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Naitu v State [2012] FJHC 1421; HAA26.2012 (19 November 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 26 of 2012
[from Suva Magistrate's Court Case No. 875/2012]

BEFORE : HON. MR. JUSTICE PAUL K. MADIGAN

BETWEEN:

MEREONI NAITU
Appellant

AND:

THE STATE
Respondent

Counsel : Mr. D. Toganivalu for the Appellant
Ms N. Tikoisuva for State

Dates of hearing : 22 & 31 October, 2012
Date of judgment : 19 November 2012

JUDGMENT

1. In the Magistrate's Court at Suva on the 28th August 2012 this appellant entered an early plea of guilty to two counts of larceny by servant in that being employed as a teller at a major retail bank she stole the sums of $2380 and $2627 respectively.

2. She was sentenced on the 19th September 2012 to two concurrent terms of 21 months' imprisonment with a minimum term of 18 months to be served. It is against these sentences that the appellant appeals.

3. The brief facts of the case were that being employed as a teller with the bank, the appellant was, amongst other duties, responsible for assisting customers to withdraw funds from the F.N.P.F. (Fiji National Provident Fund) after approval by that institution. The FNPF maintains a disbursement account with the bank which allows members who do not have a bank account to withdraw funds directly from the bank. The appellant made two withdrawals from that account by posing as FNPF customers who had already been processed and paid out. She then used the monies for her own personal use.

4. The appellant is 32 years old and lives in a de facto relationship with 2 children. She co-operated fully with the Police and was remorseful. Her counsel tells me that she had offered to make restitution through a scheme of repayments but unfortunately this was never advised to the court below nor acted upon.

5. As this Court said in Chand HAA 023.2010, the range of sentences for larceny by servant range from a suspended sentence (rarely) to ten years imprisonment depending on the nature, length and amount of monies stolen, and that deterrent sentences should be passed as a warning to those working with cash and cheques.

6. The Magistrate quite properly took 18 months as a starting point for each of these offences and for the aggravating features (breach of trust and planned offending) she added a further twelve months. For the mitigating features of guilty plea, first offender and remorse she deducted nine months for each offence arriving at concurrent totals of 21 months' imprisonment.

7. The sentence is quite properly arrived at except that perhaps more credit should have been afforded to the appellant for the strong mitigating features. She is a first offender and had pleaded guilty at the earliest opportunity she could. She had been co-operative throughout and was remorseful. Such mitigation must be balanced by the need to discourage persons working with money to be tempted to steal. Although counsel below did tell the Court that she was willing to repay the monies stolen, this was never developed or recognized by the Court, and perhaps the Magistrate thought the offer was unrealistic. Not too much credit then can be given for such an offer of restitution (if indeed it was realistically advanced).

8. Pursuant to s.256(2) of the Criminal Procedure Decree 2009 I now quash the sentences passed below and sentence afresh.

9. I adopt the Magistrate's starting point of 18 months for each offence. I add (as she did) a further 12 months for the abuse of trust of her employer and for the planning of the thefts. Her mitigation features are:

(i) co-operation with the Police

(ii) first offender

(iii) rather small sums stolen

(iv) remorse

and for that I deduct nine months making an interim total of 21 months' imprisonment.

10. For the very early guilty plea I deduct a full one third of that sentence arriving at a final total term of imprisonment of fourteen months imprisonment. The crime being a breach of trust and there being no restitution or realistic likelihood of restitution, it is not an appropriate sentence to be suspended in whole or in part.

11. I decline to stipulate a minimum term.

Paul K. Madigan
JUDGE

At Suva
19 November 2012