PF v Aaron Charles Gemmell, Conor Marshall Clark and Colin Gibb Clark

At Dumfries Sheriff Court on 6 March 2018 Sheriff Brian Mohan sentenced Aaron Gemmell to two years' imprisonment after he pled guilty to housebreaking and a breach of bail; sentenced Conor Clark to two years' imprisonment after he pled guilty to housebreaking; and sentenced Colin Clark to three years and four months' imprisonment after he was found guilty of housebreaking. The three are also subject to confiscation and compensation orders under the Proceeds of Crime Act 2002.

On sentencing, Sheriff Mohan made the following statement in court:

"This was a pre-planned and targeted break-in, committed against a vulnerable victim. He was elderly and, at the time of the housebreaking, was living with a relative while he recovered from a serious illness. He was devastated by the break-in and theft from his home.

"This was a high value crime: the proceeds were more than £200,000 in cash and other valuables worth over £20,000. The police investigation into this matter was meticulous, methodical and thorough. As a result of that, and the detailed discussions which have taken place with the Crown, significant sums have been recovered. However, at least £87,856 remains unaccounted for.

"Aaron Gemmell, you are 23 years old. You pled guilty at a First Diet to this charge and to a breach of your bail curfew. Your social work report indicates that you have a good work ethic. You have limited previous convictions, with none of a similar nature.

"It appears you were not a controlling influence in this crime, but the naivety suggested in the report does not match the details of the offence to which you have pled guilty, nor the detailed discussions you had with your co-accused before and after the break-in. You were not just the unknowing driver of the car used to travel to and from the locus. The circumstances of this offence indicate that a custodial sentence is the only appropriate disposal.

"Conor Clark, you are now 24 years old. Your social work report reveals what may be called a lack of consequential thinking. In your case that means that you appear to think that you can behave as you like and should not have to face the consequences. You too have a limited record and appear to have a good work ethic. But like your co-accused you were heavily involved in this pre-planned crime. Like your co-accused Aaron Gemmell the evidence indicated that you were either flaunting stolen items or spending the stolen money very soon after the break-in.

"As with your co-accused I consider that a custodial sentence is the only appropriate disposal.

"Both you and Aaron Gemmell will face the same penalty. The starting point for each of you is a sentence of 32 months. This will be reduced by one quarter to reflect your pleas at the First Diet stage. This leaves a sentence of twenty four months on charge 1 for each of you, backdated to 6 February 2018 when you were remanded in custody.

"Aaron Gemmell, on the charge of breaching your bail curfew you will serve a period of four months, to run concurrently with the sentence imposed on the housebreaking charge.

"Colin Clark, you are the father of Conor Clark and, at 51, you are much older than your two co-accused. You were found guilty of the housebreaking after a six-day trial before a jury.

"You have a significant record because it includes two convictions at solemn level for handling stolen goods: in 2001 you received a custodial sentence, and a further conviction was recorded in 2015.

"Your defence before the jury was that it was a coincidence that you were working round the corner from the victim’s home on the day before the break-in, a coincidence that you were in such regular contact with your co-accused Aaron Gemmell before and after the break-in took place, and a coincidence that you left your home with your son Conor at 1.20am and returned after 3am with him and Aaron Gemmell to your home, with them both admitting to having committed the housebreaking between those times.

"What the evidence did strongly indicate was that you were the controlling influence over your co-accused. When you left your house on the night of the offence after 1am you walked away from the main road when in front of CCTV cameras thereby giving the misleading impression that you had not left your property. You took other precautions to avoid detection, but left the two younger men to be traced. And the sequence of calls the next day by Aaron Gemmell to a car dealer, then to you, and then back to the dealer before he bought a van using some of the stolen cash gave a clear indication that he was answerable to you.

"Given all of the circumstances, including your previous record, the starting point for a custodial sentence for you is a period of 40 months. No reduction is due on that, but the sentence will be backdated to 18 September 2017, when you began your remand in this matter.

"So far as the Crown’s proceeds of crime motions are concerned, it is clear that much work has taken place between the Procurator Fiscal Depute and the defence solicitors to reach agreement to enable available funds to be repaid to the victim.

"I have taken account of that in the sentences imposed. As well as repayment to him of the stolen cash recovered from different sources, confiscation and compensation orders will be made under the Proceeds of Crime Act 2002. These will reflect what has been agreed in the joint minutes presented today.

"For each of you the benefit figure will be recorded as £200,600, and the recoverable amount as £128,600. For Aaron Gemmell the available amount and confiscation order will be £2,560. For Conor Clark the sum will be £26,236. For Colin Clark the amount will be £9,448. All of the sums realised from those orders will be payable to the victim as compensation. The Crown may raise proceedings for further recovery if and when circumstances permit."

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