AG v Gouveia [2019] JRC 224 (15 November 2019)

JUDGMENT THE commissioner: 1. The defendant is here to be sentenced on an Indictment, which contains two counts, one of knowingly furnishing false information with intent to obtain an award, and the other of obtaining an award knowing it is not properly payable respectively, in respect of income support.

2. The offending took place over a period of some ten years between April 2008 and August 2018 in relation to Count 1, and between 1 st June, 2009 and th June, 2014, five years in relation to Count 2. The amount involved on Count 1 was £68,606.56 and in Count 2, the amount involved was £1,520.05. The £1,520.05 awards amounted to five particular claims for special payments.

3. The failures which the defendant made were not disclosing that she was in a permanent relationship with her partner and therefore not disclosing her income, and later on not disclosing her marital status because they were married in 2012 and secondly, not disclosing her part ownership with her partner, now her husband, of property in Madeira.

4. There is no doubt from the previous cases which have come before this Court that the usual sentence has been that of a custodial penalty. That is set out in a number of cases and taking them on a fairly random basis, Attorney General v Couillard [2011] JRC 179A , Attorney General v Good and Moody [2015] JRC 027 , Attorney General v Browne [2018] JRC 070 , Attorney General v Bradshaw [2017] JRC119, Attorney General v Cocks [2014] JRC 142A .

5. In a more recent case of Attorney General v McDonald and Hughes [2014] JRC 100, the Court did not impose a custodial sentence upon the basis that there were exceptional circumstances in that case and essentially that is what Advocate Tremoceiro has been submitting us in the present case; that because of back pain in particular and depression, which is all medically evidenced the defendant is a person who can properly ask the Court not to send her to prison for these offences because of these allegedly exceptional circumstances.

6. From the time that we have been out discussing this matter it will be obvious that we have considered this very carefully and the Jurats are not in agreement on it. One Jurat favoured imprisonment, favoured imprisonment is perhaps the wrong word but reluctantly considered that imprisonment was the appropriate sentence. The other Jurat considered it could have been dealt with by way of community service.

7. Having looked at the medical evidence that there is, and because the question needs to be adjudicated I have sided with the Jurat who thinks that an imprisonment sentence is appropriate and so in those circumstances we have gone on to consider how long that sentence should be.

8. We take account very much of the fact that the defendant has pleaded guilty and is of good character and clearly has demonstrated remorse. We think those things are very much to her credit. We also take account of her age. We think that in the circumstances the right sentence is a total of 18 months imprisonment and accordingly the defendant is sentenced to 18 months' imprisonment on Count 1, and given the relatively small amount involved on Count 2, 6 months' imprisonment on Count 2, but they run concurrently, making a total of 18 months' imprisonment.

9. We have already indicated in the course of argument that we think it would be helpful if the Minister were to consider the translation of the forms by which Income Support is claimed into Portuguese. It is a 31 page document, it is a complicated document, and in this case there is no doubt the defendant knew that she was making false representations, the evidence makes that plain and her plea makes that plain. But nonetheless, we think it would be useful if the Minister considered a translation of the forms into Portuguese.

10. It may also be worth considering, whether there is some express or rather more detailed explanation of the word "partner" in the context of these forms, and it may also be worth considering whether the section which is found at page 31 of the form on paragraph 6, which contains a warning, that if false information is given, it amounts to a criminal offence for which the person may be taken to Court and maybe required to repay the money received could be expanded so that the nature of that warning might indicate that the claimant making false claims was potentially liable to imprisonment, because that emphasises the seriousness of making false claims against the States, which we have described as serious on numbers of occasions in the past.

11. We have considered the question of a Compensation Order. In this case there is insufficient information to order it, at this stage. There is uncertainty over the power of sale because the property in Madeira is jointly owned with her husband and there is uncertainty over the extent of the equity share.

12. It is not right in our view, to make an order which would expose this defendant to a further prison sentence if she did not comply with it, and what is more, the department has made an agreement for repayment of the monies overpaid at £100 per month, an agreement made at a time when the department knew there was this property in Madeira. So in our view, it is inappropriate to make a Compensation Order at all, in the present circumstances.

13. The Crown Advocate, rightly draws our attention to the potential for deportation. We do not think it is appropriate to consider a deportation recommendation in this case. Clearly, the second part of the Camacho test is not satisfied ( Camacho v AG [2007] JLR 062) and there would have to be considerable debate about the first part of that test as well.

14. In the circumstances, Mrs Gouveia, you are sentenced to a total of 18 months' imprisonment on Count 1, and 6 months' imprisonment on Count 2, concurrent, making a total of 18 months' imprisonment. Authorities Income Support (Jersey) Law 2007. Criminal Justice (Compensation Orders) (Jersey) Law 1994. Income Support (General Provisions) (Jersey) Order 2008. Attorney General v Couillard [2011] JRC 179A . Attorney General v Good and Moody [2015] JRC 027 . Attorney General v Browne [2018] JRC 070 . Attorney General v Bradshaw [2017] JRC119. Attorney General v Cocks [2014] JRC 142A . Attorney General v McDonald and Hughes [2014] JRC 100. Attorney General v McLoughlin [2012] JRC 179 . Attorney General v Morin [2010] JRC 217D . R v Graham and Whatley [2005] 1 Cr App R(S) 115 . Camacho v Attorney General [2007] JLR 462 . Page Last Updated: 28 Nov 2019 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII