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State v Deo [2005] FJHC 64; HAA0008J.2005S (23 March 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0008 of 2005S

Between:

THE STATE
Appellant

And:

JOCELYN DEO
f/n Bas Deo
Respondent

Counsel: Ms N. Tikoisuva for State
Mr. M. Raza for Respondent

Hearing: 18th March 2005
Judgment: 23rd March 2005

JUDGMENT

The Director of Public Prosecutions appeals against a suspended term of imprisonment, imposed on the Respondent for a total of 15 counts of offences of fraud.

The Appellant, who is 26 years old, was employed by the Unit Trust of Fiji as an Accounts Officer. Her duties included the writing of cheques, making of payments, and the verifying of all payments. She was also responsible for banking. The Unit Trust banked with the former Bank of Hawaii in Suva. There were two signatories to the account.

Between July 2001 and December 2001, the Appellant, she either made false cheques with the signatures of the signatories, keeping the false amount for herself, or she made false cheques and forged the signatures of the authorised signatories. To balance the accounts, she made false entries in the cash payment journal of the Unit Trust by showing fictitious payment. She kept the proceeds of the false withdrawals. They totalled $15,128.00.

She was eventually exposed and the matter was reported to the police. She denied the allegations, and she was charged on the 30th of August 2001. For some reason, both court record and court files are silent on what occurred between the 30th of August 2001 and February 2004. The first page of the court record commences on the 3rd of February 2004. However the record indicates that she maintained her not guilty pleas on all counts, both to the original set of charges, and to the substituted 15 counts. There were many mention dates thereafter. On the 19th of July 2004, counsel for the Appellant indicated that there would be a change of plea.

On the 25th of August 2004, she pleaded guilty on all counts, and the matter was adjourned for the outlining of facts. On the 23rd of September 2004, the record reads:

“cheque for $15,280.00 Mr. Raza’s trust account.

Court: Disposal 06/10/2004 at 2.30pm.”

The facts were outlined on the 6th of October 2004, counsel mitigated, saying that the Appellant was now 28 years old, single and living with her family. She had repaid the money stolen. It appears that she may have committed the offences because of a problem in her relationship with her fiancée who had migrated. She was dismissed from her employment and expressed remorse.

The learned Magistrate delivered his sentencing remarks on the 29th of November 2004. He referred to the decisions of the High Court in State v. Mahendra Prasad Crim. App. HAC 009/2005, and State v. Raymond Roberts Crim. App. HAA 053 of 2003S, saying that a suspended sentence in fraud cases was not necessarily wrong in principle. He referred to the fact that full restitution had been effected and he sentenced the Appellant to 2 years imprisonment on each count, to be served concurrently with each other, and to be suspended for 3 years.

The State now appeals against this total sentence, upon the following grounds:

(a) That the sentence is wrong in principle.

(b) That the sentence was manifestly lenient given the entire circumstances of the case.

It is now settled that the tariff for fraud and breach of financial trust cases ranges from 18 months to 3 years imprisonment. Where the accused has expressed remorse and has manifested such remorse in an early earnest attempt to compensate the victim for the losses caused by the theft, a suspended sentence can be imposed. In Mahendra Prasad, not only did the accused sell his assets to pay his employers back, his employers forgave him and tried to persuade the DPP to drop the charges. When this did not succeed, representatives of his employers came to court to give evidence on the accused’s behalf. In Raymond Roberts the accused had made attempts to restore the money stolen to his employers, even before the theft was discovered. In State v. Sanjay Shankar Sharma, I imposed a suspended sentence on a 19 year old University student, who had confessed to the offences as soon as he was apprehended by the police, who told the police immediately that he wanted to restore the stolen money to his employers and who never spent a penny of that money before he was apprehended. Clearly in those circumstances suspended sentences were not wrong in principle, because the offender had not effected restitution merely to buy himself out of a suspended sentence. The issue is not just restitution. The issue is true and sincere remorse, an early guilty plea and confession, and restitution to the victim as evidence of such remorse and apology.

In this case, I am not convinced that there was any such remorse, expressed at the earliest opportunity. The Respondent never admitted her guilt to the police. She benefitted from the fraud, and did not effect restitution until more than 3 years after the event. In court she maintained her not guilty plea for those 3 years. The payment into court of the money stolen, suggests not remorse, but an attempt to avoid a custodial sentence. In the circumstances of this case, the starting point on each count, should have been 2 years imprisonment, to reflect the gross breach of trust. The sentence should have been increased to 3 years imprisonment for the premeditation, the length of time over which the fraud was perpetrated and the amount of money stolen. It should have been scaled down for her youth, good character, (late) restitution, the loss of her job, and the 5 months of her suspended term already served, to 18 months imprisonment. There are no exceptional circumstances justifying a suspension.

This appeal must therefore be allowed. The suspended terms of imprisonment are quashed and substituted with an 18 month term of imprisonment on each count, to be served concurrently with each other. It is to run from today.

Nazhat Shameem
JUDGE

At Suva
23rd March 2005