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State v Managreve [2012] FJMC 6; Criminal Case 1679.2011 (7 February 2012)

IN THE MAGISTRATE'S COURT AT SUVA
CRIMINAL DIVISION

Criminal Case No. 1679/11

THE STATE

V

SUSAU ROMANO MANAGREVE

For the State: PC Yasin Ali
For the Accused: In person

SENTENCE

Susau Romano Managreve you have been convicted as charged on your guilty plea of the following offences: -

17 counts of Larceny contrary to section 259 and 262 of the Penal Code

17 counts of Uttering contrary to section 343 (1) of the Penal Code

17 counts of Obtaining Money for Personal Benefit contrary to section 309 (a) of the Penal Code.

The facts are that in the period from 2006 to 2009 you were employed by Marist Brother's High School as its Acting and later substantive Principal. In that period you had access to the Marist Brothers High School Sports Centre account namely Westpac Bank account number 9800418056.

Between the 8th of March 2006 and the 7th of April 2009 you systematically withdrew funds from this Westpac account on 17 occasions. On each of the 17 occasions you unlawfully took a cheque leaf for Westpac account number 9800418056 and wrote out a sum to be withdrawn. You then uttered the forged cheque and you unlawfully used the monies withdrawn for your personal benefit.

These unauthorised withdrawals were only discovered after a change of management at the school and the matter was then reported to the police. The total amount that you took in this manner amounted to $19, 227.16 (nineteen thousand two hundred and twenty seven dollars and sixteen cents.)

You have advised the Court that you understand all of the charges that have been laid against you and that you have received all the disclosures from the State. You have also waived your right to legal representation and you have pleaded guilty to each of the 51 counts that have been laid against you.

After confirming the summary of the facts the Court is satisfied that your guilty plea is freely made and is unequivocal. You are therefore convicted as charged on each of the 51 counts against you.

You are a first offender and you have offered a written plea in mitigation. You are 55 years of age, married with 4 daughters. You are now retired and you are a resident of 12 Lavena Road, Nabua.

When you first appeared you advised the Court that under the previous management of the school you had been authorised to draw on funds from the said account to supplement your salary as you were not being paid for the post of Principal even though you were acting in that post. You submit that this was the arrangement reached between you and the previous management to secure your services at the school. You also state that when new management took over, you had explained the arrangement to them however they did not accept these arrangements and reported the matter to the police.

You have repaid the full amount of $19, 227.16 (nineteen thousand two hundred and twenty seven dollars and sixteen cents) and this is evidenced by Receipt No. 0209752 issued by the Fiji Marist Brothers Board of Education dated 21st March 2011.

You have also cooperated fully with the police and you have pleaded guilty at the earliest opportunity.

The State has filed sentencing submissions and recommends a deterrent sentence for you with a sentence that lies at the higher end of the tariff. The State identifies the following aggravating factors:

(a) The substantial amount involved

(b) The period in which the offending took place (3 years)

(c) The high position of trust and the breach of the trust reposed in you as Principal of the School.

The State has relied on the authority of Gerald Panniker –v- The State [2000] Criminal Appeal No. 28 of 2000 and the case of The State –v- Raymond Roberts [2004] FJHC 51. These authorities discuss the sentencing principles for such offences and also guidelines in sentencing for such offences.

The State recommends a custodial sentence for you.

In sentencing you the Court notes your previous good conduct and unblemished record as a first offender. It is also the law that for offences of breach of trust such as these, the fact that an Accused person is a first offender carries very little weight. This is because it is the very fact of your unblemished record and previous good conduct that makes the breach of trust more egregious in these offences.

In this case you have fully cooperated with the police and you have also repaid every single cent that you took unlawfully. You have also entered a guilty plea at the earliest opportunity and this is your first offence.

Your conduct is indicative of your remorse and the restitution means that the school has not suffered any monetary loss.

In the Roberts case cited above, the Court stated as follows: -

"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 custodial 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."

In this case you are a first offender and charges against you were filed on the 14th of November 2011. The money was repaid on the 21st of March 2011 therefore full restitution was made long before any charges were laid. You have also admitted all the charges at the first available opportunity.

The offences are serious and the breach of trust is also serious. The monies were in an account called the Marist Brothers High School Sports Centre and you unlawfully used these monies which were earmarked for something else. Whatever your arrangements were with the former management of the school, you ought to have known that the conduct that you were embarking on would not end well for you.

In the circumstances a sentence of imprisonment is appropriate as any other sentence would not be commensurate with your actions in this case.

The offence of Larceny under the Penal Code attracted a maximum sentence of 5 years imprisonment.

The offence of Uttering a forged document under the Penal Code attracted a maximum sentence of 7 years imprisonment.

The offence of Obtaining money by false pretences under the Penal Code attracted a maximum sentence of 5 years imprisonment.

The tariff for the above offences ranges from 18 months to 3 years imprisonment.

In your case the aggravating factors are the period of offending and the sums stolen. The other major aggravating factor is the serious breach of the trust reposed in you as the principal of Marist Brothers High school in committing these offences.

The mitigating factors in your favour include your status as a first offender, your early guilty plea and the full restitution made meaning that the school has not lost any monies as a result of your actions.

In sentencing you for each offence I take a starting point of 2 years imprisonment. For the aggravating factors identified above I add 6 months to your sentence. For your guilty plea, cooperation with the police and earlier full restitution I deduct 10 months from your sentence.

For your status as a first offender I further deduct 2 months from your sentence.

Susau Romano Managreve for each of the 51 counts which you have been convicted of, I sentence you to 18 months imprisonment, each term to be served concurrently.

I have considered the circumstances of this case – a case which has attracted particular notoriety because of the profile of the complainant – a prominent boys' school in Suva with a lot of stakeholders with a keen interest in the outcome of this case. By the same token I also consider your personal circumstances – you have lost your employment and no doubt your reputation has suffered as a result of your own actions. At your age it is also highly unlikely that you will find any gainful employment anywhere else.

In this case you fit the criteria set out in the case of Roberts above in that you are a first offender, you have entered a guilty plea at the earliest opportunity and you have also offered full restitution and repaid all the sums that you stole.

In the circumstances nothing further will be achieved by a custodial sentence and I find it just in the circumstances to suspend your sentence for 2 years.

Susau Romano Managreve for Counts 1 to 51 for which you stand convicted you are sentenced to 18 months imprisonment, each term to be served concurrently. This sentence is suspended for 2 years.

The clerk will advise you of the suspended sentence and the consequences of reoffending.
28 days to appeal

Usaia Ratuvili
Chief Magistrate

7th February 2012