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State v Tuicaumia [2013] FJMC 273; Criminal Case 421.11 (28 June 2013)

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

Criminal Case No: 421/11

State

V

Bai Tuicaumia

Prosecution: Ms Waqabaca (FICAC)
Accused: Person – with Ms Lagilevu.

SENTENCE

1. Bai Tuicaumia you are now being sentenced for the offence of fraudulent conversion, contrary to Section 279 (1) (c) (i) of the Penal Code. Your co-accused has already been sentenced.
   

2. You have pleaded guilty to the charge. Sentencing submissions have been made and considered by this Court.

3. The maximum sentence prescribed under Section 279 (1) (c) (i) of the Penal Code for the offence of fraudulent conversion is imprisonment for 7 years.

4. This Court has noted the sentencing precedents in fraudulent conversion cases. In Shane Raymond Heatley v. The State HAA003/05, Pain J reviewed the cases for fraudulent offending and ae 6 of the the judgment said:

"These cases show that on a plea of guilty of obtaining money by fraud a sce of 4 years imprismprisonment is likely for tht sertype of case (see (see dict dicta in Vishwajit Prasad v. State App. 23 of 1993). However aggravating circumstances may warrant a grea#160;nce (Anil Knil Kumar v. R). If the amount involved ised is small a short period of imprisonment is appropriate (see Mara Kapaiwai v. R – albeit on a plea of guilty). Otherwise sentence0; imposed in thesethese reported cases have ranged from 15 months to 2½ years imprisonment."

In State v. Mahendra Prasad Cr. Action HAC009/02S, Justice Gates (as hn was) considered the sentesentence for an offender who stole $59,000 from his employer. The offender had fully compensated his employer, who had in turn, called for the charges to be withdrawn. A suspended term was imposed, his Lordship finding exceptionacumstances existed.

In State v. Sanjay Shankar Criminal Case No. HAC003/05S, a young employee defrauded his employer of $619,908.35. The State was able to freeze the account in which the money was kept. Justice Shameem imposed a sentence of 2 years imprisonment suepended for 2 years after finding the offender's extreme youth and restoration of money to the owner constituted exceptional circumstances.

5. Having noted the maximum sentence and the sentences imposed by the various Court's for similar offence this Court takes a starting point of 18 Months imprisonment for the offence you have committed. The aggravating factors are that your actions have denied genuine applicants opportunity develop their project for the benefit of themselves and their community and there has been no recovery of the $1900 converted by you.

6. In your mitigation you have stated the following:

- you are 47 years old.

- you are married with 1 son.

- currently a consultant with USP.

- pursuing MBA at USP.

- proposing to repay $1900.00

7. For the aggravating factors this Court adds 9 months and for the guilty plea and the mitigation this Court gives you 9 months discount, leaving with sentence of 18 months. This Court will now consider whether or not to suspend your sentence. In considering suspended sentence this Court wishes to see some restitution made and monies which have been lost by the complainant recovered. This Court will defer the imposition of the sentence (18 months) and give you 3 months to pay $1900.00. If after 3 months you do not pay $1900.00 you will serve 18 months in prison. If the sum is paid in 3 months time your sentence will then be suspended for 2 years.

8. This Court will review the payment after 3 months.

9. Bai Tuicaumia – your sentence is 18 months imprisonment, however you are given time to pay $1900 within 3 months, should you fail to pay the full sum within 3 months you will spend 18 months in prison. Should your fine be paid your term will be suspended for 2 years.

10. Any party that is not satisfied with the sentence of this Court has the right to Appeal to the High Court within 28 days from the date of this Sentence.

Chaitanya Lakshman
Resident Magistrate
28th June 2013