[New search]
[Printable RTF version]
[Help]
MICHAEL DALE ROWLAND, R v. [1997] EWCA Crim 1705 (4th July, 1997)
No:
96/7069/X4
IN
THE COURT OF APPEAL
CRIMINAL
DIVISION
Royal
Courts of Justice
The
Strand
London
WC2
Friday
4th July 1997
B E F O R E :
LORD
JUSTICE BROOKE
MR
JUSTICE GARLAND
and
HIS
HONOUR JUDGE FAWCUS
(Acting as a Judge of the CACD)
- - - - - - - - - - - - -
R E G I N A
- v -
MICHAEL
DALE ROWLAND
- - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 831 3183 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - -
MR
W RODDICK QC
appeared on behalf of the Applicant
- - - - - - - - - - - -
JUDGMENT
(
As
approved by the Court
)
- - - - - - - - - - - -
Crown Copyright
Friday
4th July 1997
HIS
HONOUR JUDGE FAWCUS: On 19th January 1996 the applicant appeared before Judge
Pickering at Liverpool Crown Court, when he changed his plea from not guilty to
guilty of conspiracy to defraud on count 2 of the indictment. Following the
trial of two of his co-accused, he was then sentenced on 18th September to 27
months' imprisonment and at the same time was disqualified from acting as a
company director for three years. Also at the same time he was acquitted by
direction on a further count of conspiracy (count 1 of the indictment), and
there were three further counts of theft or obtaining by deception which were
ordered to lie on the file. The applicant renews his application for leave to
appeal that sentence, leave having been refused by the single judge.
At the material time the applicant was the managing director of a
well-known chain of hairdressing salons, trading under the name Alan Paul.
Amongst the accused with him were Alan Moss, the founder of the company
and its chairman; Harley Muse, who had been appointed franchise director from
1989; James McLuskey, who was a former official of the Royal Bank of Scotland
who lent himself to the dishonesty involved; and a Karen Walker, who was a
junior to, and assistant of, McLuskey. Mr Moss was sentenced to three years'
imprisonment on each of the two counts of conspiracy to which he had also
pleaded guilty. He was disqualified from being a director for a period of five
years. Mr Muse was sentenced to 30 months for his part in the conspiracy
alleged in count 2, to which he also had pleaded guilty. But both McLuskey and
Walker were convicted after trial on count 2 and were sentenced respectively to
two years' imprisonment with disqualification for three years, and in Mrs
Walker's case, nine months' imprisonment suspended for two years. All save Mr
Moss applied for leave to appeal their sentences. Leave was refused by the
single judge and their applications were not renewed. We are therefore
concerned in this application with only count 2 as it relates to this applicant.
That named all the alleged co-conspirators and alleged between 1st January
1988 and 4th December 1991 that they had conspired together and with others to
defraud banks and other lending institutions as might be induced to make
advances to purchasers of franchises from the Alan Paul Group by dishonestly --
and then three main headings of particulars were set out:
"i.
Making or causing to be made false representations in applications for
franchise loans, curriculum vitae, business projections and other relevant
documents as to:
(a) the total prices to be paid to Alan Paul on the sale of the franchises;
(b)
the deposits to be paid by the franchisees;
(c)
the employment history of the franchisees;
(d)
the financial status of the franchisees;
(e)
the profitability of the businesses to be franchised.
ii.
Causing the production of false references in respect of franchisees.
iii.
Making or causing to be made false representations that the Alan Paul Group
had sold or was proposing to sell franchises to bona fide franchisees in
genuine and arm's length transactions."
We will refer to that count in its totality because, as Mr Roddick QC has
reminded us, the basis of the applicant's plea of guilty was on only heading
i.(b), namely representations as to the deposits to be paid by the franchisees.
It is relevant to briefly refer to the first count of the indictment on
which, as we have already said, this applicant was acquitted. It was alleged
that between 1st January 1991 and 4th December 1991 the conspirators conspired
together and with others to defraud such corporations, companies, partnerships,
firms and persons as might be induced to underwrite or subscribe to an issue of
shares in Alan Paul by dishonestly falsely stating that the pre-tax profits of
Alan Paul for the financial year were £3.74 million, and then two other
subheadings of that. We mention that because that is the count to which Mr
Moss, the chairman of this group, also pleaded guilty. We accept Mr Roddick's
submission that that was a serious matter and it was that matter which was
relevant to the question of damage done to City institutions.
The grounds of appeal, which have been succinctly elaborated by Mr Roddick
before us this morning, were that the judge, having in great detail mentioned
the matters that he took into account -- in that context it is pertinent to
note that he had before him a bundle which we have before us, which contain not
only a copy of the basis of plea but a copy of the submissions in mitigation
which were submitted to the judge prior to the sentence hearing on 18th
September, together with some statements and testimonials -- emphasised matters
which were relevant to sentence of either Mr Moss or Mr Muse which were not so
relevant, because of the applicant's much lesser involvement, to the applicant
himself. He gave some examples of these by reference to the transcript of
Judge Pickering's sentencing remarks which were contained in 18 pages.
The first point that he made -- and this was a general point -- was that
there was a difference between the case statement made by the prosecution and
their opening to the judge before sentence. He referred us to page 49-50 of
the case statement and indicated that there was a very different approach.
It is clear to us, having read the judge's judgment, that he had that well
in mind when considering the case in relation to this applicant as well as the
others.
The learned judge, it must be emphasised, had listened to the evidence in
this case in the context of a two-month trial of the co-accused McLuskey and
Walker and must, from that, have had a far greater familiarity with the
background and details of this case than have we, although we have a very full
summary before us.
It is relevant to deal briefly with the summary of the background to these
offences so that one can see the context in which the various defendants put in
their pleas.
This applicant left school and trained as a hairdresser and joined a
business on the Wirral which was then known as Alan Paul. Thus he was with
this company, and the group as it thereafter became, from the outset. During
the 1980s Alan Paul became the largest hairdressing group in Europe and a
public limited company. Its principal business was the franchising and
operation of hairdressing salons. In May 1989 it was introduced to the
Unlisted Securities Market. In May 1990 it purchased a company called
Essanelle (which operated itself 253 salons in department stores up and down
the United Kingdom and also in West Germany) paying in the region of £8.5
million. In July 1990 it acquired another small chain of hairdressers in
Bristol. So that by March 1991 the Group operated 437 salons. The majority of
these were in-store concessions, but there were 146 franchised units.
The two groups into which complaint was made by the Crown related to
loans, first of all, from banks in respect of the franchisees, which were
referred to in the course of the case as the 'B loans', and secondly, from a
French bank called Valbonne, referred to as the 'V loans'. Without going into
the details, the nub of the prosecution case was that the franchisees were
expected to put down a deposit before obtaining loans. In many instances the
franchisees were individuals who had not the financial ability to put down such
deposits, so what happened was that Alan Paul gave them the money, which was
put into an account, and then immediately afterwards, when the loan had been
obtained, there was a requirement that that money should be paid back. The
result was that the lending institutions thought that the franchisees (as they
would have been expected to) were paying a proportion of the deposit, whereas
they were getting 100% of it. The financial implications of this were what
resulted in the conspiracy offence referred to in count 1, to which this
applicant was not a party.
The basis upon which this applicant presented his plea and was dealt with
by the judge was that he was aware of what was going on -- and indeed as
managing director he must have been -- and that he acquiesced in it. It is
clear to us that, in his capacity as managing director, he was in a position to
have put a stop to this had he wished to do so. In our judgment it is because
of his position as managing director that the judge took a particularly dim
view of his involvement.
The one criticism which has caused us some anxiety in this case is the
difference between the sentences imposed respectively on Mr Moss, Mr Muse and
this applicant in relation to their involvement. Again, without the necessity
of going into the details, it is clear to us that Mr Moss and Mr Muse were
actively involved on a continuing basis, whereas this applicant, as we have
said, was acquiescing in what went on and, at the time Mr Muse was appointed
the franchisee director, dropped out of the picture. In relation in particular
to the V loans to which we have referred, there is no suggestion that he was a
party to the raising of sham loans, which undoubtedly did take place. It was
accepted that he thought that all the loans were genuine and what he did in
relation to those -- to adopt the phrase used by Mr Roddick -- was to "jump the
gun".
Mr Moss, as we have said, was sentenced to three years. That obviously
took into account the fact that he was the chairman and that he was involved
not only in count 2 but also in count 1, and he was in that capacity in a
superior position to the applicant. Because of that he received a sentence of
not quite 50% more than did the applicant. Mr Muse, who was in a less
responsible position than either Mr Moss or the applicant, received a sentence
which was only three months more than the applicant. It is on the basis of
those differences, nine months in the one case and three months in the other,
that Mr Roddick eloquently puts forward his suggestion that the judge, although
stating that he was taking all the matters into account which he did, and
indeed Mr Roddick goes further in one instance by saying that he omitted to
mention matters which had been urged upon him in mitigation, in particular the
genuine effort that the applicant had made to rebuild his life in the
substantial period that elapsed between Alan Paul going under and the
commencement of the prosecution. That was not alluded to and Mr Roddick
invites us to say that, because it was not alluded to and because the judge
had dealt in such great detail with all the matters that had been put before
him, therefore he cannot have had it in mind.
We go back to what we said earlier: this very experienced judge, who had
lived with this case for a very long time, both before and during the trial, we
do not think can be criticised by pointing at individual parts of his
sentencing remarks.
These sort of cases involving financial fraud, where there are a number of
co-conspirators, are notoriously difficult when it comes to striking a balance
between the respective roles of the various co-conspirators. We do not think
that, in the context of the sentences that were imposed in this case, we would
be justified in criticising a judge who, as we have said, knew every nook and
cranny of this case and gave a very careful sentence. In those circumstances
we consider that the sentence imposed on this applicant should not be
interfered with. Accordingly, this application for leave to appeal is refused.
© 1997 Crown Copyright
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWCA/Crim/1997/1705.html