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Chand v State [2013] FJHC 72; HAA002.2013 (25 February 2013)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No: HAA002 of 2013

BETWEEN:

DENESH CHAND
Appellant

AND:

THE STATE
Respondent

Counsel: Mr. A Kohli for Appellant
Mr. S Vodokisolomone for State

Date of Hearing: 22 February 2013
Date of Judgment: 25 February 2013

JUDGMENT

[1] This is an appeal against sentence.

[2] On 2 December 2011, the appellant appeared in the Magistrates' Court at Savusavu and pleaded guilty to one count of theft and one count of giving false information to a public servant. After recording the pleas, facts and mitigation, the learned Magistrate adjourned the case to 6 December 2011 for sentence and remanded the appellant in custody.
[3] On 6 December 2011, Mr Kohli appeared for the appellant and applied to vacate the guilty pleas on the ground that the complainant had withdrawn his complaint and reconciled with the appellant. The learned Magistrate allowed the application, vacated the guilty pleas and released the appellant on bail. Apparently, the learned Magistrate had prepared a written sentence but due to Mr Kohli's intervention, the sentence was not pronounced.

[4] The case was then adjourned on numerous occasions while waiting for the DPP 's sanction to withdraw the charge. On 6 August 2012, the Court was advised that the State will proceed with the case. Trial was set for 7 November 2012.

[5] On 7 November 2012, the appellant appeared with his counsel and pleaded guilty to the charges before a different Magistrate. The facts were that the appellant was employed by the complainant as a digger operator. The complainant is an investor and owns an estate in Savusavu. On 30 November 2011, the complainant returned from the bank after withdrawing $5,000.00 cash to pay his workers. He left the cash inside his vehicle. At the time the appellant was within the vicinity of where the vehicle was parked. He took advantage of the opportunity and took the cash. He lied to the complainant that three youths broke into his vehicle and took the cash. When the matter was reported, the complainant told the same lie to the police. After further questioning, the appellant admitted stealing the cash. He immediately gave the cash to the police. Later the stolen cash was returned to the complainant.

[6] The complainant gave evidence on behalf of the appellant. The complainant told the learned Magistrate that the appellant was a valuable employee and that he continued to employ him. In mitigation, Mr Kohli told the court that the appellant was married with two young children. He was a first time offender and the offending was out of character.

[7] On each count, the appellant was sentenced to 1 year imprisonment, to be served concurrently.

[8] Three grounds against sentence have been raised. Firstly, the sentence is harsh and excessive. Secondly, the sentence is inconsistent with other sentences handed out by the court for similar offences. Thirdly, the sentence is wrong in principle.

[9] No issue is raised about the length of sentence. The issue is whether the learned Magistrate should have suspended the sentence.

[10] Suspension of sentence is within the tariff for theft and giving false information to a public servant (Mikaele Ratusili v State Criminal Appeal No.11/12, Muskan Balagaan v State Criminal Appeal No.031/11). The reason given by the learned Magistrate for not suspending the sentence was that the offence of giving false information to a public servant was a serious offence going to the root of law and order. The learned Magistrate also said that although the appellant was a first offender, he was not a young offender. According to the learned Magistrate the primary purpose of sentence was deterrence.

[11] While general deterrence plays an important role in dishonesty cases, the court must not lose sight that rehabilitation of the offender is equally important. In dishonesty cases involving employees, the loss of employment and the slim prospect of gaining a meaningful employment after conviction, are significant form of special deterrence for the offenders. For this reason, in previous cases, the courts have suspended sentences in cases involving theft by employees, where the offenders have expressed genuine remorse by restoring the stolen monies before sentence and by pleading guilty at the earliest opportunity. In these cases, the courts observed that the reparations made were out of remorse rather than a calculated attempt to escape a custodial sentence.

[12] In State v Mahendra Prasad v State [2003] HAC009/02S (30 October 2003), the offender pleaded guilty to 12 counts of theft by employee committed over 10 months. He freely and voluntarily made full reparation to his employer months before the sentencing process. His employer was satisfied with the compensation and gave evidence of the genuineness of the remorse expressed by the offender. Gates J (as he was then) sentenced the offender to a 2-year term suspended for 3 years.

[13] In State v Raymond Roberts [2004] HAA0069J/04S (1 October 2004) the offender was a bank employee who stole about $65,000.00 over a period of time from the bank. He made full reparation in advance of the sentencing hearing and pleaded guilty to the charges of theft and fraudulent conversion. Shameem J sentenced him to a term of 18 months imprisonment suspended for 3 years.

[14] In State v Seini Qaranivalu [1998] HAA0054/98S (28 August 1998) the offender was employed by a relative. She pleaded guilty to the charges of theft by employee, forgery and uttering of cheques and made full reparation to her employer. Her employer wrote to the police to drop the charges and continued employing the offender. The offender was discharged in the Magistrates' Court. The State appealed. Sadal J dismissed the appeal stating the prerequisite for discharge was present on the facts of the case.

[15] In the present case, the appellant freely and voluntarily returned the entire stolen money to the police before he was charged. Before sentencing, the stolen property was restored to the complainant and he continued to employ the appellant. No doubt the appellant was genuinely contrite. The complainant wrote to the police to withdraw his complaint and when that failed he gave evidence for the appellant saying he was a valuable employee and he was going to continue to employ him. Unfortunately, the learned Magistrate completely disregarded the complainant's evidence. In a case of theft by employee, the employer's evidence is relevant is assessing whether the guilty employee is genuinely contrite. If the learned Magistrate would have given due weight to the employer's evidence, he would have arrived at a decision suspending the sentence for the offence of theft.

[16] Recently, Gates CJ in State v Singh [2013] FJHC 43; HAR001.2013(31 January 2013) reviewed a fine imposed for absconding that was excessive than the fine imposed for the substantive offence. Gates CJ said at paragraph 12:

"By way of guidance, sentencing courts should try to maintain a correlation between the gravity of the substantive offence and the absconding bail matter."

[17] The principle of correlation equally applies to the present case. The offence of giving false information to public servant was closely correlated to the offence of theft. The appellant lied to a police officer to hide his own dishonesty. The former is not more serious than the latter, especially when the maximum penalty for theft is 10 years imprisonment and for giving false information to a public servant is 5 years imprisonment. It would be wrong in principle to impose a suspended sentence for theft and a custodial sentence for giving false information to a public servant.

[18] For these reasons I conclude the custodial sentence imposed on the appellant is wrong in principle and is manifestly excessive. Since the appellant has already spent 3 months in prison, it would be unjust to impose any further punishment on him. I quash the sentence imposed in the Magistrates' Court and discharge him forthwith without any further punishment.

[19] The appeal against sentence is allowed.

Daniel Goundar
JUDGE

At Labasa
25 February 2013

Solicitors:
Kohli & Singh for Appellant
Office of the Director of Prosecutions, Labasa for State