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State v Voi [2010] FJMC 147; Criminal Case 844.2009 (8 February 2010)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: 844 of 2009

DPP

v.

VAMARASI VOI

For Prosecution: Mr. Fotofili (DPP)
Accused: Present in Person

SENTENCE

1. You, VAMARASI VOI, are here today, to be sentenced on admission of guilt on your own accord for the following offences namely:
   
   1. Larceny – (Contrary to sec. 259 and 262 of the Penal Code)
   2. Forgery – (Contrary to sec. 335 (1) (c) of the Penal Code).
   3. Uttering forged document – (Contrary to sec. 343 (1) of the Penal Code)
   4. Obtaining money on forged document – (Contrary to sec. 345 (a) of the Penal Code)
      
2. When this case called before me, you informed that you are maintaining the guilty plea, which you have entered earlier before my sister magistrate. Therefore, I am fully satisfied that you have not been misled when you entered the guilty plea without an assistance of a counsel.
   
3. Since I did not have an opportunity to hear the 'Summary of Facts" which was placed before my sister magistrate, learned State Counsel Mr. Fotofili, from DPP office assisted me by tendering written submissions guiding me through 'tariff' as well.
   
4. According to the facts (which you have admitted), during the month of January 2008, you were stationed at Police Force Headquarters' central registry and your work involved mail runs and dispatch from Nausori to Navua. On 02nd January 2008, complainant had made two meal claims totalling $ 369 and after endorsing the claim by Divisional Police commander – Southern, it was sent to accounts section at Police Headquarters for processing of the cheque, which allows the reimbursement. On 23rd January 2008, Police Account Section issued ANZ cheque number 631278 for a sum of $ 369 and left it in the office of IP Nacanieli, who was to deliver that cheque to the complainant. In a day between 24th January 2008 and 27th March 2008, you have informed IP Nacanieli, that you were going to deliver that cheque to the complainant and had removed it from IP Nacanieli. You have never delivered that cheque to the complainant but had forged the signature of the complainant and had cashed the cheque at Seeto Kee Ltd, Suva. They have charged $3 as commission and had given you $ 366.
   
5. It was alleged that you have used the money acquired through cashing the cheque for your personal use and you have admitted that allegation.
   

Maximum Sentence and Tariff

6. Maximum sentence for the offences under Sec. 262 differs according to each limb of the section. If it is simple larceny, maximum sentence is fixed for 5 years. However, it is ten years for an offender with a previous conviction for felony. If there is a previous conviction for misdemeanour, maximum sentence is for 7 years. Since you have no previous convictions, I consider that the offence is to be punishable under Sec. 262 (1) of the Penal Code. For an offence punishable under sec. 335 (1) (c) of the Penal Code, maximum prescribed sentence is 'life imprisonment'. Under sec. 345 (a), maximum sentence is for 14 years. Uttering forged document had considered as forgery of document in Sec. 343 (1) of the Penal Code and had prescribed the same punishment for forgery of document.
   
7. According to DPP counsel's written submission, tariff for Larceny is 12 months to 18 months imprisonment. (Poniasi Saulekaleka v. The State HAA0050 of 2001 S / Talau v. The State 2005 FJHC 212; HAA0078J.2005, on 05th May 2005 per Shameem J and Emosi Betu v. The State HAA58 of 2008 0n 11th November 2008 per Anthony J Sherry J). In Lorosio Vulaca v. The State, Crim. App. No: HAA 031 of 2007S, tariff of 2-9 months imprisonment for first offenders had been identified by Shameem J.
   
8. According to Goundar J in State v. Chaudary [2008] FJHC 69.2007, 70.2007 & 71.2007 (on 19th February 2008), average sentence for a first offender with "Forgery" charge is one year imprisonment and in Hu Jung Yun v. The State [2005] HAA024 of 2005, three year sentence had been imposed.
   
9. In State v. Chaudary [2008] FJHC 69.2007, 70.2007 & 71.2007 (on 19th February 2008); Goundar J identified six months imprisonment as average sentence for Uttering false documents as per Lauzik Mukesh Chand v. The State [FCA AAU 013 of 1998].
   
10. In State v. Rajesh Kumar [2005] FJHC 477, Gates J (as he then was), had identified 1 count of Forgery, 10 counts for Uttering, 10 counts of Obtaining money on a forged document' and 5 counts of Larceny by servant as "Medium Scale dishonesty Offences" and convicted the accused for 2 years imprisonment and suspended it for 2 years. In that case Gates J (as he then was), held that the 'remorse shown by the accused was genuine". Following observations were made with regard to the tariff.
    

"The tariff for medium scale dishonesty offences is 2 to 3 years imprisonment. For the worst cases, bearing in mind the need worldwide to curb corporate misgovernance and white collar crime, the tariff well extend to 6 years. In BARRICK [1985] 81 Cr. App. R. 78 Lane CJ considered this type of case to be medium range. The medium range fell within the figures £10,000 [F$ 30,000] to £ 50,000 [F$ 150,000].That case was decided 20 years ago, and it is likely the medium range today might shift to figures F$25,000 to F$200,000.

11. This is your first offence. You plead guilty in the first available instance. Using the guidelines set out by Gates J (as he then was) in State v. Rajesh Kumar [2005] FJHC 477, I rate all the charges against you as "Small scale dishonesty offences" and set my starting point of sentencing for 18 months imprisonment.
    
12. Since you have pleaded guilty in the first available instance, you are entitled for 1/3 reduction. Re: Aliki Vilimone v. STATE (Cr. App. HAA 131/2007). Your sentence is now stands for 12 months imprisonment.
    

Aggravating Factors

13. When you committed this offence, you were a Police Officer. You have breached the trust which the other officers have placed upon you. Considering these as aggravating factors, I add another 06 months to your sentence.
    

Mitigating Factors

14. You are a first offender, so you are entitled for a discount for your previous good behaviour. You have reimbursed the money to the complainant. I consider this as genuine display of remorse. You have five children and you are 44 years of age. To reflect these mitigating factors, I reduce 06 months from the total imprisonment period.
    
15. Your total imprisonment period now stands for 12 months imprisonment. I am mindful to the fact that sentences, which are below 2 years, could be suspended. State Counsel is of the view that suspended sentence is too lenient and would send mixed signals to the public since you have committed this offence as a Police Officer.
    
16. According to my observation, Fiji legal system usually had bent backward to save first offenders from a custodial sentence. Re: Moses Nariva v. The State (Cr. App. HAA 148/ 2005).
    
17. You are a first offender. Hence, I am of the view that you should not be sentenced to imprisonment. I am sure, given an opportunity, you would lead a crime free life.
    
18. I sentence you to 12 months imprisonment and suspend the term for 18 months.
    
19. If you commit any offence during this 18 months period and found guilty by the court, you are liable to serve 12 months imprisonment period.
    
20. 28 days to Appeal.
    

On this Monday the 08th February 2010

Kaweendra Nanayakkara
Resident Magistrate