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State v Chand [2016] FJMC 182; Criminal Case 219.2015 (28 September 2016)

IN THE RESIDENT MAGISTRATE’S COURT
AT SIGATOKA
CRIMINAL JURISDICTION

Criminal Case No: 219 of 2015

BETWEEN : THE STATE
AND : RAVIN CHAND

Before : TOMASI BAINIVALU [Mr]
RESIDENT MAGISTRATE

Date of Sentence: 28^th September, 2016

For Prosecution:- WPC 2972 ChanikaDevi
For Accused :- Mr Chand of LAC as Duty Solicitor

S E N T E N C E
The Offence and Facts

1. You,RavinChand,have pleaded guilty on your own accord without being forced neither induce; and in the presence of you LAC Counsel to the offence ofObtaining Financial Advantage by Deception:contrary to Section 318(1) of the Crimes Decree No. 44 of 2009.
   
2. Facts of the case revealed thaton the on the date and place [in question,[A-1]’s son namely ShalvinShivendra Kumar [A-2] aged 25 years Accounts Clerk of OlosaraSigatoka together with one Maureen Lata [A-3] aged 25 years Cashier of drasa dam, Lautoka was schooling at NZPTC when they meet [B-1] at Wishbone restaurant Suva and [B-1] introduce himself to other friends saying that he works at Suva Magistrate Court. Later [A-2] and [A-3] were together at the hostel when [B-1] came and they became good friends as they started to share their difficulties where [A-2] told [B-1] that his father died on a road accident then [B-1] asked whether they have claim the third party and [A-2] said no. [B-1] then said to [A-2] that he can help them in processing the paper to court as he knows the court system. [A-2] went and informed [A-1] his mother and both party agreed and [B-1] took documents and said that his fees was $5000.00 and told [A-1] to give 1/3 as deposit. [B-1] requested a deposit to proceed this matter in the court. [B -1] requested [A-3] if she has a bank account and [A-3] replied yes and then [B-1] requested if he could use the card for withdrawal of cash as the money will be deposited into [A-3]’s account by [A-1] on 11/11/2010, $1000.00 cash was deposited in account number 9802475062. Later [B-1] demanded cash for paperwork and [A-1] send the money through TMO cash $279.00. after that [B-1] used to make false promises to [A-1] that the case will be called in court when [A-1] used to call [B-1] he used give a false date to [A-1] to come and attend court but according to the cause list[A-1] name did not appear and [A-1] used to wait for her name to be called in Suva Court sometimes whole day but at no time her name was called.
   

Matter was reported to police by [A-1] and account statement was uplifted. Later [B-1] was interviewed under caution and admitted taking the money from [A-1] and he was charged for obtaining financial advantage by deception. [B-1] was bailed to attend court on 04/08/2015 at Sigatoka Magistrate’s Court. [B-1] has paid cash $1879.00 to [A-1] as confirmed by [A-1]

3. You pleaded guilty to the charge and court found you guilty as charged and convicted you accordingly.
   
4. You have 8 previous convictions which you had admitted in court this morning and the court also noted that four of the convicted cases were of similar in nature to the current charge.
   

The Law

5. The maximum sentence under section 317(1) for Obtaining Financial Advantage by Deception is punishable by ten (10) years imprisonment.
   
6. Section 317 and 318 of the Crimes Decree 2009 are related offences relating to Obtaining Financial Advantage by Deception. It provides that:

“s317.—(1) A person commits a summary offence if he or she, by a deception, dishonestly obtains property belonging to another with the intention of permanently depriving the other of the property.

Penalty - Imprisonment for 10 years.

Obtaining a financial advantage by deception

s318. A person commits a summary offence if he or she, by a deception, dishonestly obtains a financial advantage from another person. Penalty — Imprisonment for 10 years”.

7. The tariff under the Penal Code offence for obtaining money by deception was 18 months to three years (Arun v State[2009] HAA 55 of 2008, Ateca v State HAA 71 of 2002, Rukhmani v State HAA 056 of 2008).
   

8. In State .v. Atil Sharma [2010] FJHC 623; HAC122.2010L(7 October 2010) provides guidance as to the tariff for the offence of obtaining money by deception. At paragraphs 9 - 11 of the Sentence, His Lordship Justice Madigan stated the following:

“[9] Previously the maximum penalty for obtaining money by deception was five years, howevermaxi maximum penalty for this offence is now 10 years which shows the degree of seriousness that the legislature does have regard to the offence. frauds committed against unsuspecting and unsophisticated ated victims are particularly nefarious and it is for the Courts to protect such victims. While it is not for the Court to protect gullible persons, the impact on the victim must be considered. In these difficult times of unemployment, prospective employees will do anything they can to ingratiate themselves with persons who they perceive to be future employers, and it is quite understandable that this desperate lady would"lend" large sums of money to the accused.

[10] The tariff under the Penal Code offence for obtaining money by deception was 18 months to three years (Arun v State[2009] HAA 55of 2008, Ateca v State HAA 71AA 71 of 2002,RukhmanivStateHAA056of2008).

[11] Now that the penalty under the new Crimes Decree has doubled, then obviously this tariff needs to be revisited. 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”.

9. Section 4[1] of the Sentencing and Penalties Decree limits the purpose of sentencing an offender to the following grounds:

(a) to punish offenders to an extent and in a manner which is just in all the circumstances;

(b) to protect the community from offenders;

(c) to deter offenders or other persons from committing offences of the same or similar natures;

(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) to signify that the court and the community denounce the commission of such offences; or

(f) any combination of these purposes.

10. Section 4[2] of the decree outlines what a sentencing Court must consider when sentencing an offender:

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender's culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceeding at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(l) the offender's previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option.

11. I address my mind to the legal principles enunciated in the case of "DivendraBilavs State" 43 FIR 144. In this case it was held "each case must be assessed and evaluated in its true merits and that the best guidance as always is for the courts to grasp the essence of established general principles of sentencing and apply them based on the fundamental premise that a sentence should not be harsh and excessive or wrong in principle".

The Mitigating Factors

12. In mitigation, your Counsel told the court as follows:-

• That you are 35 years of age;
• Employed for Ami construction and looks after the general operation and earn $500.00 per week;
• Married and supports wife and family, remorseful
• You are sorry of your misconduct; and had paid the complainant the amount.
• Seek forgiveness and remorseful.
• It was also confirmed by prosecution as tendered in court yesterday that the accused fully restituted the complainant the sum of $2279.00 and this is a sign of genuine remorse.
  

The Aggravating Factors

13. The two complainants had totally relied on you and had entrusted you after you impersonate yourself to be working at the Suva court registry and can assist them, but you lured their trusts on you and demanded money and as a result all these deceptive attitude you showed to the two innocent victims, had brought them losing the sum of $1879.00 cash in total.This is a breach of trusts between the accused and the complainants and is an opportunist offending by the accused person.
14. I would also consider of what aggravates the offending, that after you have committed this offence between November 2010 to 31^st December 2011, and whilst it was still pending before this court, you had indulged yourself in committing two other similar offences to which the court in Nasinu had dealt with in the year 2013 and 2014 (refer to your previous convictions).

The Final Orders

15. After considering all the above, I decided to commence with an imprisonment term of sixteen [16] months; I add another twelve [12] months for the aggravating factors, leaving your interim term to serve is twenty eight [28] months.

I deduct three [3] months for the early guilty plea; further deduct six[6] months for other mitigating factors; and further deduct seven [7] months for the restitutions.

Therefore, your final sentence istwelve[12] months.

16. I have noted that the accused despite being warned by the court inSuvaon the offence of Forgery [October,2006] and Personation [February 2007] which were related to the facts in this case and of similar in nature, it seems that you had failed to take heed of the impact of past sentences imposed on you and continue to lure the innocent members of our society by committing such offences. And paying restitution is not to be accounted by this court as a getaway ticket fees from jail term, if the court feels that principle of deterrence must take precedence in sentencing you today.
17. Therefore, the above considerations has given me no compelling reasons to suspend the term above, therefore the accused person is hereby sentenced to serve the full twelve [12] months at the Correction Center.
18. I will further deduct the term accused had already served in custodyi.e 15 days, therefore the accused, Ravin Chand shall serve ELEVEN [11] MONTHS and FIFTEEN[15] DAYS at the Correction Center.
19. You have a right of appeal to the High Court within 28 days from todate.
    

..........................................................

TOMASI BAINIVALU[Mr]

RESIDENT MAGISTRATE

SIGATOKA