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State v Tuiloma [2011] FJMC 15; Criminal Case 1512.2009 (9 February 2011)

IN THE RESIDENT MAGISTRATE’S COURT AT SUVA

Criminal Case No: 1512 of 2009

STATE

v.

ADI NINA TUILOMA

For Prosecution: Ms. Puamau S. (DPP Office)
For Accused: Mr. Vakaloloma

SENTENCE

1. You, ADI NINA TUILOMA, are here today, to be sentenced on admission of guilt on your own accord for the following offences namely:
   
   1. 49 counts of Fraudulent Falsification of Accounts – (Contrary to sec. 307 (1) of the Penal Code)
   2. One count of Larceny by servant – (Contrary to sec. 274 (a) (1) of the Penal Code)
   3. 03 counts of Forgery – (Contrary to sec. 335 (1) (c) of the Penal Code).
      
2. When the charges were explained to you on 24th February 2010, you plead not guilty to all counts. After calling the case in Court for another occasion this case had been fixed for hearing. On the date fixed for hearing, you plead guilty to all counts. Your counsel informed the Court that you are admitting the summary of facts and accordingly conviction was entered.
   
3. According to the facts (which you have admitted), between the 12th August 2008 and 01st June 2009, you were employed as an accounts clerk at Camira Holdings Limited and had been responsible for general administration of the company. Amongst other things, your duty included receiving of rent revenue from the customers and depositing them in company’s bank account held with ANZ Bank.
   
4. During the above-mentioned time period, you admitted falsifying accounts of the company in 49 occasions with intention to defraud the company and stole $49,305. Further you admitted forging the signature of the managing director of the company on 03 occasions during the said period.
   

Maximum Sentence and Tariff

5. 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.
   
6. 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.
   
7. According to Shameem J in State v. Bole [2005] FJHC 470, (04th October 2005), “the maximum sentence for offences under section 307 of the Penal Code is 07 years imprisonment. However, the tariff for breach of trust sentence ranges from 18 months to 3 ½ years imprisonment. Higher terms are imposed where there is a serious breach of trust, committed over a long period of time, there has been no attempt at restitution and no remorse expressed nor a guilty plea”.
   
8. In State v. Vatunalaba [2010] FJHC 99, (31st March 2010), Goundar J, re-iterated the fact that the tariff for theft offences arising from breach of trust range from 18 months to 03 years imprisonment. According to Goundar J ‘suspended sentences are reserved for cases where the offenders have shown remorse or the value of the property is small’.
   
9. 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 02 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.

10. This is your first offence. You plead guilty to all the charges. Using the guidelines set out by Gates J (as he then was) in State v. Rajesh Kumar [2005] FJHC 477 and the above-mentioned guideline judgments I rate all the charges against you as “Medium scale dishonesty offences” and set my starting point of sentencing for 24 months imprisonment.
    
11. For your guilty plea, I reduce 04 months from the sentence and to reflect your previous good character, I reduce another 03 months.
    

Aggravating Factors

12. For over a period of 10 months you have defrauded your employer meticulously and managed to steal $ 49,305. Apart from that, you have gone to the extent of forging the signature of the director of the company. Your actions needed great care, precision, skill and cunning. Unlike many other criminals who act on impulse or in the spur of the moment, you have very cleverly and meticulously managed to deceive your employer for a period of 10 months. Considering the above facts, I add 04 months to your sentence.
    

Mitigating Factors

13. You are 32 years old single woman and said that you are remorseful for what you have done. You are the sole-breadwinner of the family. You said that you intend to complete your further studies.
    
14. To reflect your mitigation, I reduce three months from your sentence.
    
15. Your sentence now stands for 18 months imprisonment.
    

Decision on sentence

16. You plead guilty and stated that you are remorseful for your actions. Total amount you defrauded was $49,305 which is a highly significant amount of money. You have never attempted to pay back a single cent to the complainant during the time this case was pending before this court nor offered to pay that amount back.
    
17. The above mentioned lacuna on your part made me to decide that you have failed to display a genuine remorse of your actions.
    
18. Section 4 of the Sentencing and Penalties Decree 2009 had set out the guidelines to be followed on sentencing an offender.
    

4. — (1) The only purposes for which sentencing may be imposed by a court are —

(a) to punish offenders to an extent and in a manner which is just in all the circumstances;

(b) to protect the community from offenders;

(c) to deter offenders or other persons from committing offences of the same or similar nature;

(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) to signify that the court and the community denounce the commission of such offences; or

(f) any combination of these purposes.

19. In State v. Osea Waqamailau [2010] FJHC 534 (22nd November 2010), Nawana J held that:- “Admittedly, the accused is a first offender and he did not have a prior history of violence or of similar nature. Whether, 'a first offender' should earn mitigation on sentencing is a matter, in my view, that should be carefully considered especially when the offence is serious; and, when offending is accompanied by pre-meditation, supported by well-planning and its execution is gruesome. In dealing with a plea for a non-custodial term of imprisonment in a case of robbery with violence, I remarked:
    

'...the imposition of suspended terms on first offenders would infect the society with a situation - which I propose to invent as 'First Offender Syndrome' - 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' ...

See State v Tilalevu [2010] FJHC 258; HAC 081 2010 ;(20 July 2010)"

20. Considering the above-mentioned reasoning by Nawana J and the sentencing guidelines, I decide to impose a partly custodial sentence upon you to reflect the gravity of your actions.
    
21. You are already sentenced to 18 months imprisonment. I order that you serve 06 months in prison custody and remaining 12 months is suspended for five years.
    
22. It is explained to you that if you commit any other offence during the operational period of your sentence and found guilty by a Court, you are liable to serve another 12 months imprisonment term.
    
23. 28 days to Appeal.
    

On this Wednesday the 09th day of February 2011

Kaweendra Nanayakkara
Resident Magistrate