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State v Narayan [2016] FJMC 109; Criminal Case 1197.2012 (4 August 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: - 1197/2012

STATE

V

PRATISHNA NARAYAN

Counsel : Ms.J .Prasad for the State

Mr.N.Shivam and Ms.J.Lal for the Accused

Date of Sentence : 04^th of August 2016

SENTENCE

1. PRATISHNA NARAYAN, you were convicted after a hearing to 07 counts of Theft, contrary to section 291(1) of the Crimes Decree No 44 of 2009.
2. During the hearing the following facts were proved by the prosecution.
   1. Between the 11th day of November 2011 and the 14th day of November 2011 you dishonestly appropriated $3,800.00 in cash belonging to Morris Hedstrom with the intention of permanently depriving Morris Hedstrom of the said sum.
   2. Between on or about the 14th day of December 2011 at Suva in the Central Division you dishonestly appropriated $3,114.60 in cash belonging to Morris Hedstrom with the intention of permanently depriving Morris Hedstrom of the said sum.
   100. On or about the 29th day of December 2011 you dishonestly appropriated $5,916.00 in cash belonging to Morris Hedstrom with the intention of permanently depriving Morris Hedstrom of the said sum.
   4. On or about 3rd day of January 2012 you dishonestly appropriated $4,180.55 in cash belonging to Morris Hedstrom with the intention of permanently depriving Morris Hedstrom of the said sum.
   5. Between the 4th day of January 2012 you dishonestly appropriated $5,700.00 in cash belonging to Morris Hedstrom with the intention of permanently depriving Morris Hedstrom of the said sum.
   6. On or about the 10th day of February 2012 you dishonestly appropriated $1,925.00 in cash belonging to Morris Hedstrom with the intention of permanently depriving Morris Hedstrom of the said sum.
   7. On or about the 21st day of February 2012 you dishonestly appropriated $5,925.00 in cash belonging to Morris Hedstrom with the intention of permanently depriving Morris Hedstrom of the said sum.
3. You were working as a Wholesale supervisor at that time and sales reps used to bring the monies to you with delivery copies. You collected the amounts and signed the cash book, but handed over only part of the money with cash summaries and in some instances kept the full amount. You also prepared unauthorized credit notes to balance the funds and stole a total of $30,561.15 during this period. There was no restitution by you up to now.

The Law and Tariff

4. Maximum penalty for Theft under the Crimes Decree is 10 years imprisonment.
5. The tariff was outlined in the case of Ratusili v State [2012] FJHC 1249; HAA011.2012 (1 August 2012) where his Lordship Justice Madigan said :

(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.

6. In the House of Lords decision of John Barrick (1985) 81 Cr. App. R 78 at 82 the Lord Chief Justice Farquharson laid down the guidelines that need to be considered in a breach of trust offence and they are :

(i) The quality and degree of trust reposed in the offender including his rank;

(ii) The period over which the fraud or 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;

7. These guidelines have been adopted in Fiji in various decisions .State V Munesh Chand [2011] FJHC HAC 122 of 2009 (22 March 2011),State V Akanisi Panapasa[2011]FJHC 34 of 2009(3 November 2011).
8. In State v Roberts [2004] FJHC 51; HAA0053J.2003S (30 January 2004) her Ladyship Justice Shameem said :

“In Barrick, the appellant, who had held a position of trust in a finance company, had stolen £9000. He pleaded not guilty and was found guilty. He was sentenced to two years imprisonment. On appeal he asked for suspension of his sentence. The Court of Appeal held that in breach of trust cases, a term of immediate imprisonment was inevitable except in exceptional circumstances. Relevant matters were the quality and degree of trust abused, the period of defrauding, the use to which the money was put, the effect on the victim, the impact on the public, the effect on the offender, any delay between discovery and trial, and the offender’s personal history. The Court found that the 2 year term imposed was too lenient saying that a term of up to 18 months imprisonment was appropriate for the theft of amounts up to £10,000, 2 to 3 years imprisonment for the theft of amounts between £10,000 and £50,000, and terms of 3½ to 4½ years for thefts of more than £50,000.

In Panniker, Pathik J adopted these guidelines in the case of a 3½ year term imposed on an offender who pleaded guilty to the theft of $49,348.82 from his employer. He had maintained a not guilty plea from August 1999 to November 1999 when he pleaded guilty. There was no attempt at restitution until the day before the appeal hearing when the sum of only $10,000 was paid by the appellant’s brother. Pathik J considered Vishwajit Prasad v. State Crim. App. No. 23 of 1993 (4 years reduced to 2½ years) in which almost half of the amount stolen was paid back before the hearing, and State v. Helen Broadbridge Crim. Case No. 31 of 1997 (2½ years imprisonment for the theft of $24,147.55). His Lordship reduced the term for the restitution of $10,000 to one of 3 years imprisonment.

In none of these cases had full and prompt restitution been made. In State v. Mahendra Prasad Gates J considered sentence in a case very similar to this one. In that case the accused pleaded guilty on 12 counts of larceny by servant. The total stolen was $59,000. On discovery, he co-operated with the police and confessed to the stealing. He transferred his house and car to his employer to compensate him for the loss of the money and his employer accepted this and tried to persuade the DPP to withdraw charges. In total the accused paid back the money he had used and the money he said he had given to another employee. Gates J referred to a number of English authorities and to State v. IsimeliDrodroveivali Cr. Case No. HAC 007/02S and found that in all cases, custodial sentences had been imposed, and that the tariff for the theft of $59,000 should lead to a sentence of imprisonment between 2 to 3 years. He distinguished those cases where the accused had pleaded not guilty or had not restored the money stolen and sentenced the accused to 2 years imprisonment suspended for 3 years.

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.

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; finally, any help given by him to the police.”

9. Based on the above judicial precedents, I find that the tariff for this offence would be between 2 to 3 years imprisonment when there is breach of trust is involved.
10. Selecting the starting point I have been guided by Laisiasa Koroivuki v the State ( Criminal Appeal AAU 0018 of 2010) where the Fiji Court of Appeal discussed the guiding principles for determining the starting point in sentencing and observed :

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range".

11. The offences you committed are not simple opportunistic theft and can be defined only as white collar crime. This term was first defined by sociologist Edwin Sutherland in 1939 as "a crime committed by a person of respectability and high social status in the course of his occupation". You were also fully responsible for all these offending.
12. Hence considering the gravity of offending and your culpability, I select 24 months as the starting point for each count.
    

Aggravating factors

13. The following are considered as aggravating factors in this case.
    1. These offences were well planned by the accused;
    2. Gross breach of trust on the part of the accused. She was supervisor of the Wholesale department and by committing these offences she clearly breached the trust of her employer (Carpenters group).
    100. She was exposing her sales reps and clerks to criminal prosecution by making unauthorized amendments to delivery copies and credit notes.
14. For these serious aggravating factors, I add 16 months to reach 40 months imprisonment for each count.

Mitigating factors

15. The defence has submitted number of case authorities to vindicate a non-custodial sentence for the accused ( State v JaleUmota[2013]FJMC 362, State v Semi Lewnirabe FJMC 28,State v Katovata&Pio [2015]FJMC 83 and State v Paula Bete [2013] FJHC 415).
16. Apart from State v Jale Umota(supra) and State v Katovata&Pio (supra) other cases can be distinguish from present case because in those cases there was no breach of trust involved like in this case . Even in State v JaleUmota(supra) and State v Katovata&Pio(supra)the accused pleaded guilty early which again make it different from this matter where you denied all these offences and fought to the last minute . Therefore I do not find the case authorities submitted by the defence relevant to this case.
17. The learned defence counsel in their comprehensive mitigation also submitted the following :
    1. The accused is a first offender;
    2. She is married with 2 young children aged 11 and 07 years old;
    100. The youngest son is sickly and suffers from Eczema (a medical report of the child was attached).
    4. Children are sharing close bond with the accused and she is looking after them;
    5. The accused is business woman and manages Tulip Beauty and Fashion which is the main source of income.
18. In a breach of trust offence, I do not think much weight can be given to the past good behavior of an accused. Generally the employer would be selecting a person with a good character to handle the responsibilities. Be that as it may, to be fair to the accused I would consider it also as a valid mitigating factor in this case with her personal mitigation.
19. For these mitigating factors, I deduct 10 months to reach 30 months imprisonment for each count.
20. Pursuant to section 24 of the Sentencing and Penalties Decree a court has to deduct the remand period of an accused from the sentence. But throughout this case you were remanded for only 07 days and I have included that also in my deduction.
21. PRATISHNA NARAYAN, now your final sentence for each count of Theft is 30 months imprisonment. In deciding whether these sentences for each count to be consecutive or concurrent it is relevant to consider the totality principle as discussed by DA Thomas in Principles of Sentencing ... at pp 56–57 :

“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”

22. Hence I order these sentences to be concurrent.
23. You were given the responsibility by your employer to supervise the Wholesale department of MHCC. During the hearing it was also shown that you rose through the ranks to your position. You were supposed to be a role model for other employees. By committing these offences you betrayed the trust of your employer. You can’t blame anyone else but yourself for the predicament you are facing today and need to be given a severe sentence to denounce your behavior and as a warning to others not to indulge in similar offences.
24. PRATISHNA NARAYAN, you are sentenced to 30 months imprisonment for each count of Theft to be served concurrently with a non-parole period of 20 months.
25. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate