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FICAC v Waqanidrola [2010] FJMC 16; Criminal Case 1208.2009 (11 March 2010)

IN THE RESIDENT MAGISTRATE’S COURT AT SUVA

Criminal Case No: 1208 of 2009

FICAC

V

PITA WAQANIDROLA

For Prosecution: Ms. Leweni of FICAC
For Accused: Ms. Elenoa Raitamata of LAC

SENTENCE

1. You, PITA WAQANIDROLA, are here today, to be sentenced on admission of guilt on your own accord for the following offences namely:

i. Forgery – (Contrary to sec. 335 (1) (c) of the Penal Code).

ii. Three counts of Uttering forged document – (Contrary to sec. 343 of the Penal Code)

iii. Obtaining money by virtue of a forged document – (Contrary to sec. 345 (a) of the Penal Code)

2. When this case was called before me, you informed that you are maintaining the guilty plea, which you have entered earlier before my sister magistrate.

3. According to the facts (which you have admitted), between 19th December 2007 and 21st December 2007, you have forged the signatures of 10 members of Tokatoka Volivoli and obtained a total of $4609.87, which is the lease money from Native Land Trust Board (NLTB) and shared with some members of Tokatoka Nukutabua without the knowledge of the others.

Maximum Sentence and Tariff

4. For an offence punishable under sec. 335 (2) of the Penal Code, maximum prescribed sentence is ’14 years 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.

5. 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.

6. 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].

7. 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.

8. 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.

9. 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

10. To fulfil your crime, you have forged signatures of 10 members of Tokatoka Volivoli. You were successful in deceiving the officers of NLTB. I consider this as an aggravating factor and add another 06 months to your sentence.

Mitigating Factors

11. You are a first offender, so you are entitled to a discount for your previous good behaviour. You have 10 children. You are a farmer and the sole bread-winner of the family. According to your counsel’s submission on mitigation, at the time of the commission of the offence, you were unaware that you were committing any crime. You have confessed before your clan and your apology had been accepted by them. Elders of your clan had confirmed that position in writing.

12. I consider your apology to your clan as genuine display of remorse and considering other mitigating facts, I reduce 06 months from your sentence.

13. 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.

14. 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).

15. 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.

16. I sentence you to 12 months imprisonment and suspend the term for 18 months.

17. 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.

18. 28 days to Appeal.

On this Thursday the 11th day of March 2010

Kaweendra Nanayakkara
Resident Magistrate