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Nandini v State [2011] FJHC 221; Criminal Appeal 001 of 2011 (1 April 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 001 OF 2011

BETWEEN

1. SHWETA NANDINI
2. RONEEL VIKASH DAYAL
Appellants

AND:

STATE
Respondent

Mr. N. Nand for the Appellants
Mr. M. Korovou for the State

Date of Hearing : 01 April 2011
Date of Judgment: 21 April 2011

JUDGMENT

[1] On the 19th July 2010, in the Magistrates Court at Lautoka, these appellants entered a plea of guilty to 42 various counts of forgery, uttering forged documents and obtaining money on forged documents. They were sentenced on the 11th November 2010. The first appellant was sentenced to 42 concurrent terms of a total of 22 months' imprisonment, and the second appellant to 28 concurrent terms of 18 months' imprisonment. It is against these sentences that they now appeal.

[2] The first appellant worked for "Vinod Industries" Limited in 2007 as a clerk and as an administrator. While thus employed and without lawful authority she raised and forged 14 Westpac Bank cheques by forging the signature of Vinod Prasad, the Director of the company. She then colluded with the second appellant, her "de facto" partner in uttering the cheques and obtaining monies totaling $24,600.00.

[3] The appellants have filed 12 grounds of appeal by their Counsel, some of which are repetitive. These grounds can be summarized in this way:

(i) The Magistrate erred in selecting the sentencing starting point.
(ii) Not enough credit was given for their early pleas of guilty.
(iii) Not enough credit was given for previous good character.
(iv) No appropriate credit was afforded to the first accused for restitution made.
(v) The Magistrate erred in finding that the amount defrauded was substantial.
(vi) In the circumstances the sentences were harsh and excessive.

[4] Mr. Nand has filed detailed written submissions in support of these grounds, submissions which he expanded on in oral argument.

[5] In submitting that the starting point was too high, the appellants rely on the judgment of Shameem J. in Sanjay Shankar Sharma – HAC 3 of 2005. In the Sharma case, the accused faced similar charges and had defrauded his employer of $619,908 over a period of four months. Shameem J. took a starting point of two years. Mr. Nand submits that two years for $619,000 is so disparate from 22 months for this case of $24,000, that it is unfair. He submits that the Courts should be seen to be consistent.

[6] Comparing amounts defrauded with starting points of sentence is an extremely futile exercise and would seek to drag the Courts into the market place. Just as easily I can point Mr. Nand to my decision in Suguturaga – HAC 43 of 2009 where I took a starting point of three years for similar offences and the amount defrauded was approximately $5,000 being the value of six brush cutters. Each particular case turns on its own facts and there will never be absolute consistency in this regard.

[7] The leading cases of Hu Jun Yun – HAA 24 of 2005, and State v Kesi – HAC 24 of 2004, set the tariffs for forgery at between 18 months and three years. Unlike England there is no suggested tariff bands in Fiji equating to value of the fraud. There is no reason whatsoever why the Magistrate could not have adopted the starting points he did.

[8] This Court very recently said in Anand Kumar Prasad and Others – HAC 024 of 2010, that the tariff for forgery is outdated and devalued and an appropriate tariff band should now be between three and six years.

[9] The ground of appeal on excessive starting point is dismissed.

[10] These two appellants first appeared in the Magistrates Court on the 14th October 2009. The charges were read – they understood the charges, but no plea was taken. The accused indicated they would apply for Legal Aid. During several appearances they sought time to await legal aid determination until the 19th July 2010 when they were finally awarded Legal Aid and were represented by Legal Aid Counsel. On this day the two entered their pleas of guilty. As Mr. Nand quite rightly points out, although it was nine months after their first appearance neither of the accused ever pleaded not guilty. An accused person has every right to seek legal advice on the charges he faces before being put to his plea and in this case that legal advice led to the plea of guilty. To all intents and purposes the plea can be taken to be at the earliest opportunity, and credit for that should have been afforded the two accused.

[11] This ground of appeal succeeds.

[12] The first appellant complains that she was afforded no credit for her previous good character. The learned Magistrate accepted that she had no previous convictions but that because it was a breach of trust case, she would not receive credit for the clear record.

[13] Mr. Nand relies on the Sentencing and Penalties Decree 2009 by section 4(2)(f) that provides that a court must have regard to the offender's previous character. He says that that provision makes it mandatory for a court to give credit for good character. The section does not make that stipulation at all. "Having regard to" does not mean "must act on": a Court will consider previous good character and then will decide if it will act upon it or not. The clear weight of authority that says good character will not be relevant in breach of trust cases is compelling.

In Bole – HAC 38 of 2005, Shameem J. said:

"In breach of trust cases, comparably less weight is put on good character, because only people of good character are given positions of trust and responsibility. It is the breach of trust which is the harm done in these offences."

[14] This is a clear statement of good sentencing practice and I endorse it.

[15] The appeal on this ground fails.

[16] The second appellant complains that credit of one month for his clear record was insufficient. Apart from breach of trust cases, good character is of course taken into consideration, but there are no straitjackets of certain periods of time. Obviously the time allotted in credit for good character will be proportionate to the particular starting point chosen. On an 19 month sentence, discount of one month for good character is not wholly disproportionate.

[17] This ground of appeal fails.

[18] The two appellants submit that the Magistrate erred by holding that the restitution offered by the first appellant was not truly remorseful, but more of an attempt to buy her way out of prison. On the 19th July 2010, the date on which these two appellants entered their pleas of guilty, their Legal Aid Counsel told the Court that restitution had been made to the victim and this fact was later confirmed by the prosecution.

[19] There appears to be no evidence of when the restitution was in fact made, so it is difficult to understand why the Magistrate would say it was not an early restitution showing remorse. On the day of the pleas, the Court was told that restitution had been effected. One cannot imagine a date earlier than this that the Court could have properly learned of the restitution.

[20] This ground of appeal succeeds.

[21] The Magistrate said that the amount defrauded was "substantial". Naturally there is no gauge of saying whether $24,000 is substantial or not. To a poor pensioner it would be very substantial; to a large business concern such as Vinod Industries Limited is probably petty cash. Judicial Officers both in the Magistracy and the High Court see figures of fraud far in excess of this sum. In the absence of any reasoning from the Magistrate to say why he thought it was substantial, it is the finding of this Court that $24,000 is not "substantial" from the point of view of a cheque forgerer.

[22] This ground of appeal succeeds.

[23] In taking the sentence in the round, I propose to quash the sentence passed below pursuant to section 256(3) of the Criminal Procedure Decree and sentence these two appellants anew.

[24] For the first appellant, I take the same starting point as did the Magistrate (a starting point which is perfectly proper), that is 22 months for each forgery and 19 months for each count of uttering and obtaining money on forged documents. For the aggravating features of breach of trust and a systematic fraud over 3 months I would add the 4 months that the Magistrate added, bringing the sentence to 26 months for the forgery and 23 months for the ancillary offences. A discount of nine months on each count is allowed for the very early plea of guilty resulting in a sentence of 17 months for the forgeries and 14 months for the uttering and obtaining offences.

[25] For the second appellant I take the Magistrate's starting point of nineteen months for the uttering and obtaining money on forged documents. The second appellant does not fall within the breach of trust category and he will therefore not be subject to any aggravating features increase. It nevertheless has the benefit of an early guilty plea for which he will have credit of six months along with credit for his good character of three months which brings his sentence down to ten months for each conviction to be served concurrently.

[26] Mr. Nand submits that these sentences should be suspended given the young ages of the appellants and the restitution and clear admission of guilt.

[27] The couple live in a de facto relationship with two young children. Neither have offended before, they have repaid the total amount stolen. They expressed sincere remorse and the sum of money stolen is not large. The sentences on both appellants will be suspended for a period of two years.

[29] The effect of a suspended sentence is explained.

Paul K. Madigan
JUDGE
At Lautoka
21 April 2011