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State v Umota [2013] FJMC 362; Criminal Case 1393.2013 (6 August 2013)

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

Criminal Case No: 1393/13

STATE

V

JALE UMOTA

Prosecution: Sgt Jiten
Accused: In person.

SENTENCE

1. JALE UMOTA you are now being sentenced for the offence of Theft, contrary to Section 291 (1) of the Crimes Decree. You are charged as follows:
   

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

Particulars of offence (b)

JALE UMOTA, between the 8th day of November 2010 and 11th October 2011 at Kadavu, in the Central Division, being the Post Master of Daku Postal Agency, stole (appropriated) $81,163.30 the property of Post Fiji Limited.

2. You have represented yourself. You have pleaded guilty to the charge and admitted the facts which were as follows:
   

“On the 22nd day of March 2012, Post Fiji reported that between 1st July 2010 and 19th October 2011 there was a cash shortage at Daku Postal Agency in Kadavu. The matter was received at CID headquarters in Suva and Investigation was initiated.

Enquires were conducted at The Post Fiji where the statement of Luke Naceva, Acting Manager Audit, Post Fiji was recorded and documents was also retrieved. He stated that he led a team from the Audit section upon the request from the Retail Section, Post Fiji to carry out the audit at Daku Postal Agency.

Upon arrival they physically counted the cash on hand which was to the total amount of $10,592.85 dollars and total stamps on hand was $34.04. The cash was remitted to Vunisea Post Office and the stamps were taken to Suva. The daily cash book was not balance which was supposed to be done on daily basis and no other cash or stock found at the Postal Agency.

Luke Naceva and his team prepared a cash account for Daku Postal Agency from 1st October 2011 to 20th October 2011 which revealed a cash shortage of $36,970.68. The Audit team made a thorough check starting from July 2010 to 20th October 2011 and discovered that the total amount that was missing from Daku Postal Agency was $63,727.16.

Luke Naceva and his team had a discussion with Jale Umota (Accused), 22yrs, Post Master of Daku Village. Jale stated that he had accepted some Telegraphic Money Order (TMO) applications to be sent to other Post Office without receiving any cash. The TMO was sent on credit and on mutual agreement where the cash will be paid in a later dates.

Diama Vuruta, 31yrs, domestic duties of Gasele village, Kadavu statement were recorded. She stated that she has approached the accused twice to send TMO to Suva on credit, in which he did. She has also paid it back to the suspect.

The suspect was interview under caution where he admitted that he send TMO on credit on 26 occasions. It was all to the total amount of $81,163.30, this is including the fees. Also he had admitted that some cash was given to him as favours.”

3. The maximum sentence for theft under the Crimes Decree is imprisonment for 10 years.
   

4. In Ratusili v State [2012] FJHC 1249; HAA011.2012 (1 August 2012), Justice Madigan considered the tariff for Theft and stated:

“There have been various and varying decisions from this Court on the tariff for larceny (which offence has now been replaced by theft ).

In the case of Chand HAA30.2007 in a case of housebreaking and larceny, Mataitoga J. said that the tariff for larceny was between two to three years. Unfortunately the learned Judge did not explain this high tariff , nor did he make reference to the facts that pertained to that case.

In the case of Niudamu HAA28.2011, this Court held that the tariff for theft by a first offender should be between two to nine months.

The dicta of Shameem J. in Jone Saukilagi HAC21. 2004 are most helpful. Her Ladyship said this:

"the tariff for simple larceny on a first conviction is from two to nine months and on a second conviction a sentence in excess of nine months. In cases of larceny of large amounts of money sentences of 18 months to three years have been upheld by the High Court. (Sevanaia Via Koroi HAA31.2001). Much depends on the value of the money stolen and the nature of the victim and defendant. The method of stealing is also relevant."

From the cases then the following sentencing principles are established:

(i) for a first offence of simple theft the sentencing range should be between 2 and 9 months.

(ii) any subsequent offence should attract a penalty of at least 9 months.

(iii) Theft of large sums of money and thefts in breach of trust, whether first offence or not can attract sentences of up to three years.

(iv) regard should be had to the nature of the relationship between offender and victim.

(v) planned thefts will attract greater sentences than opportunistic thefts .

Although the higher tariff is apposite for breach of trust thefts of large amounts of money, thefts of sums of money from an employer by way of fraud come within the Barrick 81 CrApp R(S) 78 guidelines, as developed by this Court in Anand Kumar Prasad and ors [2011] FJHC 218.”

This Court has also noted the sentencing precedents in larceny by servant cases. Justice Gates (as he then was) held in State v Kumar [2005] FJHC 477; HAC0005T.2005S (7 October 2005)"The tariff for medium scale dishonesty offences is 2-3 years imprisonment. For the worst cases, bearing in mind the need worldwide to curb corporate misgovernance and white collar crime, the tariff could well extend to 6 years".
The tariff for the serious fraud offences is 18 months to 4 years. ("Savenanca Labavuka v FICAC (2009) FJHC 119, State v Isimeli Drodroveivali (Unreported) Suva High Court Cr. Case No HAC007.2002S,Panniker v State (2000)FJHC 156, Sate v Roberts (2004)FJHC 51,). Pain J in Shane Raymond Heatley v. The State (HAA0003.1995) held thatse hese cases show that on a pleguilty of obta obtaining money &by60;by fraud a sentence yea4 ionmenlikely for ther the most serious type of case (see dice dicta in Vishwajit Prasad v. State App. App. 23 of 1993). However aggravating circumstamay wt a gr &#160 sentence (Anil Kum R)v.If). If the the the amount involved is small a short period of imprisonment is appropriate (see Mara Kapaiwai v. R – albeit on a plea of guilty). Otherwise sentences imposed in theserted casescases have ranged from 15 months to 2 ½ years imprisonment."

me="Hg73">5. Having noted the maximum sentence ande and the the sentences imposed by the various Court's for similar offence this Court takes a starting point of 24 Months imprisonment for the offence you have committed. The aggravating factors are the serious breach of trust and the systematic manner in which the thefts have been perpetuated over that period of time. For the aggravating factors this court adds 6 months.

6. In your mitigation you have stated the following:

- you are 22 years old.

- single

- 1st offender.

- seek forgiveness.

For your mitigation this court gives you 4 months discount. You are a first offender, but that is expected for persons in trust and in position like yours. For your guilty plea on the first available opportunity this Court gives you 8 months discount.

7. Theft by persons in position of trust is prevalent in Fiji. It is imperative that potential offenders and the public at large understand that such action and breach of trust by persons in position of trust will be met with custodial sentence. For the foregoing reasons this Court will also not suspend your sentence. This Court also notes that no restitution has been made to-date.

8. JALE UMOTA you are now sentenced for committing the offence of Theft, contrary to Section 291 (1) of the Crimes Decree for a term of imprisonment of 18 Months.

9. 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

6th August 2013