IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0085 of 2005S

Between:

LAGINIKORO TOKONI
Appellant

And:

THE STATE
Respondent

Hearing: 15th September 2005
Judgment: 23rd September 2005

Counsel: Appellant in person
Mr. D. Prasad for State

JUDGMENT

The Appellant appeals against his sentence of 3 years imprisonment for 20 counts of larceny by servant. His grounds of appeal are that the sentence is harsh and excessive in the light of the fact that he is a first offender, and that he pleaded guilty. He says that he should have been given a non-custodial sentence.

The charges were that between November 1995 and April 1999, the Appellant, an employee of the ANZ Bank, stole a total of $24,168.30 from the Bank, by depositing money into his wife’s account from various bank commissions and charges, which would ordinarily have constituted revenue for the Bank. The money was never recovered.

The case was first called on the 13th of January 2000. He pleaded not guilty on the 2nd of March 2000. There were many adjournments, due to the non-appearance of the Appellant or his counsel. Finally, he pleaded guilty on the 28th of June 2004. The facts were that the Appellant on various dates from 1995 to 1999 deposited sums of money due to the ANZ Bank into the account of his wife, Kaufuti Tamani. He later withdrew this money and used it for his own use. He admitted these facts. He was a first offender. He asked for time to mitigate. On the 19th of July he asked for time to repay the money he stole from the bank. Sentence was adjourned for this purpose. There were several adjournments until the 27th of May 2005 when the learned Magistrate refused to give him any more time. Sentence was delivered. It appears that counsel for the Legal Aid Commission had submitted written mitigation. The mitigating factors were that the Appellant was 35 years old, married with three children and pursuing a degree in Accounting at the Central Queensland University. He was receiving a business dealing in yaqona and seafood.

The learned Magistrate said that the tariff for fraud offences was 15 months to 2½ years. He picked 2 years imprisonment as his starting point and gave 12 months discount for the mitigation. He then scaled the sentence up by 12 months for the large amount stolen, and another 12 months for the failure to effect restitution. He sentenced the Appellant to 3 years imprisonment on each count to be served concurrently with each other.

The State opposed the appeal saying that this was a bad case of breach of trust and there had been delay in the hearing of the case because of the Appellant’s own default.

In John Barrick (1985) 81 Cr. App. R. 78, the Lord Chief Justice said that in breach of trust cases, it went without saying that the accused was of impeccable character. People who hold positions of trust and responsibility in companies are usually given those positions because of their impeccable character. The court further listed a number of factors, which determined the proper sentence to be imposed in each case. They included the quality and degree of trust reposed in the offender, the period over which the frauds were perpetrated, the use to which the money was put and the effect of the offending on the public.

The tariff for such offences in Fiji is 15 months to 3 years. Restitution can only be a mitigating factor if it reflects a sincere expression of remorse.

In this case, the learned Magistrate’s choice of 2 years imprisonment was irreproachable given the substantial sum stolen. He rightly scaled 12 months down for the mitigation. The plea of guilty was belated and as I have said, the Appellant’s good character was part and parcel of the gross breach of trust. However, he was entitled to a discount for his sincere attempts to make a life for himself running a business and for his family circumstances.

The aggravating factors were the gross breach of trust by a bank employee, the loss of public confidence in a bank which depends, for its survival, on public trust and the fraud perpetrated over a 5 year period. These factors justified a scaling-up of 12 months imprisonment. I consider a 2 year scaling-up to be excessive. The proper sentence in this case was therefore 2 years imprisonment. There are no compelling circumstances to justify the suspension of this sentence.

This appeal is allowed to the extent that sentence is reduced to 2 years imprisonment.

Nazhat Shameem
Judge

At Suva
23rd September 2005