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State v Naidu [2010] FJMC 104; Criminal Case 623 of 2008 (3 February 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No. 623/08

THE STATE

V

SHALESH VIKASH NAIDU

SENTENCE

You, Shalesh Vikash Naidu have pleaded guilty to five counts of Forgery contrary to Section 335(2)(a) of the Penal Code, five counts of Uttering forged documents contrary to Section 343(1) of the Penal Code and five counts of Obtaining money on forged documents contrary to Section 345(a) of the Penal Code.

It was revealed that while you were employed as a salesman you had forged five payment vouchers and had obtained 853 Dollars in five different occasions.

The learned Counsel who appeared for you requested from this court that you may be discharged under the provisions of Section 44 of the Penal Code.

The learned Counsel informed court that your wife has applied for permanent residence in New Zealand and she is already working there. Further it was informed that, if you are not discharged from this case it could affect the granting of Visa to you. It was also informed that you have been granted working Visa since 25th May 2009 and it is to expire on 4th March 2010. It appears that you are prevented from going overseas due to the Stop Departure Order made by this court on 9th October 2008.

During the mitigation on your behalf the decision in State V. Quranivalu 1998 FJHC 197 was brought to the notice of this Court. It is an Appeal made by the State against an absolute discharge in a case where an accused was charged with five counts including Larceny by servant, Forgery, Uttering forged documents, Obtaining money by false pretence and Personation.

In that case the accused had stolen a cheque belonging to the complainant and had forged it and had obtained money. Later the complainant had come to know that the accused was a relative and she had written to Police to drop the charges against the accused. The accused had fully paid the money to the complainant. Further the employer of the accused had wanted to retain the accused despite that offence.

In that case the Hight Court held that " by virtue of Section 44 (1) of the Penal Code a prerequisite to ordering an accused to be absolutely discharged is that, having regard to the circumstances including the nature of the offence and the character of the offender, it is inexpedient to inflict punishment- prerequisites according to the learned Magistrate were present when making the order."

However in the present case the sole ground of this application to discharge you is based on the fact that if you are not discharged it could affect your P.R. Application. Basically it seems that the primary applicant of permanent residence is your wife. Secondly it was not mentioned exactly as to how a conviction or a sentence passed on you could jeopardise it. Thirdly no proof was tendered to the effect that you actually have applied for Permanent Residence in NZ.

The prosecution has charged you with fifteen counts and for each count the Law prescribes fourteen years imprisonment. You have committed these offences for a period starts from 25th June 2008 to 8th August 2008 while working as a salesman of a particular company.

The courts have always looked at offences of this nature in a very serious manner. The breach of trust and confidence reposed on employees has to be dealt with strictly and it should provide a deterrent to the members of the society. It should also be considered in this case that it is not an isolated single incident but a series of incidents for which you have been charged for.

You were charged in this case on 15th August 2008 and after pleading guilty on 01st February 2010 you sought the permission of the Court to deposit money obtained by you in the Court registry.

Unlike in the authority referred to on behalf of you, in this present case the complainant did not come forward and said that you should be leniently dealt with.

Another authority was produced on behalf of you during the mitigation. Accordingly in Ram V The State 2004 FJHC 454 an accused was imposed a custodial sentence for 8 counts including Forgery, Uttering forged documents and Obtaining money on forged documents. The accused in that case had only obtained less than 70 Dollars and had been imposed a total period of 2 years imprisonment. The Appeal was against the sentence and a conditional discharge was sought by the accused. However the High Court refused to discharge the accused and has only suspended the sentence with the following remarks;

"There is of course a need not only to punish the appellant but also to provide a deterrent to other members of the community, particularly in circumstances such as this where the appellant was employed in a position of trust and other people's monies were stolen by virtue of a breach of that trust."

In a case where 15 counts of very serious nature are brought against an accused and where at least the complainants have not expressed their inclination for leniency in dealing with an accused, I do not think that it is justifiable to hold that it is inexpedient to inflict punishment only for the convenience of the accused.

Apart from the fact that you have no previous convictions no material was placed before this court regarding your character to be considered under Section 44.

Thus I decide that the nature of the offences you are charged with, the other circumstances placed before this court or your character do not warrant this court to invoke the provisions of Section 44 of the Penal Code.

Therefore I proceed to sentence you upon your plea of guilt to five counts of Forgery contrary to Section 335(2)(a) of the Penal Code, five counts of Uttering forged documents contrary to Section 343(1) of the Penal Code and five counts of Obtaining money on forged documents contrary to Section 345(a) of the Penal Code.

The maximum sentence for Forgery is imprisonment for fourteen years. The maximum sentence for Uttering forged documents is imprisonment for fourteen years. The maximum sentence for Obtaining money on forged documents is also fourteen years imprisonment.

In this case for each count I pick my starting point as 2 years.
For the aggravating circumstances which I have already discussed I enhance the sentences for each count by three months.

It was informed to court that you have no previous convictions.

It was informed on your behalf that you are willing to pay 853 Dollars to court. Further it was informed that you are really sorry for what you did. It appears that you are remorseful of your actions. It was informed that you wish to go overseas before your visa expires.

The court is mindful of the fact that, at the same time offenders should be dealt with appropriately, they should be given a chance to correct themselves. Specially the court has considered the fact that you are still at your very young age and there is ample time for you to become a law abiding citizen.

Thus for the mitigatory circumstances of this case I reduce sentences of each count by 6 months. Accordingly I impose nineteen months imprisonments for each count i.e. From count number one to count number fifteen, to run concurrently and I suspend all sentences for three years.

Further I order that you should pay a compensation of 853 Dollars to the complainant.
If the sentences come to operation all sentences should run concurrently.

28 days to pay the compensation.
28 days to appeal.

RANGAJEEVA WIMALASENA
RESIDENT MAGISTRATE

LAUTOKA
03.02.2010