Louis Joseph Marie Gerard Tyack
Appellant
v.
The State
Respondent
FROM
THE SUPREME COURT OF
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 29th March 2006
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Present at the hearing:-
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[Majority judgment delivered by
Air
The appellant was at the centre of the misfeasance, as general manager in charge of finance and company secretary, playing a part which their Lordships will describe later in more detail. When rumours of irregularities were spreading and an internal inquiry had been commissioned, he admitted his part, provided detailed information to the police and expressed willingness to give evidence against the other participants. He was charged on two counts of conspiracy to defraud, which carried a maximum penalty of five years’ penal servitude. The subject matter of the charges represented only a small fraction of the sums wrongly received by the appellant on his own admission, and an even smaller fraction of the company’s overall loss. He pleaded guilty at the
Before turning to the facts in more detail their Lordships would observe that although the Board has power to consider appeals against sentence, it is an area in which they are particularly slow to intervene, paying considerable deference to the views of the local court. In Chinien v The State [1993] 1 WLR 329, also an appeal from the Supreme Court of Mauritius,
“It is very unusual for this Board to intervene or even to entertain argument in relation to sentences passed by a court of competent jurisdiction.”
It was prepared to do so in that case because questions of principle were involved. In the present case it is claimed that the
It was common case, and accepted as correct by the Supreme Court in its judgment, that the Mauritian courts will be guided in sentencing by the principles and guidelines applying in
The appellant, who is now 65 years of age, joined Air
The appellant stated that these sums were initially used to finance political parties, but that “some years later” Sir Harry Tirvengadum asked him to effect various payments from the fund, including additional salaries for Sir Harry himself, for the appellant and for other colleagues, since “il avait la haute main” – he had the upper hand. It was common case that the total sum involved in the fraud was some 85 million rupees, roughly equivalent to £1.5 million sterling, and the amount which the appellant received came to some Rs 27.5 million, equivalent to £513,000 approximately.
About the beginning of September 2001 rumours began to spread about fraud at Air
The appellant was charged on two counts of conspiracy to defraud, contrary to section 109 of the Criminal Code (Supplementary) Act, an offence which carries a maximum penalty of five years’ penal servitude. The charges related to two specific transactions in
The appellant pleaded guilty to these charges at the
The magistrate adjourned sentencing until
“the accused’s involvement in such a fraud, in breach of his position of trust and causing prejudice, not only to his employer, but also the company shareholders, cannot be condoned or viewed lightly.”
She emphasised (Record, p 19) that
“in this context of rampant white collar crime, were the Court were to be unduly lenient to the accused, it would be sending the wrong signals to those professionals in positions similar to the accused, who would have the impression that they can engage into illegal activities and frauds with impunity and get away subsequently merely by refunding the amount due and showing their contrition and regrets over what has taken place.”
She concluded (Record, p 20) as follows:
“Bearing in mind all the mitigating factors in favour of accused and highlighted during the proceedings, I am of the view that the maximum custodial sentence provided under s 109 of the Criminal Code Supplementary Act, namely 5 years penal servitude, is not warranted in the present case. A lesser sentence will meet the ends of justice and I sentence accused to undergo 3 years penal servitude under each count.”
The appellant appealed to the Supreme Court of Mauritius on the grounds that (a) the sentence was wrong in principle and was manifestly excessive in the circumstances of the case (b) the magistrate had erred in taking into consideration extraneous and irrelevant matters which went beyond the charges preferred (c) a non-custodial or suspended sentence should have been imposed.
The appeal was heard on
Counsel appearing on behalf of the prosecution, Principal State Counsel Mrs G Manna, submitted that a custodial sentence was correct in principle, but that the sentence imposed by the magistrate was on the high side, in view of the mitigating factors, in particular the assistance which the appellant gave to the police. At the conclusion of its judgment the Supreme Court criticised counsel for the prosecution for making these submissions, but in the light of the matters which they will discuss in this judgment their Lordships consider that the criticism was rather misplaced.
In its judgment the Supreme Court discussed a number of English and Mauritian authorities on sentencing, but it is significant that at no point did it advert to the fact that the appellant had been charged on only two counts and had not asked for any others to be taken into consideration. It had regard to the whole period of the conspiracy to defraud Air
“It was also submitted that the learned magistrate had taken into account 15 matters which were extraneous to the counts of conspiracy. We do not share that view. On the contrary, the learned magistrate was alive to the counts with which the appellant stood charge and only took into consideration the evidence placed before her for the purpose of passing the sentence. Apart from those factors which went towards mitigation which she bore in mind, there were, indeed, facts showing the aggravation of the offences for which the appellant was charged and which the learned magistrate was perfectly entitled to take into account. She rightly considered the fact that (a) the scheme to strip off the public company lasted for some 18 years; (b) the appellant had benefited from that fraud and had remitted apparently what remained of the bounty, the sum of some Rs27m and (c) had actively participated in the scheme despite his allegation that he was acting under the instruction of the then almighty chairman. The learned magistrate, en passant, mentioned that the appellant, also in his capacity as the Company Secretary, failed to report the matter to the Board of Directors. Furthermore, despite the fact that the “almighty” was not in office at some stage, the fraud continued until the scandal was let off the bag by others. In the light of what had been said in R v
There remains lastly the qualm of the appellant that he was not given sufficient discount in the light of all the mitigating factors in his favour. True it is that the learned magistrate did not say what would have been the appropriate sentence had the case gone for trial. We consider that in the light of the breach of trust, the ripping of fund during a long period through a scheme designed by those in the top management of a public company and the huge amount involved, a sentence of 5 years would not have been unreasonable. As a cold comfort to the submission of learned counsel for the appellant in a case of extreme seriousness, the trial court would be entitled to order the sentences to run consecutively to reflect the very serious nature of the offence and the disapproval of the society to which the court owes a duty as well.”
Again, at p 127 the court referred to “the huge amount involved as admitted by the appellant”.
The Supreme Court referred to the guidelines laid down by Lord Lane CJ in R v Barrick (1985) 81 Cr App R 78; 7 Cr App R (S) 142 concerning the proper level of sentencing in fraud cases, under which a case involving sums of between about £10,000 and £50,000 would merit a term of about two to three years’ imprisonment, subject to other factors which might operate by way of aggravation or mitigation. It went on to point out quite legitimately, however (Record pp 125-6)
“… we must not forget that the incomes which obtain in
The court expressed the view that a custodial sentence was not wrong in principle and set out its conclusion at Record pp 127-8:
“Considering what had been said in R v Barrick (supra) and Dimsey (supra), the huge amount involved as admitted by the appellant, the more so that this is a very serious fraud by a person in a position of trust which must be checked especially that the State deemed it necessary to pass laws to curb down white-collar crimes which are legion, we have not been shown in what way the learned magistrate had erred in applying the sentencing principles which she had elaborated and which were inspired from the decisions in the United Kingdom. We find that the sentence passed was neither wrong in principle nor manifestly harsh and excessive having regard to all the circumstances of this case.”
In his printed case Mr Thornton QC advanced six submissions on behalf of the appellant in support of his case that the Supreme Court had been in error (1) the appellant was sentenced for offences to which he did not plead guilty (2) it wrongly took the maximum sentence of five years as the appropriate starting point (3) a discount of 40 per cent from the starting figure was insufficient in the circumstances (4) the court reduced the discount because of the nature of the crime (5) the court departed from the English authorities (6) the court wrongly applied the guidelines in R v Barrick. These submissions overlap to some extent and depend essentially on the correctness of the first argument. Mr Dixon for the State did not adopt the same approach as Mrs Manna had before the Supreme Court, but maintained that the Intermediate Court had been correct in law and justified in looking at the entire course of the appellant’s conduct when sentencing him, that it was accordingly reasonable to start from the maximum sentence and that the discount allowed had been sufficient.
Their Lordships are in agreement with the conclusion of the Supreme Court that a custodial sentence was required and that it was not appropriate in a case of this type to suspend it or to restrict it to a short sentence on the “clang of the prison gates” principle. They feel that it is necessary, however, to examine further the question of the basis of sentencing on the two charges, the starting point in determining the length of sentence and the discount or discounts which should be allowed.
There was a good deal of discussion in argument before the Board of the use of specimen or sample counts in criminal prosecutions. Their proper function may not always have been properly understood, but the severe limits upon recourse to them need to be more clearly appreciated than ever. In the words of the Law Commission, the “pragmatic arrangement” thitherto adopted of charging offences which were to be regarded as examples of a wider range of offending was “thrown into disarray” by the decision of the Court of Appeal in R v Canavan [1998] 1 Cr App R 79; sub nom R v Kidd [1998] 1 WLR 604 (Report of the Law Commission “Effective Prosecution of Multiple Offending (2002) Law Com No
“For very many years prosecuting authorities have framed indictments including a small number of specimen or sample counts said to be representative of other criminal offences of a like kind committed by the defendant. This may, for example, be done where a defendant is said to have sexually abused a child victim frequently over a period, but the child is unable to particularise any specific occasions on which abuse occurred. Two or three counts, perhaps, may be included in the indictment; the prosecutor will make plain that they are specimen counts; and the victim will give evidence of the frequency with which the abuse occurred. The practice may also be adopted where, for example, a defendant is said to have obtained money by deception on numerous occasions: instead of burdening the indictment with numerous counts charging all the instances relied on, a few counts only may be included, and it will be made plain to the court and the jury that they are relied on as representative of a more extensive course of similar conduct. If, in a situation such as this, the jury convicts the defendant on one or more specimen counts, the practice of the court has been to pass a sentence which takes account not simply of the isolated instances specified in the counts but also of the conduct of which, on the evidence adduced by the prosecution, those counts are representative. This is undoubtedly a convenient and economical way of proceeding in cases of this kind, and when appeals have reached this Court against sentences passed on sample or specimen counts no objection has been raised to the practice. It is, however, submitted for the appellants that the practice is contrary to fundamental principle and inconsistent with recent statutory provisions.
A defendant is not to be convicted of any offence with which he is charged unless and until his guilt is proved. Such guilt may be proved by his own admission or (on indictment) by the verdict of a jury. He may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to take into consideration when passing sentence: see Director of Public Prosecutions v. Anderson (1978) 67 Cr.App.R. 185, [1978]
The consequence of this decision, whose logic and correctness in principle the Law Commission said “cannot be faulted”, has been to make the specimen count virtually a dead letter.
It appears to be undeniable that difficulties, greater than the court had foreseen, have arisen out of the decision in Canavan (see R v Tovey and Smith [2005] EWCA Crim 530, [2005] 2 Cr App R (S) 100, para 13, per
If the case is contested, accordingly, in the light of Canavan a defendant cannot be sentenced for conduct which has not formed, expressly or by necessary implication, the subject of charges laid against him. It is therefore important that the prosecution should include sufficient counts to reflect the extent of the defendant’s criminal behaviour and the period during which the offending occurred: cf Canavan at page 84; R v Tovey and Smith, para 34; R v M [1999] NI 45 at 56, per McCollum LJ; and see the useful reminder given by Kennedy LJ in R v Twisse [2001] 2 Cr App R (S) 9, para 7. The extent to which this is practicable is, however, limited: see the views expressed by
Where the defendant intends to plead guilty to the whole catalogue of offences in a series and they can be sufficiently specified, it is desirable that these other offences should be specified and that he should ask for them to be taken into consideration. This may prove to be impracticable where the other offences are extremely numerous or cannot be precisely specified. In such case there should be clear agreement between the prosecution and defence, which should be stated in open court and preferably recorded in written form, that the judge may sentence on the basis of the whole series of offences: cf
The extent of the residual life left in specimen counts was not, however, a central issue in the present case when correctly regarded. If one concludes, as their Lordships consider they must, that the intention of the prosecuting authorities in framing the indictment with only two counts was to recognise and reflect the extent of the appellant’s co-operation, then it was inconsistent with that approach and incorrect in principle for the court to go behind that and sentence him on the basis on the entire course of his wrongdoing. By the same token, if his co-operation has been reflected in the prosecutorial decision, it would be double-counting to apply a further discount for that factor at the time of sentencing.
Their Lordships accordingly consider that the Presiding Magistrate and the Supreme Court were in error in approaching the case, as they manifestly did, as one in which the whole course of the appellant’s wrongdoing should be reflected in the sentence. No doubt a feeling that the approach was incorrect lay behind
The range of sentencing propounded in R v Barrick for frauds involving £10,000 to £50,000 was two to three years, which would then be subject to any aggravating or mitigating factors. This is the proper starting point, not the maximum sentence, which was quite inappropriate as a potential sanction for the offences charged. Their Lordships consider it right to bear in mind the difference in the cost of living and the level of salaries between
Their Lordships will accordingly allow the appeal and substitute a term of two years for that of three years ordered by the magistrate. The appellant will have his costs of the appeal to the Board.
Lord Mance
Save in one area, I agree with the advice of the Board prepared by my noble and learned friend, Lord Carswell. I have the misfortune to disagree with the Board’s refusal to allow any discount for the assistance rendered by the appellant to the police and prosecuting authorities.
The appellant was charged with only two limited offences, each couched in terms of conspiracy and carrying a maximum sentence of five years penal servitude. In the event the sentences passed of three years imprisonment on each count were made concurrent. I agree with the Board that the sentencing judge erred in sentencing the appellant as if he had been charged with a much wider fraud, or had asked for other charges going to make up that fraud to be taken into account. The judge was only entitled to sentence the appellant for the two limited offences charged.
I also agree that, on the basis of those two limited offences, the appropriate starting point for sentencing would have been a total of two to three years on conviction. That is before any discounting for mitigating circumstances such as the appellant’s immediate admission of guilt, remorse and guilty plea and the fact that apart from the aberration of his involvement in fraud on Air Mauritius he appears to have had a blameless and hard-working business and family life.
The guidelines in R v. Barrick (1985) 7 CrAppR(S) 142 (as modified in R v. Clark [1998] 2 CrAppR 137 after the maximum sentence for simple theft in England and Wales was reduced from 10 to 7 years) indicate a sentence of that order on conviction for theft involving dishonest breaches of trust in sums between £17,500 and £100,000. Here the maximum sentence for conspiracy was only 5 years penal servitude, and the total amounts involved in the two offences with which the appellant was charged equated to no more than about £18,500. This is in nominal terms at the bottom of the Barrick/Clark scale, but, as the Court of Appeal pointed out, a straight comparison of the value of money in Mauritius and England is unrealistic. A sum of £18,500 in Mauritius may more appropriately be regarded as near the top of the Barrick/Clark scale of £17,500 to £100,000. Hence a starting point of two to three years on conviction. I would be prepared myself to take three years. The slight difference between the maximum possible sentence of seven years in England and Wales and of five years in Mauritius can, I think, be put on one side.
The Board would apply to this starting point a discount for the appellant’s plea, bringing the actual sentence down to two years. If one assumes that three years would have been the appropriate sentence on conviction, I agree that a one-third discount would be appropriate to take account of the appellant’s voluntary confession and early plea: see R v. Buffey (1993) 14 CrAppR(S) 511, 515. The Board would however refuse any further discount to take account of the appellant’s very substantial co-operation, past and continuing, in revealing and assisting in the prosecution of the wider fraud. It is said that it would be double counting to allow any further discount, since “one must conclude” that his assistance has already been reflected in a prosecutorial decision only to pursue him on two limited counts. This appears to me a speculative path, not explored in the Courts below or in the prosecution case or submissions before the Board until the Board raised it. I am also concerned that it draws an inappropriate line between the prosecutorial and judicial functions and reduces the incentive to assist.
The only presently relevant point that the prosecution made in its written case to the Board was to draw attention to Kennedy LJ’s observation in R v. Twisse [2001] CrAppR(S) 37, paragraphs 7-8 that, where a limited charge is preferred and there is no request to take any other offences into consideration
“... the court is not required to blind itself to the obvious. If he [the defendant] claims that the occasion in question was an isolated transaction, the submission can be rejected. He can be given the appropriate sentence for that one offence without the credit he would receive if he really were an isolated offender.”
In other words, a defendant cannot be heard to say that he was an isolated offender, if it is obvious that he was party to some wider course of offending. He loses the possibility of such mitigation as would have existed if he had committed no more than an isolated slip.
In the present case, the appellant did not portray himself as an isolated offender. On the contrary he pointed out that he was charged with two limited offences, which he had confessed and to which he had pleaded guilty at as early a stage as possible, that he had disclosed much wider offending, that he had made full recompense and that he had assisted and was continuing to assist in the pursuit of others. These included the person who both sides assert was the initiator of the scheme, Sir Harry Tirvengadum, chairman of Air Mauritius and so the appellant’s superior and described by the appellant as an all-powerful and controlling personality. They also included other major alleged participants in the scheme, namely Joseph Rivalland, Louis Yip Tong and Derek Taylor, executive directors of Rogers Co. Ltd, the company which was used to channel the monies extracted from Air Mauritius. Sir Harry and these other alleged participants are due shortly to stand trial, each on a single charge of conspiracy relating to the wider alleged fraud (and so each exposed to a maximum of only five years penal servitude). Lord Carswell has in paragraph 7 described the active steps that the appellant took to bring to the attention of the authorities the full ambit of the wider fraud, by providing detailed information and his own detailed “cash book” documenting it. The police acknowledged at his trial that his evidence was “crucial for the enquiry into Air Mauritius affairs”. It will be correspondingly central to the forthcoming trial involving Sir Harry and others.
In these circumstances, the question is whether it is right to refuse the appellant any discount for his assistance, past and continuing into the future. The authorities indicate that the combined discount for an early confession and plea coupled with such assistance would commonly be in the range of one-half to two-thirds, although there is no tariff or “hard and fast rule” (R. v. King (1985) 7 CrAppR(S) 227, 230; R v. Sehitoglu and Ozakan [1998] 1 CrAppR(S) 89) and the area has been described as “fraught with difficulties” (R v. Sivan (1988) 10 CrAppR(S) 282, 286). The discount for assistance has been explained on two grounds (R v. X (1994) 15 CrAppR(S) 750), first, as a practical demonstration of acceptance of guilt and remorse, and, second, expediency – to assist in the arrest of others and the prevention of crime. The latter pragmatic consideration has been repeatedly emphasised (cf e.g. R v. Lowe (1978) 66 CrAppR 122, R v. King, above, and R v. Sivan, above). The authorities also stress as one factor that may affect the level of discount the danger that giving such assistance may involve (cf e.g. R v. Sinfield (1981) 3 CrAppR(S) 258, 259-260; R v. King, above at 230). There is no suggestion of any danger as a relevant factor in the present case.
Here, however, the authorities were made aware of the fraud and of its scope by the appellant, and, on the basis on which both sides ask the Board to approach this appeal, his assistance has been and will be crucial to its unveiling and to the pursuit of the alleged ring-leader and other major participants. The two charges laid against the appellant relate to a period prior to Sir Harry’s departure. It is true that the appellant’s assistance relates to a wider fraud involving some Rs. 85 million, equivalent to £1.5 million, which he asserts continued thereafter and out of which the appellant personally received and continued to receive very substantial benefit (totalling Rs. 27.5 million, equivalent to about £513,000). But he also volunteered to return all personal benefit at the same time as he disclosed the fraud and did so within a few days. There is nothing to suggest that he did not do so fully as regards his personal benefit.
It is said that the appellant must already have received a full discount, because the prosecution restricted the charges brought to two involving some £18,500, compared with the total £513,000 which the appellant said that he received and returned as his personal benefit. It is quite possible that the prosecution restricted the charges (laid as early as 29th November 2001) to only two in order to reflect the appellant’s assistance. But the point was never discussed or shown below, and I do not think that it can be regarded as clear. There may have been other reasons. I have already noted that Sir Harry and his co-defendants have only been charged with single offences exposing each of them to a risk of no more than five years penal servitude.
In my view it is not appropriate to refuse the appellant any discount whatever for his assistance on the suggested ground that it would represent a double discount. First, as I have said, this ground is untested speculation that the reason for limiting the charges brought against him was a wish to limit his punishment. Second, even if there had been clear evidence that that was the motivation, I would be unhappy about a process of reasoning which gives effect in the sentencing process to a prosecutorial decision and motivation. Third, I am unhappy about an approach which comes close to sentencing the appellant for a wider course of offending for which he has never been charged and which he has never asked to be taken into account. If the appellant had confined himself to admitting involvement in two charges, and had made no admissions or had put up a defence (e.g. of duress or ignorance of any wrongful purpose) in relation to any wider fraud, he would still have been entitled to a discount for assistance given implicating an alleged ring-leader and any others in relation to that wider fraud. If the prosecuting authorities chose not to pursue him for the wider fraud, and he did not admit it and ask for it to be taken into account, he could not be denied a discount on the basis that he might have been involved in it. Fourth, the practical implications of refusing a discount for assistance in a situation where it is thought that the prosecution have under-charged are unclear. Suppose that someone in the appellant’s position only admitted, and the police only knew about, two offences when they first charged him, there would be no or very little real incentive for him to disclose any wider fraud, if this would lead either to further charges or, if it did not, to a refusal to allow any discount for his assistance.
Although any difference this may make to the length of the sentence may be small, I consider it wrong for these reasons to refuse all discount for the assistance given. I appreciate that this was for
