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State v Tarusila [2013] FJMC 354; Criminal Case 819.2010 (25 September 2013)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: - 819/2010

STATE

V

TARUSILA MAFI

For Prosecution : - Ms. J. Prasad – DPP counsel
Accused : - Mr. Tawake – Legal Aid

SENTENCE

1. TARUSILA MAFI, you were convicted by the Court after a trial for 5 counts of Larceny by Servant contrary to section 274(1) of the Penal Code.
   
2. It was revealed in the trial that whilst being employed as an Account Clerk and office assistant of Rups Investment Ltd on five different occasions you stole money to the total value of $82,189.35.
   
3. Both parties have filed their respective submissions in this case and I have considered them also for my sentence.
   

LAW AND TARIFF

4. The maximum penalty for Larceny by servant under the old Penal Code is 14 years imprisonment.
   
5. The English Guidelines on the proper level of sentence to be imposed in dishonest cases are set down in the case of John Barrick [1985] Cr. App and this was adopted in Fiji too by His Lordship Justice Pathik in Panniker v State. The guidelines are as follows:
   
   • (i) the quality and degree of trust reposed in the offender including his ranks;
   • (ii) the period over which the fraud of 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;
   • (x) any help given by him to the police.
     
6. In State v Raymond Robert [2004] FJHC 51, Madam Shameem stated:
   

"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 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".

7. In State v Mahendra Prasad [2003] FJHC 320 His Lordship Justice Gates considered the case of Barrick and sated at paragraph 26:
   

"The court confirmed a tariff of between 2 to 3 years imprisonment for the medium range offences here where sums of between £10,000 [£30,000] to £50,000 [F$150,000] were involved. It would not be usual to suspend the sentence in cases of serious breach of trust. A sentence of 2 years immediate imprisonment was upheld".

AGGRAVATING FACTORS

8. By committing these offences you breached the trust placed by your employer. The total amount stolen is $82,189.35, a substantial amount. These were pre meditated actions on your part and in the trial you tried to shift the blame on to your work mates.
   

MITIGATING FACTORS

9. Now I consider your mitigating factors as submitted by the learned counsel from the Legal Aid. According to that you are 30 years old and have a 5 year old child. You have no previous convictions. The learned counsel also submitted that you are remorseful of what has happened.
   
10. Foe each count I select 02 years as my starting point and add further 02 years for aggravating factors. Deduct 01 year for mitigating factors to come to 03 years.
    
11. Now your final sentence for each count is 03 years imprisonment and this cannot be suspended by this Court.
    
12. Considering the Totality Principle I order you to serve this 03 years concurrent to each other.
    
13. In pursuant to Section 18(1) of the Sentencing and Penalties Decree I also impose 02 years as non parole period in this case.
    
14. Accordingly you are sentenced to 03 years imprisonment for the Offence of Larceny by Servant with a non parole period of 02 years.
    
15. 28 days to appeal
    

25th September 2013

H.S.P.Somaratne
Resident Magistrate