Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Singh [2012] FJMC 188; Criminal Case 199.2012 (9 August 2012)

IN THE MAGISTRATE'S COURT
AT SUVA
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 199/12

STATE

V

SANIL SINGH

Prosecution: PC Pauliasi, Police Prosecutor.
Accused: Present – Mr Waqainibete and Ms Safaira Ratu (Duty Solicitor – Legal Aid).

SENTENCE

Introduction and the Charges

Sanil Singh you have pleaded guilty to the following 8 counts:

Count One

Statement of offence [a]

THEFT: contrary to Section 291(1) of the Crimes Decree Number 44 of 2009.

Particulars of Offence (b)

SANIL SINGH on the 9th day of December, 2011 at Suva in the Central Division, dishonestly appropriated (stole) Westpac Cheque Leaf Number 313 valued $0.05 the property of Navutu Earthworks and Civil Contractors.

Count Two

Statement of offence [a]

FALSIFICATION OF DOCUMENTS: contrary to Section 160(1) of the Crimes Decree Number 44 of 2009.

Particulars of Offence (b)

SANIL SINGH on the 9th day of December, 2011 at Suva in the Central Division, dishonestly falsified Westpac Bank Cheque Number 313 which is kept, retained and issued by Navutu Earthworks and Civil Contractors with intent to obtain goods amounting to $780.75 purporting it was signed by Sachin Deo Sharma.

Count Three

Statement of offence [a]

USING FORGED DOCUMENTS: contrary to Section 157(1)(a) of the Crimes Decree Number 44 of 2009.

Particulars of Offence (b)

SANIL SINGH on the 9th day of December, 2011 at Suva in the Central Division, dishonestly caused the Westpac Bank computer system to respond to the forged document (Westpac Bank Cheque Number 313 of Account Number 9801778664) as if the document was genuine.

Count Four

Statement of offence [a]

OBTAINING PROPERTY BY DECEPTION: contrary to Section 317 (1) of the Crimes Decree Number 44 of 2009.

Particulars of Offence (b)

SANIL SINGH on the 9th day of December, 2011 at Suva in the Central Division, by a deception, dishonestly obtained 1x ATEC 65 millimeter Jigsaw valued at $119.64, 2 x 20 Kilogram Easy Fix Mix Glue valued at $31.00, 1 x ATEC 18 millimeter Impact Drill valued at $95.00, 1 x Bosh 7 ¼ Circular Saw valued at $320.60, 1 x 4 liter Transtain Valued at $70.00, 39 x (6 x6)” White Gloss Wall Tile valued at $8.19, 117 x (300 millimeter x 300 millimeter) Plain Floor Tile valued at $119.34 and 1 x 1 liter Apco Interior Vanish valued at $17.00 the property of R.C Manubhai Company Limited with intention of permanently depriving the said R.C Manubhai Company Limited.

Count Five

Statement of offence [a]

THEFT: contrary to Section 291(1) of the Crimes Decree Number 44 of 2009.

Particulars of Offence (b)

SANIL SINGH on the 10th day of December, 2011 at Suva in the Central Division, dishonestly appropriated (stole) Westpac Cheque Leaf Number 314valued $0.05 the property of Navutu Earthworks and Civil Contractors.

Count Six

Statement of offence [a]

FALSIFICATION OF DOCUMENTS: contrary to Section 160(1)of the Crimes Decree Number 44 of 2009.

Particulars of Offence (b)

SANIL SINGH on the 10th day of December, 2011 at Suva in the Central Division, dishonestly falsified Westpac Bank Cheque Number 314 which is kept, retained and issued by Navutu Earthworks and Civil Contractors with intent to obtain goods amounting to $780.75.

Count Seven

Statement of offence [a]

USING FORGED DOCUMENTS: contrary to Section 157(1)(a) of the Crimes Decree Number 44 of 2009.

Particulars of Offence (b)

SANIL SINGH on the 10th day of December, 2011 at Suva in the Central Division, dishonestly caused the Westpac Bank computer system to respond to the forged document (Westpac Bank Cheque Number 314 of Account Number 9801778664) as if the document was genuine.

Count Eight

Statement of offence [a]

OBTAINING PROPERTY BY DECEPTION: contrary to Section 317 (1)of the Crimes Decree Number 44 of 2009.

Particulars of Offence (b)

SANIL SINGH on the 9th day of December, 2011 at Suva in the Central Division, by a deception, dishonestly obtained 1x ATEC 65 millimeter Jigsaw valued at $119.64, 2 x 20 Kilogram Easy Fix Mix Glue valued at $31.00, 1 x ATEC 100 millimeter Angle Grinder valued at $64.04, 1 x ATEC 65 millimeter Jigsaw valued at $121.34. 1 x Kaba Entrance Knob Valued at $29.90, 1 x 5 liter Apco High Gloss Paint valued at $52.37, 1 x 0.022 liter yellow Paint Tinter valued at $3.870 and 1 x 9 ¼ “ Bosch Circular saw Valued at $503.55 the property of R.C Manubhai Company Limited with intention of permanently depriving the said R.C Manubhai Company Limited.

Statement of Facts and Submissions

You have admitted the statement of facts as read out by the prosecutor and admitted the same. Your Counsel, Ms Ratu has filed comprehensive Mitigation which this Court has perused and considered.

Maximum Sentences

The maximum sentences for the charges are as follows. The maximum sentence for Theft (Counts 1 and 5) as prescribed under the Crimes Decree is 10 years imprisonment. The maximum sentence for falsification of documents (Counts 2 and 6) is 7 years imprisonment. The maximum sentence for using forged documents (Counts 3 and 7) is 10 years and the maximum for obtaining property by deception (Counts 4 and 8) is also 10 years.

The Tariffs

Tariff for simple larceny is 6 months to 12 months imprisonment. (Kaloumaira v State [2008] FJHC 63), Manasa Lesuma v State [2004] FJHC 490. It was held in Tikoitoga v State [2008] FJHC 44, HAM088.2007, 18th March 2008), that the tariff for larceny is 18 months to 3 years. Shameem J held in Vaniqi v State [2008] FJHC 348,HAA080.2008) that tariff for simple larceny with previous conviction of a felony to be over 9 months.

The tariff for fraudulent falsification of accounts ranges from 18 months to 3 ½ years imprisonment. (State v Bole, High Court of Fiji Criminal Case No. HAC0038S.2005S (4 October 2005).

The tariff for obtaining property using forged document range from 18 months to 5s ears imprisonment, with suspended sentences reserved for cases where there has been full restitution as indication of remorse. In a recent case of Etuate Suguturaga HAC043 of 2009L, Madigan tenced the offender to a te a term of 5 years imprisonment for obtaining six brush cutters by virtue of a forged cheque.

In State v Johnson [2011] FJHC 240; HAC123.2010L, Justice Madigan stated that “the maximum penalties for larceny by servant and for obtaining property by deception are fourteen yead 10 yearsyears respectively. These offences are akin to offences of fraud and forgery and as such would attract sentences of between three and six years (see Anand Kumar Prasad and Others &#8HAC 24 of 2010L).

In addition this Court has noted the following cases:

(a) Hu Jun Yun v State [2005] FJHC 93 HAA 0024/2005, where the Appellant appealed his sentence of 5 years for 11 counts of possession of forged document, 11 counts of uttering of forged document and 11 counts of obtaining money on forged document. The appellant had pleaded guilty to all counts of the offences and none of the $70,532.43 was recovered. The Learned Judge agreed with the State's position that tariff for these offences range from 18 months imprisonment to 4 years imprisonment with 4 years reserved for the worst type of offending. The Appellant succeeded in his appeal with a reduction of 3 years imprisonment.

(b) Lauzik Mukesh Chand v State [1999] FJCA 12; AAU0013/98, in dismissing the appeal, confirmed the sentence of High Court which imposed a sentence of 6 months imprisonment suspended for 1 year for 2 counts of forgery, uttering of a forged document and attempting to obtain a migration visa by virtue of a forged document. The Magistrates Court, on a plea of guilty had exercised powers under section 44 of the Penal Code, Cap 17 and discharged the Appellant. The State appealed and the order of discharge was quashed and a sentence of 6 months imprisonment was imposed suspended for 1 year.

(c) Vishwajit Prasad v State [1994] FJCA 19; AAU0023/93, the Court of Appeal quashed the sentence of 4 years imprisonment and imposed a sentence of 2 ½ years imprisonment on 9 counts of forgery, 9 counts of uttering a forged document and 9 counts of obtaining money on forged document.

(d) State v Chaudhary [2008] FJHC 22; HAC69/2007, in which the Court considered the above decisions and imposed 3 years imprisonment term for 1 count of Larceny, 8 counts of Forgery, 4 counts of Uttering of Forged Document and 4 counts of Obtaining Goods on Forged Document.

(e) State v Sintia [2010] FJHC 480. Justice Goundar had observed that the tariff for obtaining property using forged documents range from 18 months to 5 years imprisonment.

1st and 5th Counts – Theft

For these counts the Court takstarting point of 18 Months, for the guilty plea on the 1st available opportunity the CourtCourt gives 6 months discount and further 3 months discount for your mitigation. Your sentences for the 1st Count and 5th Count for theft is 9 months imprisonment.

2nd and 6th Counts – Falsification of Documents

For these counts the Court takes a starting point of 18 Months, for the guilty plea on the 1st available opportunity the Court gives 6 months discount and further 3 months discount for your mitigation. Your sentences for the 2nd Count and 6th Count for theft is 9 months imprisonment.

3rd and 7th Counts – using forged documents

For these counts the Court takes a starting point of 24 Months, for the guilty plea on the 1st available opportunity the Court gives 8 months discount and further 4 months discount for your mitigation. Your sentences for the 2nd Count and 6th Count for theft is 12 months imprisonment.

4th and 8th Counts – obtaining property by deception

For these counts the Court takes a starting point of 24 Months, for the guilty plea on the 1st available opportunity the Court gives 8 months discount and further 4 months discount for your mitigation. Your sentences for the 2nd Count and 6th Count for theft is 12 months imprisonment.

Whether to suspend your sentence or Not

This Court will now consider whether your sentence should be suspended as Section 26 (2) (b) of the Sentencing and Penalties Decree provides that a sentence which is below two years could be suspended by this court. Should I suspend your sentence? I take in to consideration the relevant case law in deciding your sentence.

In State v Kesi [2009] FJHC 145; HAC 024.2009 Justice Goundar referred to the case of Panniker v State Cr. App. No. 28 of 2000, where Justice Pathik adopted the English guidelines on the proper level of sentence to be imposed in dishonesty cases that are set out in the case of Barrick [1985] 81 Cr. App. R 78 at 82.

This Court has also considered what Justice Shameem stated in State v Raymond Roberts [2004] FJHC 51,:-

"The principles that emerge from these cases are that a custodial sentence is
inevitable where the accused pleads 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. However, where the accused is a first offender, pleads guilty and has made full reparation in advance of the sentencing hearing (thus showing genuine remorse rather than a calculated attempt to escape a custodian sentence) a suspended sentence may not be wrong in principle. Much depends on the personal circumstances of the offender, and the attitude of the victim."

Having noted the law on suspended sentences this Court notes from your mitigation that you are 19 years old, you are a student, the complainant has written stating that there was expression of remorse and that he wishes that you get back to "normal life". You pleaded guilty on the 1st available opportunity. This Court having noted these and will give you a chance. This Court will suspend your sentence. Your each imprisonment term for all the Counts is suspended for 18 months. 28 days to appeal.

Chaitanya Lakshman
Resident Magistrate
9th August 2012