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Naqasima v State - Judgment [2012] FJHC 1159; HAA07.2012 (13 June 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No. HAA 007 /2012

BETWEEN:

LOSALINI TUA NAQASIMA
Appellant

AND:

THE STATE
Respondent

BEFORE : Mr. Justice P. K. Madigan

COUNSEL : Appellant in Person
Mr. A. Singh for the State

Date of Hearing : 15 March, 27 April, 15 May 2012
Date of Judgment : 13th June 2012

JUDGMENT

1. On the 22nd February 2011 in the Magistrates Court at Suva, the appellant entered a plea of guilty to one count of larceny by servant contrary to Section 274(b)(i) of the Penal Code Cap 17 and was sentenced on the 12th December 2011, to a term of imprisonment of three years. It is against this sentence that she now appeals.
   
2. The facts of the case were that the appellant was employed as a Clerical Officer and part time Cashier in the Government Supplies Department in the years 2004 and 2005. Between the 26th May 2004 and 1st December 2005 the appellant stole a total amount of $16,735.44 by altering amounts on invoices and receipts of the department.
   
3. The learned Magistrate in sentencing the appellant on her plea of guilty, correctly identified the maximum sentence being 14 years and identified the applicable tariff to be between 18 months and four years. She considered the mitigating features to be;
   
   • The plea of guilty
   • First offender and older offender
   • Expression of remorse
   • Four young children including a young baby of then 6 months
   • An offer of restitution of $1,000.
     

And the aggravating features to be

• A total of $16,735 stolen
• Breach of trust
• No recovery of stolen funds
  

4. The Magistrate then considered some of the applicable sentencing authorities for theft and fraud and concluded that an immediate term of imprisonment was inevitable. In concluding that it was a serious breach of trust she took a starting point of three years, deducted one year for the guilty plea and one further year for "the other mitigating factors" before adding a further two years for the aggravating factors, leading to a final term of three years which the Magistrate declined to suspend.
   
5. The appellant in very detailed and persuasive written and oral submissions submits that no credit was given for the fact that she was breastfeeding a baby, and that she was the sole income earner for the family. She also prays that she suffered by having to wait 5 years before she appeared in Court on the matter. She submits that she has letters of recommendation from various agencies all of which support her remorsefulness. She further submits that the renowned UK case of Barrick (1985) 91 Cr App R.78 which deals with sentencing for fraud and which the Magistrate quoted before arriving at her sentence, deals only with sentences after trial and not on a plea of guilty (the appellant's emphasis).
   
6. The State while filing written submissions, failed to come to Court on the date of the hearing to argue the appeal. I take this as a lack of interest in defending the appeal.
   
7. The learned Magistrate was quite correct in identifying the tariff for the larceny by servant under the Penal Code. After reviewing the applicable guidelines she came to the view that this was a serious breach of trust which it was. To systematically defraud the Government revenue over a period of nineteen months is very serious indeed. As the Magistrate said it was carefully planned and calculated.
   
8. Unfortunately however the Magistrate fell into the error of penalizing the appellant twice for the seriousness of the offence by taking a high starting point and then adding time for the aggravating feature of it being a serious offence. A starting point of three years subsumes the breach of trust and the effect on the taxpayer with a government generated fraud. To then add additional time for these factors is unfair.
   
9. An appellant's family circumstances are almost never of any relevance to a plea in mitigation, save in exceptional circumstances. The appellant, being the breadwinner for her four children, must have known the consequences of her fraudulent activities being detected but conducted the fraud nevertheless.
   
10. The charge states that the offences were committed between May 2004 and December 2005 but she was never brought to Court until November 2010. There is no explanation given for the delay in bringing the matter up for prosecution. Perhaps some little discount could be given to the appellant in light of this delay; however, the court record shows that on many occasions between November 2010 and December 2011 the appellant absented herself from Court, thereby delaying proceedings. The earlier delay could be said to be balanced out by the appellant delaying proceedings below. No credit should be given to her for delay.
    
11. Because of the unfairness of the double penalty referred to in paragraph (8) above, I propose to quash the sentence passed below and sentence a fresh pursuant to Section 256(3) of the Criminal Procedure Decree 2009.
    
12. I take a starting point of three years which reflects the severe breach of trust within a government department. I add to that a term of 12 months for the aggravating feature of a planned and systematic theft. I deduct 12 months for the mitigation of remorse and the letters of reference. I finally deduct one year for the plea of guilty at an early time thus saving the Court's time. The final sentence will therefore be one of two years. In the light of a total lack of restitution (but with an unrealistic offer of $200 per month from an unemployed appellant), it is not an appropriate case to even consider suspending all or part of the sentence.
    
13. The total sentence now to be served is one of two years from 12 December, 2011. She is to serve a minimum term of sixteen months' imprisonment.
    

Paul K. Madigan
JUDGE

At Suva
13 June, 2012