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State v Chand [2010] FJMC 187; Criminal Case 1654 of 2009 (29 December 2010)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 1654/09

STATE

V

MOHAN CHAND

For Prosecution : - Ms. Wickramasekera
1st and 2nd Accused : - Mr. Chand. R

SENTENCE

1. You Mr.MOHAN CHAND, was convicted by this court, for offence of "larceny by servant" which is punishable under Section 274 (a) (1) of the Penal Code Cap 17, entailed a punishment up to fourteen years, for the offence of "Giving false information" which is punishable under section 143 (a) of the Penal Code cap 17, entailed a punishment up to one year, and for the offence of "Conspiracy to commit a felony" which is punishable under section 385 of the Penal Code Act 17,
   
2. The convictions was entered consequent upon your "pleas of guilty' to the above charges on 11th of August 2010. I am satisfied that you fully comprehended the legal effects and that your pleas were voluntary and free from influence.
   
3. Summary of facts, as admitted by you before the court, revealed that the offence of Larceny by Servant was committed during the period between 1st to 31st day of August 2008, and the offence of "Giving false information" was committed on the 22nd day of August 2008 and the offence of "Conspiracy to commit a felony" was committed during the period between 1st to 31st of August 2008, while bring employed as a Sales Representative by the Tappoos Fiji Ltd. You fraudulently stole cash, telecards, and recharge cards to the total value of $ 63,240.77, the property of Tappoos Fiji Ltd.
   
4. Further, the summery of facts revealed, that you was responsible for the sale of telephone cards from Tappoo's warehouse in Raiwai. You had a lot of credit in your account. The total amount was $63, 240.77 worth of cash, telecards, and recharge cards. The cash you had received from credit sales had not been given to Tappoo's Fiji Ltd.
   
5. You with the fear of that you will be caught by the internal audit team at the end of month, you conspired with another and carried out a fake robbery incident to cover up your act of larceny from the Tappoo's.
   
6. The learned counsel for the State suggested in her Sentencing submission the aggravating factors are
   
   1. The amount that was stolen is a very high amount,
   2. The accused had not attempted to restitute the amount stolen,
   3. The accused played a very vital role in the commission of the offence,
   4. The accused is not a first offender,
      

Moreover, the learned counsel for the State drew my attention to several judicial authorities in order to determine the tariff.

7. The Learned counsel who appeared for you made pleas in mitigation on behalf of you. In his submission, emphasized that the 2nd accused was the instigator and the ring leader of all the incidents of crime and 2nd accused being your boss had complete influence over you. It was further submitted that 2nd accused was the sole beneficiary of the fruits of this crime not you. The learned counsel of you suggested a non custodial sentence for you.
   
8. This is a case involved with medium scale serious dishonesty offence. Gate J held in State v Kumar [2005] FJHC 477; HAC0005T.2005S (7 October 2005) that "In Barrick&#1605) 81 Cr. App. 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 dd 20 years ago, and it is l is likely the medium range today might shift to the figures F$25,000 to F$200,000. In my view, though serious, this case falls within the medium range of offences"
   
9. The purposes of sentencing you in pursuant to section 4 (1) of the Sentencing and Penalties Decree to punish offenders to an extent and in a manner which is just in all the circumstance, to protect the community from offenders in this nature, to deter offenders or other persons from committing offences of the same or similar nature, to establish conditions to facilitate or promote the rehabilitation of the offenders and more importantly to signify that the court and the community denounce the commission of such offences.
   
10. I now proceed to consider appropriate sentences on you upon considering the general principle of sentencing under Section 15 (3) and section 17 of the Sentencing and Penalties Decree and objective of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree as all these three counts founded on the same facts and / or form a series of offences of the same or a similar character.
    
11. Gate J (as then he was) held in State v Kumar (supra) "The tariff for medium scale dishonesty offences is 2-3 years imprisonment. For the worst cases, bearing in mind the need worldwide to curb corporate misgovernance and white collar crime, the tariff could well extend to 6 years".
    
12. The tariff for the serious fraud offences is 18 months to 4 years. ("Savenanca Labavuka v FICAC (2009) FJHC 119, State v Isimeli Drodroveivali (Unreported) Suva High Court Cr. Case No HAC007.2002S,Panniker v State (2000)FJHC 156, Sate v Roberts (2004)FJHC 51,). Pain J in Shane Raymond Heatley e Stae State (HAA0003.1995) held teld that "These cases show that on a plea of guilty&#f obta obtaining money by fraud a sentence of 4 years sonme likely for the most serious type of case (see diee dicta in Vishwajit Prasad v. State App. App. 23 of 1993). However aggravating cirances may warrant a greatereater sentence (Anil Kumar v. R). If the amount involved is small a short period of imprisonment is appropriate (see Mara Kapaiwai v. R – albeit on a plea of guilty). Otherwise sentences imposed in these reported cases have ranged from 15 months to 2 ½ years imprisonment."
    
13. The case of Barrick (1985) 91 Cr.App78) succinctly discussed the determining factors considered as sentencing guidelines for serious breach of trust cases, where it was held that " in determining sentence in breach of trust cases, the court should have regard to the following matters,
    
    1. The quality and degree of trust reposed in the offender including his rank,
    2. The period over which the fraud or the theft have been perpetrated,
    3. The use to which the money or property dishonestly taken was put,
    4. The effect upon the victims,
    5. The impact of the offences on the public and public confidence,
    6. The effect upon fellow employees or partners,
    7. The effect of the offender himself,
    8. His own history,
       
14. Justice Shameem, held in State v Raymond Roberts ( HAA0053 of 2003S), " the principles that emerge from these cases are that a custodial sentence is inevitable where the accused pleaded not guilty and makes no attempt at genuine restitution. Where there is a plea of guilty, a custodial sentence may still be inevitable where there is a bad breach of trust, the money stolen is high in value and the accused shows no remorse or attempt at reparation".
    
15. In view of above judicial precedents and provisions of the Sentencing and Penalties Decree, and careful perusal of the summery of facts, sentencing submission of the prosecution and mitigation submission of the learned counsel for the accused, I now proceed to determine an appropriate starting point for your sentence. In line withe sentencing gung guidelines and principles, I select 24 months imprisonment period as a starting point.
    
16. You committed this ofis offence working as a Sales Representative of Tappoo's Fiji Ltd. You abused your position as a Sales Representative who was responsible for the sale of telephone cards from Tappoo's warehouse. You breach and betray the trust and confident of your employer, you're fellow colleagues as well as the customers of the Tappoo's Fiji Ltd. You dishonestly attempted to gain from the position you held. Instead of exercising your official duties and responsibilities for the betterment of the company, you choose otherwise to meet your narrow personnel interest.
    
17. The impact of this offence is multi dimensional. Not only the company and you're fellow employees but also the wide range of customers was affected. Your act not only attenuates the integrity of the corporate governance but also the confident and efficient function of the corporate sector in the country.
    
18. This is not a crime of opportunity. You planned and carried out this disgraceful act of dishonest over a period of one month without remorse. This is a premeditated and well calculated white collar crime with multi dimensional impact to the corporate sector in the country.
    
19. I now draw my attention to address the mitigatory factors in your favors.
    
    1. Married with three children,
    2. Lost your employment and income,
    3. Committed this offence through the influence, instigation, direction, and participation of your boss,
    4. Early plea of guilty before the hearing,
    5. Remorseful and apologetic,
    6. First Offender as your previous conviction recorded in 1990,
       
20. In view of aforementioned aggravating factors I increase 12 months, to reach the period of 36 months. In considering your early guilty plea prior to the hearing I reduce 6 month and for other mitigatory factors, I reduce 10 months to reach the period of 20 months. Now your sentence reaches to 20 months imprisonment period. According to section 26 (2) (b) of the Sentencing and Penalties Decree sentence which is below two years could be suspended by this court.
    
21. At this point, I now draw my attention to the finding of Nawana J in " State v Vilikesa Tilalevu and Savenaca Mataki ( 2010) FJHC 258, HAC081.2010(20 July 2010)) in relation to the First offenders, where his lordship Nawana J held "I might add that the imposition of suspended terms on first offenders would infect the society with a situation - which I propose to invent as 'First Offender Syndrome';-160;- where people would tempt to commit serious offences once in life under the firm belief that they would not get imprisonment in custody as they are first offenders. The resultant position is that the society is pervaded with crimes. Court must unreservedly guard itself against such a phenomenon, which is a near certainty if suspended terms are imposed on first offenders as a rule".
    
22. Further, I reiterated the judicial dicta of Her ladyship Justice Shameem in State v Raymond Roberts ( HA of 2003S), where Sere Shameem J held that " the principles that emerge from these cases are that a custodial sentence is inevitable where the accused pleaded not guilty and makes no attempt at genuine restitution. Where there is a plea of guilty, a custodial sentence may still be inevitable where there is a bad breach of trust, the money stolen is high in value and the accused shows no remorse or attempt at reparation".
    
23. In view of the above judicial precedents, and purposes of your sentencing in pursuant to section 4 (1) of the sentencing and Penalties decree I do not find any compelling reason to suspend your sentence.
    
24. Accordingly, I sentence you for 20 month imprisonment period for the offences of "larceny by Servant" contrary to section 274 (a) (i) of the Penal Code Act 17, "Giving false Information" contrary to section 143 (a) of the Penal Code Act 17 and "Conspiracy to commit a felony" contrary to section 385 of the Penal Code Act 17. Further in pursuant to section 18 (1) of the Sentencing and Penalties Decree you are not eligible for parole within a period of 12 months.
    
25. 28 days to appeal.
    

On this 29th day of December 2010.