R v Clark (Trevor)

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeLORD JUSTICE ROSE
Judgment Date27 Nov 1997
Judgment citation (vLex)[1997] EWCA Crim J1127-9
Docket NumberNo: 9701971/W2

[1997] EWCA Crim J1127-9

IN THE COURT OF APPEAL CRIMINAL DIVISION

Royal Courts of Justice

The Strand

London WC2

Before:

The Vice President

(Lord Justice Rose)

Mr Justice Holland

and

The Recorder of Liverpool

(HHJ Clarke QC)

(Acting as a Judge of the CACD)

No: 9701971/W2

Regina
and
Trevor Clark

MR J DONNE appeared on behalf of the Appellant

MR R SMART appeared on behalf of the Crown

1

Thursday 27th November 1997

LORD JUSTICE ROSE
2

On 7th February 1997 at Southwark Crown Court, this appellant pleaded guilty to two counts of theft, and on 10th March he was sentenced by His Honour Judge Butler QC to 5 years' imprisonment on each count concurrently. Following refusal of leave to appeal by the Single Judge, he now appeals with the leave of the Full Court. Leave was specifically granted so that consideration could be given by the Court to the possibility of updating the guidelines in R v. Barrick (1985) 7 Cr.App.R.(S.) 142, in the light of factors occurring since that decision.

3

The offences occurred in this way. The appellant was employed as the bursar of the Royal Academy in London and he was also the treasurer of his local church in Hertfordshire. The prosecution case was that in relation to both those organisations he abused his position of trust in order to steal just under £400,000 from his employers (that gave rise to count 1) and £29,000 from the church (that gave rise to count 2), the offences being committed over a 4 year period, beginning in 1991.

4

Initially the reason—if reason it be—for the commission of the offences was in order to discharge mortgage arrears and other debts, but later the proceeds of these offences were expended on a significantly more extravagant life-style than the appellant could afford. In particular, in carrying out house improvements, buying horses, spending large sums on school fees and the like.

5

The money was taken from the Royal Academy in a number of ways. The appellant drew cheques on the Summer Exhibition account to pay for his own personal expenditure. He drew other cheques payable to the Royal Academy which he cashed in the Academy's strong room. Still other cheques, drawn payable to the church's account, were used by the appellant to effectively launder money which he was obtaining from the Royal Academy. In addition, he used a Royal Academy credit card for personal expenditure. Similarly, so far as the church was concerned, he cashed cheques drawn on the church's account in the Academy's strong room. Cash proceeds from church fund-raising events were taken by the appellant, and he also used cheques drawn on the church's account to pay for items of personal expenditure. The offences came to light in late 1995 and early 1996.

6

When challenged by his vicar and by the employers, he made admissions immediately and resigned both from his employment and from the post of church treasurer. Thereafter he co-operated fully with the investigation which necessarily followed. He made admissions fully to the police and helped the accountants instructed on behalf of his former employers. He consented to a summary judgment in their favour, in civil proceedings, by reason of which he is now bankrupt. He pleaded guilty at the first opportunity and he made repayment in the sum of approximately £120,000 (coming from, in particular, the sale of his house) of part of that which he had taken. There was some dispute between prosecution and defence as to the precise total figure which he had taken, but it was conceded by the appellant that the sum was certainly in excess of £300,000.

7

In passing sentence the learned judge referred to the number of years over which the offences had been committed, said they had been motivated by greed and a desire to live at a higher level than his income could support, and that gross breaches of trust had been committed. The judge said that he would take into account the previous good character of the appellant and his guilty pleas at the first opportunity.

8

On behalf of the appellant, Mr. Donne has made a well researched, sensible and attractive submission to this Court. He has drawn attention to the effect of inflation upon the figures to which the judgment in Barrick referred, to the effect of the Practice Statement issued as a consequence of the Criminal Justice Act 1991 and to the reduction, in cases of simple theft, of the maximum sentence from 10 to 7 years. In the light of these considerations, and a large number of authorities which he has helpfully placed before the Court, he makes the submission that 5 years was excessive and a sentence of three-and-a-half years would be appropriate. We are prepared to accede to that submission to some extent as will appear.

9

The starting point is necessarily Barrick. At page 145 Lord Lane C.J., giving the judgment of the Court, said this:

"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 means in the shape of disgrace for himself and hardship for himself and also his family.

It was not long ago that this type of offender might expect to receive a term of imprisonment of three or four years, and indeed a great deal more if the sums involved were substantial. More recently, however, the sentencing climate in this area has changed … and certainly so far as solicitors are concerned, has changed radically."

10

The learned Lord Chief Justice went on to refer to a number of authorities and then at page 146 said this:

"It is, we appreciate, dangerous to generalise where the circumstances of the offender and the offence may vary so widely from case to case. In the hope that they may be helpful to sentencers generally, and may lead to a little more uniformity, we make the following suggestions.

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 sort bring upon themselves, the Court should nevertheless pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence. The sum involved is obviously not the only factor to be considered, but it may in many cases provide a useful guide. Where the amounts involved cannot be described as small but are less than £10,000 or thereabouts, terms of imprisonment ranging from the very short up to about eighteen months are appropriate (see for example WESTON (1980) 2 Cr.App.R.(S.) 391). Cases involving sums of between about £10,000 and £50,000 will merit a...

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