the Court of Appeal observed in Barrick (5), the circumstances of cases will vary almost infinitely and, ultimately, the sentence imposed in any particular case should reflect the particular circumstances.

23 With these thoughts in mind, we suggest that, as a general approach to sentencing in cases of this kind, courts should have regard to the guidance given in Barrick, as set out in paras. 8–11 of this judgment. That avoids the perceived problems, first, that the Clark (6) update was intended to take account of the changes in sentencing practice introduced by the Practice Statement (4) of 1992 and, secondly, that, by the date of Clark, the maximum sentence in England and Wales had been reduced to 7 years. To be of assistance in this jurisdiction, it is necessary that the Barrick guidance be adjusted to take account of inflation and augmented to assist in determining the appropriate sentence in cases where the amounts stolen are large. We

24 We acknowledge without hesitation that these bands are arbitrary. The merits of approaching sentencing with reference to such guidelines, however, are that it (a) gives to those who are tempted to steal in a cold and calculating manner in breach of trust, notice of what punishment is likely to befall them when convicted and so may deter; (b) assists the sentencing court in what is often an anxious and difficult task; and (c) operates in the greater public interest in achieving consistency of sentencing.

25 In her grounds of appeal and in the hearing before us, Advocate Brehaut invited us to compare the sentences in Le Sauvage (2) and Robilliard (3) with the sentence in the present case. She pointed to what she described as a disparity such that “right-thinking members of the public, with full knowledge of all the relevant facts and circumstances, learning of this sentence [would] consider that something had gone wrong with the administration of justice” in the present case (see Law Officers v. Harvey (1), applying R. v. Pitson (8) and relying on R. v. Fawcett (7)). On that approach, she submitted that we should find the sentence in this case to be “manifestly excessive.”

26 Advocate Brehaut frankly acknowledged that Harvey and Pitson were concerned with unequal treatment among co-defendants. Even in such cases, the following words of Lord Bingham of Cornhill in R. (O’Brien) v. Independent Assessor (9) ([2007] 2 A.C. 312, at para. 26) are apposite:

“It is convenient to touch first on this disparity argument. In some cases (of which R. v Fawcett (1983) 5 Cr. App. R. (S.) 158 is an example) an appeal against sentence has succeeded because right-thinking members of the public, learning of a lenient sentence imposed on a co-defendant, would think something had gone wrong

‘The fact that the co-defendant Sheppard appears to have been extremely fortunate is not in our judgment a good reason for imposing a sentence on the appellant that would in our judgment be less than the facts of the case merit.’”

27 In our judgment, it is wholly inappropriate to attempt to determine whether the sentence in any particular case is manifestly excessive by reference to other unrelated cases (i.e. those where the comparator is not a co-defendant) except, perhaps, in the most exceptional and clearest circumstances. (Even then, the court should be alive to the risk to the public interest identified by Lord Bingham and to the danger of perpetuating sentencing error, as it should where the comparator is a co-defendant). No such exceptional circumstances are present here. On the contrary, it is clear from what we can discern from the sentencing remarks in all three sentencing cases under consideration that both the mitigating and the aggravating factors were dissimilar. Further, it is not possible to know with sufficient confidence what weight was given to these factors by the Royal Court.

28 In this case, the Royal Court selected a starting point of 2 years. In doing so, it took into account a number of factors: the offences were committed over a period; they were planned; the defendant was a senior employee; and there was an element of sophistication. The total amounts were described as “significant but not huge,” and the Royal Court emphasized the defendant’s “significant position of trust.” The court did not characterize this case as damaging to the reputation of Guernsey as a financial centre, nor would the circumstances have justified its doing so. In our view, the Royal Court was entitled to take the view that, as it was

29 We are of the opinion that the gravity of this offence would be sufficiently marked by following the general guidance that we have recommended. We have suggested a starting point of 18 months where the sum involved is £20,000, twice as much as here. We are conscious that the Royal Court was clearly concerned to reflect what it regarded as a high degree of culpability on the part of the defendant. On the evidence before it, that was a view that it was entitled to take. A starting point of 15 months adequately acknowledges that level of culpability. Discounting the figure by one-third to give credit for the guilty plea, and applying the further reduction of one month for what the Royal Court described as “some limited personal mitigation,” the resultant sentence is one of 9 months.

30 In the whole circumstances, we quash the sentence imposed by the Royal Court and impose a sentence of 9 months’ imprisonment on each count, the sentences to run concurrently.