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State v Agyemang [2012] FJMC 155; Case 625.2012 (13 July 2012)

IN THE MAGISTRATE COURT OF FIJI ISLANDS
AT SUVA

Case No: 625/12

THE STATE

V

MARVIN OPOKU AGYEMANG

BOAKYE VINCENT KWAME

ISAAC VELLISON

For Prosecution: - Ms Leweni T (for DPP).
For Accused persons: - Ms. Jiuta S. (LAC).

SENTENCE

1. You were charged for the offence of 'Dishonestly Dealing in personal Financial Information' punishable under Sections 349(a), (b) of the Crimes Decree No 44 of 2009.

2. Particulars of the offence states that you have dishonestly dealt in personal financial information without the consent of the person to whom the information relates.

3. The alleged offence was committed between 30.11.2011 and 08.01.2012.

4. The matter was first called before me on 04.05.2012. The counsel for the State sought time to disclose the evidence they have against the accused persons. Full phase disclosers were served to you on 18.05.2012.

5. When the case was called on 12.06.2012 each of you entered a 'Plea of Guilt'.

6. All three of you are Ghana nationals. You arrived in Fiji 29.11.2011 on student visas. The visa was obtained to undertake a research on eco-tourism in Fiji and for internship program at the Bay of Plenty Resort in Yasawa Island.

7. According to the summery of facts, between 30.11.2011 and 08.01.2012 Vodafone Fiji Limited has traced number of irregular activities on their Vodafone Electronic Shop which can be accessed via internet. Phone recharge cards had been purchased through the website by using credit card payments.

8. When the company verified the said payments through Westpac Bank it was found that they were carried out without any valid authorisation by the card holders. The matter was then reported to the police.

9. Later during another attempt, the first accused of this case was arrested at Courts Fiji Samabula branch. Investigators arrested the other two accused on suspicion. They were staying together in the same flat. They discovered personal financial information of six other persons from their possession.

10. You were interviewed under caution. Each of you admitted that you had possessed and dealt with one or more of that information during your stay in Fiji.

11. Section 349 of the Crimes Decree 2009 states as follows,

349. A person commits a summary offence if he or she—

(a) dishonestly obtains, or deals in, personal financial information; and

(b) obtains, or deals in, that information without the consent of the person to whom the information relates.

12. Interpretation of 'Personal Financial Information' is defined in section 347.

"personal financial information" means information relating to a person that may be used (whether alone or in conjunction with other information) to access funds, credit or other financial benefits.

13. Details of any person's credit card are covered under the definition as it can be used to access funds or credit facilities of that person. The information ascertained by the investigators shows that the credit card details which were possessed by the accused persons are within operative periods. Further it had been confirmed that they were used without authorisation of the actual persons.

14. It is to be noted that word 'Obtain' includes 'possession' of any personal financial information. The prosecution have to provide evidence on 'dishonesty' in order to convict an accused person under this section. And if the accused had possessed it without the consent of the person to whom the information relates, a conviction can be sustained under section 349(a)(b). In other words prosecution has to provide evidence to fulfil both limbs of the section.

15. In this case the prosecution submits through their witness of the Westpac Bank that you were not authorised by the card holders to use their information. In my view this evidence creates a rebuttable presumption to the fact that the said information was obtained by a dishonest manner.

16. Therefore the Court convicts each of you for the offence of section 349(a)(b) of the Crimes Decree 2009.

17. Now the Court has to determine an appropriate starting point for the sentence. The maximum penalty of the offence is 5 years imprisonment. Both counsels concede that there are no guideline judgements for the offence as it is a novel offence to the criminal justice system in Fiji.

18. However counsel for the accused submitted a relevant case authority by the District Court of New South Wales. Section 480.4 of Australian Criminal Code Act of 1995 is verbatim to section 349 of the Crimes Decree. It also carries the same punishment to a person convicted. In R v Francis Tolentino [2009] NSWDC 381 [9 November 2009] the accused was convicted and sentenced to 2 years. But the sentence was suspended due to the vulnerability of the accused person due to his drug addiction.

19. In Ilic v Tasmania [2009] TASSC 94 [ 16 October 2009] the accused appellant had been charged with several fraud offences one of which was Dealing with Financial Information contrary to section 480.4 of Criminal Code Act of 1995. The accused was sentenced 3 years and the Court fixed a non parole period of 2 years imprisonment.

20. However both these cases did not actually set a tariff for the offence of Dealing in Personal Financial Information. This Court wishes to emphasis on the importance of certain tariff by Fiji higher judiciary as there is a greater tendency towards these types of offences by the offenders in present global context.

21. At present most of the world population is used to do their financial transactions by using internet and other electronic methods. Due to this, most of the time people have to disclose their personal financial information in routine work such as paying utility bills and inquiring bank balances. Acquisition of these personal information amounts to an intervention to privacy of another person.

22. The Court has to punish the offenders sternly as these types of crimes are always difficult to detect. At the present case the 1st accused was located when he came to collect items which were purchased by another unauthorised card payment. Later other information discovered as a result of the search carried out in their residential property.

23. On the other hand the Court should uphold the confidence of the service providers. If the service providers always deceived by the fake users who possess other's financial information, the impact will undoubtedly collapse the modern financial balance.

24. Therefore view of this Court is that the starting point for the offence should be one year imprisonment. It can vary on the amount of information a person possessed and the amount of funds or credit which would have accessed by that information.

25. Hence I select one year imprisonment as the starting point for each of your sentence.

Aggravating Factors

26. All three of you entered in to Fiji on visa permits as foreigners. You have used this status to possess personal financial information of others. In fact the system in the country will not discourage to accept such information for financial activities such as payments but it will take time for them to recognise the actual owners of this information. Even though they find that they were deceived, by that time it will be difficult to locate you. Thus vulnerability of the system aggravates your offence.

27. Your sentence will be increased by 10 months to indicate the said aggravating factor. Now your term of imprisonment stands at 22 months.

Mitigating Factors

28. Following submissions were made on your behalf for mitigation.

MARVIN OPOKU AGYEMANG

1. Single parent with two year old child in Ghana,
2. 28 years old,
3. Remorseful,
4. First offender.
   

BOAKYE VINCENT KWAME

1. 31 year old single person,
2. First offender,
3. Remorseful,
4. Suspected of a medical condition.
   

ISAAC VELLISON

1. 25 year old,
2. Remorseful,
3. First offender.
   

29. All three of you pleaded before a full hearing of the case. Thus you are entitled for a deduction of 7 months from your term of imprisonment. The term will now stand at 15 months.

30. Having considered your previous good behaviour and personal circumstances I further reduce 3 months from your respective terms. Now your final term of imprisonment is 12 months.

31. The Court is mindful that a sentence below two years can be suspended by this Court.

32. Section 15(3) of the Sentencing and Penalties Decree states that sentences of imprisonment should be regarded as the sanction of last resort. On the other hand deterrence of offenders and other persons from committing similar offences is one of the main purposes of sentencing. The sentence should reflect that the Court and the law abiding community denounce such offenders even though they are first time offenders.

33. It is to be noted that all three of you are in custody for this offence since 04.05.2012. Pursuant to section 24 of the Sentencing and Penalties Decree 2009 you are eligible for another deduction of 2 months and 9 days.

34. The Court considers this period as a part of your imprisonment term.

35. For the reasons in paragraphs 21, 22 and 23 the Court is not satisfied to act in terms of section 26 (1) of the Sentencing and Penalties Decree 2009 to suspend your sentence.

36. Accordingly each of you will serve another 9 months and 21 days in prison to complete your term of 12 months.

37. You have 28 days to appeal against this sentence.

38. The registry will serve a Copy of this order to the Director General, Immigration Department of Fiji for necessary action.

Yohan Liyanage
Resident Magistrate

13th July 2012