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State v Rao [2010] FJHC 552; HAA063.2010 (2 December 2010)

IN THE HIGH COURT OF FIJI
AT SUVA

APPELLATE JURISDICTION

HIGH COURT CRIMINAL APPEAL CASE NO: HAA 063 OF 2010
CRIMINAL CASE NO.: 990 OF 2007

BETWEEN:

STATE
APPELLANT

AND:

MUNESHWAR SHALENDRA RAO
RESPONDENT

Counsel: Appellant - Mr Waqavonovono
Respondent - Ms. Lata, A

Date of Hearing: 18/10/2010, 29/11/2010.
Date of Judgment: 2nd December, 2010.

JUDGMENT

[1] This is an appeal by the Director of Public Prosecutions against an order discharging the Respondent without conviction by the Magistrates Court Suva, for 5 counts of Larceny by servant.

[2] The Respondent pleaded not guilty to charges on 4/6/2007. After 18 adjournments on 12th November 2009, on a hearing date Respondent pleaded guilty to all 5 counts and the learned Magistrate absolutely discharged the Respondent pursuant Section 44 of the Penal Code Cap 17.

[3] State appealed on the said discharge on the ground that;

The learned Magistrate erred in Law and in fact when she imposed an absolute discharge sentence on the Respondent.

[4] I considered the submissions made by Counsel for both parties at the appeal hearing.

[5] Section 44 of the Penal Code, states;

Absolute and conditional discharge

44(1) Where a court by or before which a person is found guilty of an offence, not being an offence for which a fixed sentence is prescribed by law, is of opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order under the Probation of Offenders Act is not appropriate, the court may, with or without proceeding to conviction, make an order discharging him absolutely, or, if the court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding twelve months from the date of the order, and subject to such other conditions, if any, including the payment of costs or compensation, or the restitution of goods or the payment of money in lieu of goods, as may be specified in such order.

[6] It is submitted on behalf of the Appellant that the nature of the offending warrants a custodial sentence or a suspended sentence in this case.

[7] The contention of the Respondent is that as the Respondent pleaded guilty to the offence and as restitution has been made absolute discharge was the appropriate order that should have been made by the learned Magistrate.

[8] In the case of Kumar v State [2005] FJHC69; HAM 004J.2005S Justice Shameem said;

"Issue is whether the circumstances in this case justify the setting aside of the conviction, and imposing instead an absolute discharge. Absolute discharges are reserved for the most exceptional of cases, where the appellant was guilty of only a technical breach of the law, or where his conduct was not morally culpable. One example might be where the offender having taken legal advice, was erroneously told that he could sell goods, or build a garage without a licence or planning permission. In fact, most cases of offenders acting for instance, under an honest mistake of law, would not be prosecuted at all. Thus the absolute discharge is an exceptional sentence, reserved for those who deserve no punishment at all, for breaking the law".

[9] In case of Land Transport Authority v Neneboto (2002) FJHC 184 HAA 0087J.2002S (22 November 2002) the court said;

"The absolute discharges are appropriate only in a limited number of circumstances, such as where no moral blame attaches (R v O'Toole (1971) 55 Cr.App.R.206) or where a mere technical breach of the law has occurred, perhaps by imprudence without dishonesty (R vKavanagh (unreported) May 16th 1972CA)".

[10] I bear in mind that the Respondent had made the restitution in full and that he pleaded guilty. However, this case cannot be considered as one of the most exceptional cases, where the Respondent was guilty of only a technical breach of the Law. This is a calculated offence where the Respondent has stolen the money when he was working as an employee of the complainant company.

[11] Therefore the learned Magistrate has erred in Law and in principle in absolutely discharging the Respondent.

[12] The offence of Larceny by Servant carries a maximum sentence of 14 years imprisonment.

[13] On breach of trust cases, in John Barrick (1985) 81 Cr App. R.78 the court said that it was dangerous to generalise where the circumstances of the offender and the offence may vary so widely from case to case.

The court further said;

"In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small....."

[14] In State v Prasad (2003) FJHC 320; HAC 0009T.2002S (30 October 2003) where the accused pleaded guilty and paid the stolen money back to the employer, Justice Gates (as he was then), sentenced the accused to 2 years imprisonment suspended for 3 years.

[15] In case of State v Raymond Roberts (2004) FJHC 51; HAA 0053J.2003S where the accused pleaded guilty to four counts of larceny by servant and repaid the money, was sentenced to 18 months imprisonment suspended for 3 years.

[16] Bearing in mind the sentences passed in similar cases and considering that the accused pleaded guilty, made restitution in full, and that he is a 1st offender I proceed to convict the accused and sentence him to 18 months imprisonment suspended for 3 years.

[17] Hence appeal is allowed.

Priyantha Fernando
JUDGE

At Suva
2nd December, 2010.