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State v Tehillah [2013] FJMC 390; Criminal Case 1707.2013 (30 October 2013)

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

Criminal Case No: 1707/13

State

V

Gloriyah Tehillah

Prosecution : Sgt Jiten
Accused : Present – In Person

Sentence

Introduction

Gloriyah Tehillah, you are now being sentenced for Obtaining Financial Advantage By Deception, contrary to Section 318 of the Crimes Decree. The Particulars of Offence are as follows:

First Count

Statement of offence (a)

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 (1) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

GLORIYAH TEHILLAH, on the 28th day of August 2011 at Suva in the Central Division, by deception, dishonestly obtained $13.67 cash by overcharging the Money Link Credit Card Customer.

Second Count

Statement of offence (a)

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 (1) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

GLORIYAH TEHILLAH, on the 5th day of September 2011 at Suva in the Central Division, by deception, dishonestly obtained $5.12 cash by overcharging the Money Link Credit Card Customer.

Third Count

Statement of offence (a)

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 (1) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

GLORIYAH TEHILLAH, Between 1st day of October 2011 to 31st day of October 2011, at Suva in the Central Division, by deception, dishonestly obtained $40.00 cash by overcharging the Money Link Credit Card Customer.

Forth Count

Statement of offence (a)

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 (1) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

GLORIYAH TEHILLAH, Between 1st day of November 2011 to 31st day of November 2011, at Suva in the Central Division, by deception, dishonestly obtained $112.16 cash by overcharging the Money Link Credit Card Customers.

Fifth Count

Statement of offence (a)

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 (1) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

GLORIYAH TEHILLAH , Between 1st day of December 2011 to 31st December 2011,at Suva in the Central Division, by deception, dishonestly obtained $170.10 cash by overcharging the Money Link Credit Card Customer.

Sixth Count

Statement of offence (a)

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 (1) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

GLORIYAH TEHILLAH, Between 1st day of January 2012 to 31st of January 2012 at Suva in the Central Division, by deception, dishonestly obtained $120.00 cash by overcharging the Money Link Credit Card Customer.

Seventh Count

Statement of offence (a)

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 (1) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

GLORIYAH TEHILLAH, Between 1st day of February 2012 to 28th of February 2012 at Suva in the Central Division, by deception, dishonestly obtained $30.00 cash by overcharging the Money Link Credit Card Customer.

Eighth Count

Statement of offence (a)

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 (1) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

GLORIYAH TEHILLAH, on the 1st of March to 31st of March at Suva in the Central Division, by deception, dishonestly obtained $22.60 cash by overcharging the Money Link Credit Card Customer.

Ninth Count

Statement of offence (a)

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 (1) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

GLORIYAH TEHILLAH , Between 1st of April to 30th of April 2012 at Suva in the Central Division, by deception, dishonestly obtained $38.40 cash by overcharging the Money Link Credit Card Customer.

Tenth Count

Statement of offence (a)

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 (1) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

GLORIYAH TEHILLAH, Between 1st of May 2012 to 31st of May 2012 at Suva in the Central Division, by deception, dishonestly obtained $129.47 cash by overcharging the Money Link Credit Card Customer.

Eleventh Count

Statement of offence (a)

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 (1) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

GLORIYAH TEHILLAH, Between 1st of June 2012 to 30th June 2012 at Suva in the Central Division, by deception, dishonestly obtained $331.88 cash by overcharging the Money Link Credit Card Customer.

Twelfth Count

Statement of offence (a)

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 (1) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

GLORIYAH TEHILLAH, Between 1st of July 2012 to 31st of July 2012 at Suva in the Central Division, by deception, dishonestly obtained $441.80 cash by overcharging the Money Link Credit Card Customer.

Thirteenth Count

Statement of offence (a)

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 (1) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

GLORIYAH TEHILLAH, Between1st of August 2012 to 31st of August at Suva in the Central Division, by deception, dishonestly obtained $450.03 cash by overcharging the Money Link Credit Card Customer.

Fourteenth Count

Statement of offence (a)

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 (1) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

GLORIYAH TEHILLAH, Between 1st of September 2012 to 30th of September 2012 at Suva in the Central Division, by deception, dishonestly obtained $400.11 cash by overcharging the Money Link Credit Card Customer.

Fifteenth Count

Statement of offence (a)

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 (1) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

GLORIYAH TEHILLAH, Between 1st of October 2012 to 31st of October 2012 at Suva in the Central Division, by deception, dishonestly obtained $461.27 cash by overcharging the Money Link Credit Card Customer.

Sixteenth Count

Statement of offence (a)

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 (1) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

GLORIYAH TEHILLAH , Between 1st of November 2012 to 31st of November 2012 at Suva in the Central Division, by deception, dishonestly obtained $621.11 cash by overcharging the Money Link Credit Card Customer.

Seventeenth Count

Statement of offence (a)

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 (1) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

GLORIYAH TEHILLAH, Between 1st of December 2012 to 31st of December 2012 at Suva in the Central Division, by deception, dishonestly obtained $799.48 cash by overcharging the Money Link Credit Card Customer.

Eighteenth Count

Statement of offence (a)

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 (1) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

GLORIYAH TEHILLAH, Between 1st of January 2013 to 31st January 2013 at Suva in the Central Division, by deception, dishonestly obtained $245.26 cash by overcharging the Money Link Credit Card Customer.

Nineteenth Count

Statement of offence (a)

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 (1) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

GLORIYAH TEHILLAH, Between 1st of February 2013 to 28th of February 2013 at Suva in the Central Division, by deception, dishonestly obtained $640.23 cash by overcharging the Money Link Credit Card Customer.

Twentieth Count

Statement of offence (a)

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 (1) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

GLORIYAH TEHILLAH, Between 1st of March 2013 to 31st of March 2013 at Suva in the Central Division, by deception, dishonestly obtained $852.92 cash by overcharging the Money Link Credit Card Customer.

Twenty First Count

Statement of offence (a)

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 (1) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

GLORIYAH TEHILLAH, Between 1st of July 2013 to 31st of July 2013 at Suva in the Central Division, by deception, dishonestly obtained $726.99 cash by overcharging the Money Link Credit Card Customer.

Twenty Second Count

Statement of offence (a)

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 (1) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

GLORIYAH TEHILLAH, Between 1st of August 2013 to 31st of August 2013 at Suva in the Central Division, by deception, dishonestly obtained $352.43 cash by overcharging the Money Link Credit Card Customer.

You waived right to legal counsel and pleaded guilty on your own free will. You admitted the statement of facts. You have submitted your mitigation which this Court has considered.

The Maximum Penalty

The Maximum Penalty for Obtaining Financial Advantage By Deception, contrary to Section 318 of the Crimes Decree is 10 years imprisonment.

The Tariff

Previously under the Penal Code the maximum punishment for the offence of Obtaining Money by False Pretence was 5 years. Now the Crimes Decree 2009 has maximum punishment as 10 years imprisonment. In State v Atil Sharma Criminal Case No. HAC 122 of 2010L, Justice Madigan has set the tariff for obtaining Financial Advantage by Deception as between 2 years to 5 years.

Justice Madigan further stated and this Court notes: "...The tariff for obtaining a pecuniary advantage by deception should now be between 2 years and 5 years with 2 years being reserved for minor offences with little and spontaneous deception . The top end of the range will obviously be reserved for fraud of the most serious kind where a premeditated and well planned cynical operation is put in place."

Starting Point

In view of the above-mentioned observations and the relevant provisions of the Sentencing and Penalties Decree. This Court takes 2 years (24 months) as an appropriate starting point (for each Count) for the offence that you have committed.

Guilty Plea

For your guilty plea this Court will give you 8 months discount. You have saved everyone's time with an early guilty plea. You are now to serve 16 months) imprisonment.

Mitigation

For your total mitigation this Court gives you a further 6 months discount.

Gloriyah Tehillah your sentence for Obtaining Financial Advantage By Deception, contrary to Section 318 of the Crimes Decree is 10 months imprisonment.

This Court has carefully considered the issue of suspending your sentence. In considering it this Court has noted the comments of Justice Shameem in State v Raymond Roberts ( HAA0053 of 2003S), where Shameem J held that " the principles that emerge from these cases are that a custodial sentence is inevitable where the accused pleaded 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".

Gloriyah Tehillah having noted the law on suspended sentences this Court notes that you are not a young person, however you are a 1st Offender. Full restitution has not been made. The total sum involved is $7005.04. This Court notes that you have spent about 3 weeks in custody. Having taken consideration of the fact that you have 7 chidlren ranging from 13 years to 5 months, this Court will partially suspend your sentence. The message must go out to the members of our community and people who think like you, that anyone who is deceitful and obtains financial advantage by deception will not get any mercy from the Court and get immediate custodial sentence.

Gloriyah Tehillah your sentence for each count of Obtaining Financial Advantage By Deception, contrary to Section 318 of the Crimes Decree is 4 months imprisonment. The balance period of 6 months is suspended for 18 months (meaning of suspended term explained to accused). For each count you will serve 4 months concurrently and balance term will be suspended concurrently as well.

4 month for each count (concurrent)

Balance 6 months suspended for 18 months (concurrent).

Right of Appeal

You have 28 days to appeal to the High Court.

Chaitanya Lakshman
Resident Magistrate

30/10/2013