R v Wedderburn (Alton)

• Jurisdiction: Jamaica
• Judge: SMITH, J.A.
• Judgment Date: 30 July 2009
• Neutral Citation: JM 2009 CA 84
• Judgment citation (vLex): [2009] 7 JJC 3011
• Date: 30 July 2009
• Court: Court of Appeal (Jamaica)

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE SMITH, J.A THE HON. MR. JUSTICE COOKE, J.A THE HON. MRS. JUSTICE HARRIS, J.A

R

v

ALTON WEDDERBURN

Leonard Green Chen, Green and Company

Miss Claudette Thompson, Crown Counsel

CRIMINAL LAW - Obtaining money by false pretences - Larceny Act, s. 35 - Sentencing

SMITH, J.A.

1 On the 11 ^th September, 2006, Miss Llyle Armstrong, Senior Resident Magistrate tor the parish of Westmoreland, made an order that the appellant Alton Wedderburn be tried on an indictment containing forty one (41) counts for obtaining money by means of false pretence contrary to section 35(1) of the Larceny Act. The virtual complainant was Red-Stripe. The appellant pleaded not guilty to each count. The trial which occupied some 20 days began on September 11, 2006, and ended October 13, 2008 when the learned Resident Magistrate found the appellant guilty on all counts save count 1. He was sentenced to 18 months imprisonment on each count with the direction that the sentences run concurrently. He now appeals against conviction and sentence.

The Prosecution Case

2 The virtual complainant is a popular supplier of Red Stripe beer and other beverages. Mr. Paul Campbell, the Settlement Manager of Red Stripe, gave the background and explained the system used by the complainant in the sale of its product. Red Stripe has nine (9) distribution centres throughout the island. There is one distribution centre at Smithfield, Savanna-la-mar, Westmoreland. The appellant was at all material times employed by Red Stripe as the distribution manager of the Smithfield depot. At each distribution centre, Red Stripe employs and contracts driver salesmen who are entrusted with its products for sale on a daily basis. These driver salesmen not only sell beer and soft drinks but they also purchase the empty bottles and cases. It is their duty to return to the distribution centre each day and account to the settlement officer for the net value of cash sales and the purchase of 'empties'. The process by which these transactions are accounted for is referred to as the 'Settlement Process'. The contract between Red Stripe and each driver salesman governs their operation on a daily basis. There are also specific Settlement Rules and Guidelines with which the driver salesmen are obliged to comply.

3 According to the Settlement Rules and Guidelines (Exhibit 1) the cash and cheques for goods sold by the driver, salesmen are to be deposited on a daily basis with the Settlement Officer or placed overnight in the company's vault by the driver salesmen. The driver salesmen should hand over the cash and cheques by 8:00 p.m. Failing this, the cash and cheques must be deposited in the vault overnight. Cheques should only be accepted by the salesmen from pre-approved customers of Red Stripe. If a cheque is accepted from a customer who was not pre-approved, the salesman would be held liable if the cheque were not honoured and would have to pay the amount for which the cheque was drawn to Red Stripe in addition to any bank charges. Other relevant Settlement Rules are that a cheque accepted in a sale transaction must be in the name of Red Stripe — the payee, and third party cheques (that is where the payee is not Red Stripe) should not be encashed by the salesmen. Further, personal cheques of the driver salesmen or other employees should not be encashed without the prior approval of an authorized person. The authorized persons were the Financial Controller, Finance Director and the Settlement Manager.

4 Mr. Paul Campbell testified that he had never approved a personal cheque drawn on the account of the appellant or in his name. He also testified that before November 2005, on more than two occasions, Red Stripe received cheques from the appellant which were returned by the bank because of insufficient funds. Consequently, the appellant's name was placed on the company's "bad cheques customers listing" and no further cheques should be accepted from him.

5 Mr. Jermaine McIntosh was a driver salesman employed by Red Stripe. He testified that during the period October 2005 and December 2005 he drove for one Mr. Renee Honeghan of Savanna-la-mar who was on leave. He stated that on November 11, 2005 at about 6:30 p.m. the appellant came to him at the Settlement Room at Smithfield and asked him to change a personal cheque. This cheque was for $133,000.00, the payee was Red Stripe. It was dated 11 ^th November, 2005 and signed by the appellant. Mr. McIntosh said that he unhesitatingly complied with the appellant's request because of the appellant's position as distribution manager. The cheque was identified by the witness and received in evidence as exhibit 2. It relates to count 2.

6 Mr. McIntosh also testified that on November 15, 2005, the appellant asked him if he had any cash. When Mr. McIntosh told him that he had cash for lodgment, the appellant asked him if he could get $200,000.00. Mr. McIntosh gave the appellant $200,000,00 in cash from the Red Stripe money he had to be lodged. The appellant wrote up two cheques each for $100,000.00, payable to Renee Honeghan. These two cheques were personal cheques drawn on NCB and signed by the appellant. They were identified in Court by Mr. McIntosh and received as exhibits 3A and 3B. They relate to counts 6 and 10 respectively.

7 It is also the evidence of Mr. McIntosh that on December 9, 2005 the appellant asked him to encash his (the appellant's) personal cheque for $130,000.00. The witness testified that he gave the appellant $130,000.00 in cash and the appellant gave him a personal NCB cheque payable to R. Honeghan in exchange. The cash, the witness said, was part of the proceeds of sale of Red Stripe products. This cheque relates to count 36. It was received in evidence as exhibit 4.

8 The witness swore that on all these occasions he encashed the appellant's cheque because he was afraid that if he had refused to do so the appellant would cause him to lose his job. Exhibits 2,3A, 3B and 4 were not honoured by the bank. They were lodged to Red Stripe Account and were stamped "Insufficient Funds /Refer to Drawer".

9 Another truck driver, Mr. Oral McIntosh, testified that in November 2005 he worked at Red Stripe's Savanna-la-mar distribution centre, in Westmoreland. He recalled that during November and December, 2005, the appellant asked him to encash several cheques from the cash he received from the sale of Red Stripe products. He said that he did as the appellant asked because the appellant was the distribution manager. He identified five (5) NCB cheques which he encashed for the appellant. The payee on three of the cheques is the witness and the payee on two is Red Stripe.

The following three (3) cheques were written by the appellant:-

The other two were written by the witness at the request, he said, of the appellant:-

All five cheques were signed by the appellant. They were all stamped "Insufficient Funds/Refer to Drawer"- see exhibits 5A-E. These relate to counts 5,8,9,15 and 16. Mr. Oral McIntosh said it was the appellant who asked him to write up the last two cheques referred to above. After he wrote them, the appellant, he said, signed them and returned them to him. He lodged them in the vault in the Settlement Room at the distribution centre. He swore that he did not in anyway benefit from encashing the cheques for the appellant. When the cheques were returned, he could not find the appellant.

• · cheque dated November 14, 2005 for $150,000.00, payee Oral McIntosh

• · cheque dated November 15, 2005 for $159,000.00, payee Oral McIntosh

• · cheque dated November 15, 2005 for $12,500.00, payee Oral McIntosh.

• · cheque dated November 21, 2005 for $ 180,320.00

• · cheque dated November 21, 2005 for $100,000.00

10 Mr. Andrew Nathan also gave evidence for the prosecution. He was a sales contractor of Red Stripe. He testified that during the period November 13 to December 9, 2005 he encashed twelve (12) of the appellant's personal NCB cheques at the latter's request. He swore that he gave the appellant cash for the cheques from sums received from the sale of Red Stripe products. These cheques, he said, were lodged in the Red Stripe vault. All of these cheques were returned endorsed "Insufficient Funds/Refer to drawer". He identified these cheques which he said he saw the appellant sign. The payee on each cheque is "Andrew Nathan". They were received in evidence as exhibits 6A-L. They concern counts 11, 12, 13, 14, 32, 33, 35, 37, 38, 39, 40 and 41 and are for $150,000.00, $100,000.00, $100,000.00, $100,000.00, $150,000.00, $110,000.00; $99,777.00; $170,596.98; $177,380.00; $130,000.00; $127,000.00 and $195,000.00 respectively. Mr. Nathan testified that when the cheques were returned he went in search of the appellant but to no avail. The amounts on the cheques, he stated, remained unpaid.

11 Ms. Tracia Jackson, the appellant's sister-in-law was at the material time employed to Red Stripe at Smithfield, Westmoreland as the Settlement Officer. The Distribution Centre Manager, that is the appellant, was in charge of her. As Settlement Officer, she was responsible to settle the accounts of the salesmen daily. She would check the products consigned to each salesman when he was about to proceed on his route each morning. When the salesman returned she would check to ensure that the sales balanced with the cash, customer cheques, cash invoices and ledger credit bills. She would do an overall summary of cash and cheques and put them in a lodgment bag for Brinks to take to the Bank.

She testified that if a cheque was returned it would be placed in the lodgment bag at the bank. The lodgment bags were collected at the bank by the appellant or herself. If a cheque was returned she would copy the returned cheque, give the salesman a copy so that he would contact the particular customer and fax a...