IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 28 OF 2000
(Suva Magistrate’s Court Crim. Case No. 1865 of 1999)

Between:

GERALD NEELAMKANT PANNIKER s/o Edward George Panniker
Appellant

And

STATE
Respondent

Mr. Kelemedi Bulewa for the Appellant
Mr. Aiyaz Sayed-Khaiyum for the Respondent

JUDGMENT

This is the appellant’s appeal against the sentence of 3½ years imposed on him by the Magistrate’s Court, Suva on 9 March 2000.

The appellant was charged for the offence of larceny by servant contrary to s274 (a) (i) of the Penal Code Cap. 17.

The Particulars of Offence are that between September 1998 and May 1999 the appellant being an employee of Burns Philp (South Sea) Company Limited stole from his employer the sum of $49,348.82.

The Grounds of Appeal are as follows:

a)	That the learned Magistrate’s refusal to give further time to the Appellant to organise his case before hearing was unreasonable and unfair thereby giving rise to a miscarriage of justice.

b)	That the learned Magistrate erred in law in applying the principles of sentencing to the Appellant’s case by imposing a maximum term of imprisonment and thereafter proceeding to reduce term through his consideration of mitigating factors. The Magistrate’s refusal to grant the Appellant an adjournment within which firm arrangement can be made for the reimbursement or compensation for the funds allegedly stolen deprived the Appellant the opportunity to put forward a fact of payment as a strong mitigating factor which would have influenced a reasonable tribunal to consider and impose a non-immediate custodial sentence.

First ground of appeal

Prior to Mr. Bulewa entering the scene on 9 March 2000 a few solicitors had already represented the appellant in this case. The date of hearing i.e. 9 March 2000 was set on 14 February 2000.

Going back into the history of this case, the appellant first appeared on the charge on 2 August 1999 when he pleaded not guilty. The charge was again read to him on 30.8.99 and he still maintained his plea of not guilty. Then on 29 November 1999 counsel for appellant sought an adjournment and hearing date was fixed for 9 March 2000.

It was on the day of the hearing that Mr. Bulewa sought an adjournment for two months without giving any reason for it.

Adjournment was refused and the case proceeded to hearing when the appellant changed his plea to one of guilty. Mr. Bulewa then spoke in mitigation.

Mr. Bulewa complains now in the appeal in this first ground of appeal, that there was miscarriage of justice when the learned Magistrate failed to grant an adjournment.

I do not find any merit in Mr. Bulewa’s argument on this ground.

According to record, to start off with Mr. Bulewa did not give reason for asking for adjournment.

From the time the first plea was taken until 9 March 2000 nothing was paid or arrangement made to pay. Now, day before the appeal hearing i.e. 22 March the sum of $10,000 was paid to Queensland Insurance (Fiji) Ltd by one Bal Narayan towards the sum involved whilst the appellant’s brother is making arrangement to pay the balance by instalments.

In the final result the position is that only $10,000 has been paid leaving a balance of about $40,000.

The question now is whether the learned Magistrate was obliged to adjourn. The answer is in the negative. The hearing date was given and on the facts of this case one can safely say that the Court does not sit for the convenience of counsel but for the efficient administration of justice (vide Chief Registrar’s Circular No. 1 of 1972). There it is stated, inter alia:

In civil cases, or in the case of criminal cases when a plea of not guilty has been entered, a hearing date should be assigned which so far as possible is mutually convenient to Counsel, the parties and to the Court. The Court will co-operate with counsel and attempt to meet their convenience at this stage, always bearing in mind that the Court does not sit for the convenience of counsel but for the efficient administration of justice.

The Circular further states, and it should be borne in mind that:

Once the date of hearing has been assigned it is the duty of counsel who is on the record as appearing for a party to ensure that his client is adequately represented on the hearing either by himself or another counsel acceptable to his client, and it is only in exceptional circumstances that an adjournment will be granted once the hearing date has been fixed.

The argument put forward by Mr. Bulewa to the effect that the appellant should have been allowed to find the money so as to pay to make restitution by granting him an adjournment has not received favour with the Courts. By allowing that practice the Court would look like a ‘money-collecting agency’ and that the Court is trying to strike a bargain with the accused.

In this regard the Chief Magistrate’s Circular Memorandum No. 5 of 1976 (dated 21.9.76) under the caption Postponement of Sentence is pertinent to the issue before me. It is so important in my view that I quote it in full. It states:

In a recent case a Magistrate postponed sentence for three months in respect of an accused who had pleaded guilty and been convicted of larceny by servant in order to give the accused an opportunity to make restitution.

2	I would point out for the future guidance of Magistrates that the English Court of Criminal appeal has held that this is a wrong course to adopt, and that the Supreme Court of Fiji is of the same view.

3.	In R. v. West (1959) 43 Cr. App. R. 109 the Lord Chief Justice held that it was wrong to postpone sentence in order to give a person an opportunity of fulfilling a promise to make a restitution, stating, "If a prisoner is thought fit to be put on probation, let him be put on probation. If it is not a matter of probation let him be sentenced there and then, but it is highly objectionable to postpone sentence, and at the same time to turn the court into a money-collecting agency."

The same approach was adopted in R. v. Collins (1969) 53 Cr.App. R. 385 in which a lower court had released a man on bail after conviction with a view to seeing whether he would assist the police to recover stolen property. Lord Justice Salmon stated "This is not a course which it is appropriate for a Court to adopt although this is a different case from West (1959) 43 Cr. App. R. 109, we feel that it is inappropriate to let a man out on bail who has been convicted of a crime of this sort to see if he will help the police to recover the stolen property. It leads him to think that if he complies with what the Court has suggested he will be put on probation; otherwise he will go to prison; and it is undesirable that an implicit bargain of the sort should be made with the accused."

Second ground of appeal

In the first half of this ground Mr. Bulewa attacked the manner in which the learned Magistrate arrived at the sentence which he imposed.

The second half of this ground refusing adjournment and not allowing the appellant to make arrangement to reimburse does not arise at all as this fact was not brought to the attention of the Magistrate for him to consider. However, I have already dealt with this aspect of the matter at some length under the first ground hereabove and I do not wish to reiterate.

As I see it the issue before me is firstly (a) whether the sentence is harsh and wrong in principle and secondly (b) whether on appeal the fact of payment of $10,000 made on the eve of the appeal hearing (in part) and arrangement being made to pay the balance could be taken into account should affect the sentence.

I shall now deal with the first issue.

This was serious offence which carried a sentence of 14 years. There is no doubt that an immediate custodial sentence was warranted with no restitution having been made before sentence as the learned Magistrate has said. The appellant had more than enough time to make restitution if he was minded to do so before the hearing on 9 March. Mr. Bulewa for the appellant has, apart from arguing that the sentence should be brought within the tariff for this type of offence (after referring to a number of Fiji cases), submitted that court consider whether suspended sentence could be given instead in all the circumstances of this case.

For breach of trust cases, which this is, guidelines on the proper level of sentence to be imposed are set out in the case of JOHN BARRICK (1985) 81 Cr. App. R.78. There the Lord Chief Justice at page 81 said:
 
"The type of case with which we are concerned is where a person in a position of trust, for example, an accountant, solicitor, bank employee or postman, has used that privileged and trusted position to defraud his partners or clients or employers or the general public of sizeable sums of money. He will usually, as in this case, be a person of hitherto impeccable character. It is practically certain, again as in this case, that he will never offend again and, in the nature of things, he will never again in his life be able to secure similar employment with all that that means in the shape of disgrace for himself and hardship for himself and also his family."

And further at page 81-82 he said:

"In general a term of immediate imprisonment is inevitable, save in every exceptional circumstances or where the amount of money obtained is small. Despite the great punishment that offenders of this sort bring upon themselves, the Court should nevertheless pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence. The sum involved is obviously not the only factor to be considered, but it may in many cases provide a useful guide".

Matters which could be taken into consideration in determining what the proper level of sentence should be have been stated in BARRICK (supra) at p.82 as follows:

(i)	the quality and degree of trust reposed in the offender including his rank;

(ii)	the period over which the fraud or the thefts have been perpetrated; 

(iii)	the use to which the money or property dishonestly taken was put;

(iv)	the effect upon the victim;

(v)	the impact of the offences on the public and public confidence;

(vi)	the effect on fellow-employees or partners;

(vii)	the effect on the offender himself;

(viii)	his own history;

(ix)	those matters of mitigation special to himself such as illness, being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.

In Barrick are set out the range of sentences for contested cases. It is stated that in a case involving £10,000 and £50,000 a term of about two to three years is merited. But it says that where a plea of guilty is entered the court should give the appropriate discount. It says that "it will not usually be appropriate in cases of serious breach of trust to suspend any part of the sentence.

The Court was referred to the Fiji Court of Appeal case of VISHWAJIT PRASAD v THE STATE (Crim. App. No. 23 of 1993) where the sentence was reduced from 4 years to 2½ years. In that case almost half the amount involved was paid before the hearing. The Court made the following observation which I consider apt:

"As no two cases are exactly alike in every respect and as each case should be decided on its own particular facts and circumstances what we need to seek is a consistency of approach rather than uniformity of sentence. On the material before us it would appear that a 4-year sentence is normally reserved for the worst type of obtaining monies by deception cases. Although we have noted the aggravating features of the case before us we have also taken into account the mitigating factors and are of the view that this case does not fall in the ‘worst case’. Consequently, we have come to the conclusion that a sentence of 4 years imprisonment was on the excessive side. A sentence of 2½ years imprisonment would have been the more appropriate punishment". 

In State v Helen Broadbridge (Crim. Case No. 31 of 1997) which was a larceny by servant case involving $24,147.55 Townsley J passed a sentence of 2½ years on a belated plea of guilty.

Bearing in mind the sentences passed for this type of offence, I consider that this sentence is slightly on the high side. It appears that the only amount which the appellant would have been able to pay is $10,000. Assuming that this amount had been paid then the Court would reduce the sentence slightly for the learned Magistrate does say when sentencing that nothing has been paid.

Since this was a serious breach of trust the appellant cannot expect a suspension of the sentence. For the reason given hereabove the sentence is slightly harsh and excessive and ought to be reduced.

In my view the fact that now, after conviction and sentence, some part of the money involved was paid a day before the appeal cannot be now taken into account to affect the sentence previously passed (subject to my comments on the sentence as stated hereabove) just as restitution made under the threat of the Court’s sentence cannot be taken into account.

It would indeed be creating a dangerous precedent if after sentence the accused were to come to the Court when sentenced to say that he has made full restitution or he is making arrangement to pay. 

It is not for an appellate Court to entertain such an application.

The appeal is allowed.

The sentence of 3½ years is set aside and substituted by one of 3 years.

D. Pathik
Judge

At Suva
15 May 2000