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State v Raju [2012] FJMC 178; Criminal Case 1399.2007 (26 July 2012)

IN THE MAGISTRATE’S COURT OF FIJI
WESTERN DIVISION (AT NADI)
CRIMINAL JURISDICTION

CRIMINAL CASE NO: 1399/07

THE STATE

V

MANJULA WATI RAJU

Ms. Vateitei for State

Mr. E. Maopa for Accused

Date of Sentence: 26. 07. 2012.

SENTENCE

1. You, MANJULA WATI RAJU, have been convicted after trial for one count of CONCERSION contrary to section 279 (1) (c) of the Penal Code.
   
2. You between 2 March 2007 and 31 July 2007 fraudulently converted to your own use and benefit the sum of $FJD $59,000.00 which was entrusted with you by your brother Elvis Mahendra for the payment for purchase of a house. Your brother is working in Australia. He wanted to buy a house in Fiji. You then told your brother that you can buy one for him and requested him to send the money to your bank account at Westpac, Nadi Branch. Your brother sent $FJD 59,000.00 to your account. You instead of buying the house converted the money for your own use.
   
3. Betrayal of trust the complainant, your brother had in you and the loss you caused to him and amount involved ($59,000.00) aggravated the offending.
   
4. Your mitigating factors were that: you are 62 years old. You are a domestic duty and married with 2 grown up children residing overseas. You reside with your husband at Malolo, Nadi. You are a first offender and a person of good character. You suffer from Paranoid Schrophrenia. You have been attending the Psychiatric Clinic at Nadi Hospital since 2009. You are remorseful and urge the Court for a lenient sentence.
   
5. The maximum penalty provided by section 279 (1) of the Penal Code is 7 years imprisonment.
   
6. However, tariff for the offence of conversion ranges from 15 months to 2 1/2 years.
   
7. In Barrick 7 Cr. App. R(s) 142, the English Court of Appeal set out guidelines for the sentencing principles applicable in cases of breach of trust. The English Court of Appeal said at p.146:
   

"In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money is very small. Despite the great punishment that offenders of this sort bring upon themselves, the Court should nevertheless pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence. The sum involved is obviously not the only factor to be considered, but it may in many cases provide a useful guide."

8. In Shane Raymond Heatley v. The State HAA003/05, Pain J reviewed the cases for fraudulent offending and at page 6 of the judgment said:
   

"These cases show that on a plea of guilty of obtaining money by fraud a sentence of 4 years imprisonment is likely for the most serious type of case (see dicta in Vishwajit Prasad v. State App. 23 of 1993). However aggravating circumstances may warrant a greater 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 2½ years imprisonment."

9. When found guilty to the charge you told to court that you would pay the amount involved just as restitution. If you are really minded to pay the amount involved you should have made the payment before passing the sentence. You cannot claim any credit on the promise of restitution.
   
10. In your case, I would pick 2 years imprisonment as my starting point. I add 1 year to reflect the abovementioned aggravating factors. This brings an interim total to 3 years. I deduct 5 months to reflect your previous good character. I deduct further 3 months for your mitigation. Your final sentence is 2 years and 4 months imprisonment.
    
11. This is a serious breach of trust case. The nature of offence demands immediate custodial sentence. The amount obtained by conversion in this case is $59,000.00. There has been no real restitution though promised. You have received your credit for your previous good character. I therefore decline to suspend the sentence though you are a first time offender.
    
12. Twenty eight (28) days to appeal.
    

ORDER

13. I make the following order:
    

(a) You are hereby sentenced to 2 years and 4 months' imprisonment.

M H Mohamed Ajmeer
Resident Magistrate

Dated at Nadi this 26th day of July, 2012