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State v Deo [2012] FJMC 364; CF938.10 (18 December 2012)

IN THE RESIDENT MAGISTRATE’S COURT
OF SUVA

Criminal Case No. 938/2010

THE STATE

–v-

RAKESH DEO

For the State: Ms. Lathu
For the Accused: Mr. H. M. Rabuku (Present)

SENTENCE

1. RAKESH DEO you were charged with the offence of DISHONESTY CAUSING RISK OF LOSS: contrary to section 324 (2) (a) & (b) of the Crimes Decree No.44 of 2009 and the particulars of offence states as follows;

On the 26th & 27th day of May, 2010, at Suva in the Central Division, dishonestly caused a risk of loss to the Fiji Police Force by purchasing fuel using Total fuel card specifically allocated to Police motor bike registration number 208-Z and using the said fuel for his own purpose knowing or believing that there is a substantial risk of loss occurring.

2. You have pleaded not guilty and trial proceeded on 18th of November, 2011. Judgment was delivered on the 31st of July 2012 and then you were found guilty as to the charge against you.

3. Mitigating Submission:

The learned counsel who represented you submitted a written mitigation submission on your behalf which reads inter alia that you were “directed by your Superior and entrusted to repair the grounded bikes; which you have carried out. You admitted drawing fuel using the said fuel card from the service station and states that little did you know that your action amounts to recklessness under the law as you honestly strived tirelessly to meet the directive and command issued to you by your superior.”

Further your mitigation submission reads that you were totally aware that you may have breached certain rules and procedures but after assessing all options available you opted to go along and drew the fuel for as long as the bikes are repaired as directed. Despite the fact you report the drawing of fuel to your superior ASP Ashika and the fact that ASP Ashika did not report the same to ASP Mishra was totally beyond your control. Further it reads that, “You are 30 years old. You were recruited in the Police Force and loyally served the Police Forces through the ranks for the past 5 years. During these years you rose to the rank of sergeant and held the post of Director Cyclist. You have been terminated from the Police Force as the result of this allegation even before you are charged and brought to court”. You are married with two dependant daughters of 8 years old and 2 years old respectively. You are a sole breadwinner as your wife is unemployed and totally dependent on you. Your elder daughter is attending school and you pay her school fees for about $105.00 per academic year. You are currently struggling to provide basic necessities for your family including the rent of your flat for $280.00 per month. Further, the submission states that you have suffered enough after being un-ceremonially terminated from the Police Force without any disciplinary action despite your continuous loyal service. You have been punished enough until today and the consequences of your termination has been felt deeply by your loving and innocent daughters and wife that always look up to their dad in a proud manner and will always defend your innocent given the society pressure and peer pressure they have to live with until today. This is the very first time this charge was brought before the Courts of Fiji. You are remorseful for your acts and seek the Court’s full forgiveness for your reckless behaviour. You are a first offender and promised the court that you will not reoffend. You ask for the leniency of the Court.

Further, you submits and seek leniency in sentencing as you have suffered enough together with your wife and your two very young daughters in the eye of the public due to your termination and further stated that a custodial sentence will further detriment your very young family’s future.”

Furthermore, the learned counsel submits to consider and apply Section 45 (1) of the sentencing and Penalty Decree 2009. And dismisses the charge and not record a conviction.

4. Law

Section 324 (2) (a) & (b) of the Crimes Decree No.44 of 2009 stipulates that "A person commits a summary offence if he or she does anything with the intention of dishonestly causing a loss to another person."

Penalty — Imprisonment for 5 years.

(2) A person commits a summary offence if he or she-

(a). dishonestly causes a loss, or dishonestly causes a risk of loss, to another person; and

(b). person knows or believes that the loss will occur or that there is a substantial risk of the loss occurring.

The maximum sentence for Dishonesty causing a risk of a Loss under section 324 (2) (a) (b) of the Crimes Decree No. 44 of 2009 is a term of imprisonment for 5 years.

Tariff

The offence is new to Fiji and is provided under the Crimes decree. However, I would consider sentencing guidelines laid out in Dishonesty offences, for tariff and to take a starting point.

In the case of State v Kesi [2009] FJHC 145; HAC 024 of 2009 Justice Daniel Goundar cited Panniker v The state Cr App No 28 of 2000 stating that “Pathick J adopted the English guidelines on the proper level of sentence to be imposed in Dishonesty cases that are set out in the case of John Barrick [1985] 81 Cr App R78 at 82”. The guidelines stated in John Barrick (supra) are as follows;

(i) the quality and degree of trust reposed in the offender including his rank;

(ii) the period over which the fraud or the thefts have been perpetrated;

(iii) the use to which the money or property dishonestly taken was put;

(iv) the effect upon the victim;

(v) the impact of the offences on the public and public confidence;

(vi) the effect on fellow-employees or partners;

(vii) the effect on the offender himself;

(viii) his own history;

(ix) those matters of mitigation special to himself such as illness, being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.”

The tariff for this particular type of fraud offences fall within 18 months to 3 years. (State v. Saukilagi HAC 21 of 2004S).

5. Sentence

The learned defense counsel submits to consider and apply Section 45 (1) of the sentencing and Penalty Decree 2009 and seek to dismiss the charge and not to record a conviction as that will definitely diminish the future of the accused and his dependent young family. In this scenario, I draw my attention to criteria for a “non-conviction” in pursuant to section 45 (1) 15 and 16 of the Sentencing and Penalties Decree.

Section 45 (1) a court on being satisfied that a person is guilty of an offence may dismiss the charge and not record a conviction.”

“Section 15.(1) If a court finds a person guilty of an offence, it may, subject to any specific provision relating to the offence, and subject to the provisions of this Decree:

(i) Without recording a conviction, order the release of the offender on the adjournment of the hearing, and subject to the offender complying with certain conditions determined by the court;”

“Section 16. (1) In exercising its discretion whether or not to record a conviction, a court shall have regard to all the circumstances of the case, including

(a) the nature of the offence;
(b) the character and past history of the offender; and
(c) the impact of a conviction on the offender’s economic or social well-being, and on his or her employment prospects.”

In State v Nayacalagilagi (2009) FJHC 73; HAC165.2007 (17th March 2009) Goundar J set out the principles upon which the discretion to be exercised under sec.44 of CPC and held as follows;

“Subsequent authorities have held that absolute discharge without conviction for the morally blameless offender, or for an offender who has committed only a technical breach of the law (State v. Nand Kumar [2001] HAA014/00L; State v Kisun Sami Krishna [2007] HAA040/07S; Land Transport Authority v IsimeliNeneboto [2002] HAA87/02. In new para. In Commissioner of Inland Revenue v Atunaisa Bani Druavesi [1997] 43 FLR 150 HAA 0012/97, Scott J held that the discharge powers under section 44 of the Penal Code should be exercised sparingly where direct or indirect consequences of convictions are out of all proportion to the gravity of the offence and after the court has balanced all the public interest considerations.”

In State v David Batiratu Revisional Case HAR HAR001/2012 His Lordship Chief Justice authoritatively adopted the aforementioned principles and discussed extensively about the criteria his Lordship held that If a discharge without conviction is urged upon the court the sentence must consider the following questions, whether: (a) The offender is morally blameless. (b) Whether only a technical breach in the law has occurred. (c) Whether the offence is of a trivial or minor nature. (d) Whether the public interest in the enforcement and effectiveness of the legislation is such that escape from penalty is not consistent with that interest. (e) Whether circumstances exist in which it is inappropriate to record a conviction, or merely to impose nominal punishment. (f) Are there any other extenuating or exceptional circumstances, a rare situation, justifying a court showing mercy to an offender”.

Furthermore his Lordship explained that “In State v Chand [1998] FJHC 247; [1998] 44 FLR 62 (14 May 1998) it has stated that "discharge is the most lenient sentence that can be imposed for an offence. Indeed it is recognized by the wording of the section as being no punishment at all. Even a conditional discharge only requires that the offender commits no offence during a stipulated period - something that should not be a burden as it is what a responsible citizen is expected to do. A discharge is sparingly given. The discretion should be exercised with great care and only in "very exceptional circumstances" (Police v McCabe [1985] 1 NZLR 361). It is, for example, appropriate in such cases as where the offence is trivial or only technical (R v Kavanagh - Court of Criminal Appeal (England) 16th May 1972), where the accused is morally blameless (R v O'Toole - (1971) 55 Cr App R 206) or where the accused has suffered in a manner that is wholly disproportionate to the offence committed (R v Kavanagh (supra) and Police v Roberts [1991] 1 NZLR 205).( emphasis added)".

When considering above criteria and the nature of the offence committed by the accused, the application for a not recording a conviction cannot be granted. Without doubt his will have an effect on your personal life and family. However it is a consequence of your own conduct.

I light of general principle of sentencing under Section 15 (3) and objective of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree, and considering tariff and all the factors in this case, I select 20 months as a starting point. At the time of question you were a police personnel holding the rank of sergeant. You've breach the trust bestowed on you by Fiji Police Force and seniors and you have not offered any restitution. In view of aggravating factors I increase 07 month, to reach the period of 27 months. The mitigating factors are your personal and family circumstances. I reduce 09 months to reach the period of 18 months. You are a first offender, therefore you are entitle for further deductions for your previous clear records, I reduce 06 months. Now your sentence reached for 12 months (01 year) imprisonment period.

I have also considered your mitigation and personal background and sentence submissions by the State. Your mitigation submission reads that "you have been terminated from the Police Force as the result of this allegation even before you are charged and brought to court, as a result you have suffered enough and been punished enough until today. The consequences of your termination have been felt deeply by your daughters and wife". Though I did not notice sufficient remorse from you the mitigation submission reads that you are remorseful for your acts. I trust that you have learned your lesson after been terminated from the Police Force.

I note that you are a first offender and I draw my attention to the case of Pita Seruvatu v State Crim. App N0.85 of 1992 where the leaned Justice Jesurathem stated that "It has been emphasized by the Court that when the accused is a fist offender it should be the endeavor of the sentence to keep him away from prison as far as possible". Further, in Akeai Ranuku v The State Crim.App HAA 009 of 2009 Justice Daniel Goundar stated that "It is trite principle of sentencing that every effort should be made to keep young and first time offenders away from prison..."

At the same time I draw my attention to the case of Moses Nariva v State, Cr. App. HAA 148/2005) where her ladyship Justice Shameem held that "The courts must always rehabilitate the young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non- custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment.

According to section 26 (2) (b) of the Sentencing and Penalties Decree sentence which is below two years could be suspended by this court.

In light of above discussed factors and I am of the view that it is just in the circumstances to suspend your sentence, enabling you to reform and rehabilitate away from a custodial sentence.

Accordingly, I suspend your sentences 12 months imprisonment period for 02 years for the offence of DISHONESTY CAUSING RISK OF LOSS: contrary to section 324 (2) (a) & (b) of the Crimes Decree No.44 of 2009.

Should you commit any crime during the period of 3 years and found guilty by the court you are liable to be charge and prosecute for an offence in pursuant to section 28 of the Sentencing and Penalties Decree.

28 days to appeal

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Lakshika Fernando
Resident Magistrate

On this 18th day of December 2012.