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State v Chand [2016] FJMC 199; Criminal Case 1562.2015 (26 September 2016)

IN THE MAGISTRATE’S COURT of Fiji

AT SUVA

Criminal Case No 1562/15

STATE

-v-

AMIT AVINESH CHAND

SENTENCE

1] The following charge was read out to you and understanding the contents you pleaded guilty to the same on your own free will. Accordingly you are convicted to the following charge.

COUNT 1

OBTAINING GOODS BY DECEPTION: Contrary to Section 317(1) of the Crimes Decree No. 44 of 2009

Particulars of Offence

AMIT AVINESH CHAND between the 16th day of March 2012 and the 2nd day of February 2014 at Suva in the Central Division by deception, dishonestly obtained electronic items, sports equipment, recharged cards and grocery items through a money link account number 357304 all to the total value of $74,336.02 belonging to Alvin Chand of Carpenters Fiji Group Limited with the intention of permanently depriving Alvin Chand of Carpenters Fiji Group Limited of the said property.

COUNT 1

FRADULENT FALSIFICATION OF ACCOUNTS: Contrary to Section 322(1)(a)(i) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

AMIT AVINESH CHAND between the 16th day of March 2012 and the 5th day of February 2014 at Suva in the Central Division been an employee of Carpenters Finance Fiji Limited wilfully and intentionally defrauded Carpenters Finance Fiji Limited by falsifying a money link account number 357304 belonging to Carpenters Finance Fiji Limited.

2] Summary of facts that you have admitted revealed that;

1. The accused between 12/2/12 to 12/1/14 was employed as an Information Technology Programmer for Carpenters Finance, Ellery Street.
2. He usually obtained goods mostly electronic items, sports equipment,re-charge cards and groceries from Carpenters Fiji Limited outlets namely MH Home maker MHCC, Daltron and MH’s Tavua and Ba.
3. The accused then would excess to his money link accounts and fraudulently falsify his account by raising fake payments to off-set the above purchase without any cash sales received.
4. Between 16/3/12 to 5/1/14 the accused excessed with his money link account number 357304 and fraudulently falsify his account by making false payments that $64,920.00 was received during the above said period.
5. On 23/2/14 at Carpenters Finance, Ellery Street, Suva one Alvin Chand risk officer of Naduru Road, Nausori and Niraj Ram, Manager Risk of Wainibokasi, Nausori conducted random checks on Carpenters staffs accounts including money-link accounts and found the accused’s money link account hidden on the system and both became suspicious.They then further excessed into the system whereby the above were found to be true and correct and MeliRadrekusa, manager securities was informed and conducted internal investigations and later alerted police.
6. It was found that the accused fraudulently manipulated his money link account number 357304 and made purchases amounting of $74,336.05 in total.
   

3] In terms of Section 317(1) of the Crimes Decree the maximum penalty for the 1^st count is Imprisonment for 10 years and in terms of Sec 322(1) (a)(i)of the Crimes Decree the maximum penalty for the 2^nd count is Imprisonment for 7 years.

4] I shall now look into the tariff for these two offences. InState v Miller [2014] FJHC 16; Criminal appeal 29.2013 (31 January 2014) it was held:

“There are two deception offences in the Crimes Decree; obtaining property by deception (section 317) and obtaining a financial advantage by deception (section 318). The main section is 317 because there are numerous sub clauses of explanation, and the section encompasses obtaining of choses-in-action as well as of tangible property. Obviously the section provides for the taking of monies and so it would have been a far more relevant offence in a situation such as in the present case. Obtaining a financial advantage (section 318) is more appropriate to situations such as securing scholarships by deception, securing a credit line by deception for example. It is not wrong for the charge to read financial advantage in this case, but it is not strictly correct. When an employee steals money from a bank account it is theft of a chose-in-action and it is obtaining property by deception contrary to 317(7) or sometimes 317(8) if the money is transferred to another.

The penalty for both offences is the same that is ten years. Under the old Penal Code the maximum for the offence was a term of 5 years and the tariff was between 18 months to three years. As this Court stated in Atil Sharma HAC122.2010, given that the penalty has doubled, a new tariff should be set as being between 2 years and 5 years with the minimum being reserved for minor spontaneous cases with little deception.

From two years to five years then is the new tariff band for these two offences (financial advantage and property) and any well planned and sophisticated deception will attract the higher point of the band or even more if that court gives good reason. It will of course be a serious aggravating feature if the person being defrauded is unsophisticated, naive or in any other way socially disadvantaged.”

In respect of the 2^nd count the relevant authority is State v Bole [2005] FJHC 470; HAC0038S.2005S (4 October 2005) where the accused faced five counts of fraudulent falsification of accounts.It was held in this case that

“The maximum sentence for offences under section 307 of the Penal Code is 7 years imprisonment. However, the tariff for breach of trust sentence ranges from 18 months to 3½ years imprisonment. Higher terms are imposed where there is a serious breach of trust, committed over a long period of time, there has been no attempt at restitution and no remorse expressed nor a guilty plea.

A comparable case to this one is State v. IsimeliDrodroveivali HAC0007.2002S, in which Singh J imposed a 3 year term of imprisonment on 5 counts of fraudulent conversion which involved a total of $36,858. In that case the accused was a bank officer who committed the fraud over a period of 10 months. In breach of trust cases, comparably less weight is put on good character, because only people of good character are given positions of trust and responsibility. It is the breach of trust which is the harm done in these offences.”

It should also be noted that the tariff for fraud cases ranged from eighteen months to 4 years with 4years imprisonment reserved for the worst type of offending, as observed by Her Ladyship Ms. NizhatShammen in Hu Jun Jun v The State[2005] FJHC 93;

5] I shall now proceed to consider your sentence as to be consistent with the tariff, mitigating factors and aggravating factors.

6] I pick 3 years imprisonment as the starting point for the 1^st count and 27 months imprisonment for the 2^nd count.

7] The accused was employed as an IT programmer by the complainant company.He had used this opportunity to manipulate the accounts. Accordingly there is a serious breach of trust and this is a well-planned and sophisticated deception. The amount involvedis high. For these aggravating factors 1 year and 6 months is added to the first count and 6 months to the 2^nd count. Accordingly your sentence now reaches 4 years and 6 months for the 1^st count and 33 months for the 2^nd count.

8] I shall now turn into your mitigating factors. You have pleaded guilty saving the court time. For your early guilty plea I reduce the sentencefor the 1st count by one year to reach 3 years and 6 months. The sentence for the 2^nd count is reduced by 11 months to reach 22 months for the 2^nd count.

9] You have no previous convictions. Therefore you are entitled to the credit for good character that a first offender is entitled to.I reduce your sentence for the 1^st count byone year and by 4 months for the 2^nd count for your good character. You have mentioned in your mitigating submissions that you have paid a certain amount of money to the complainant. The prosecution confirmed the amount as $21149.85. For this attempt I reduce 6 months from the sentence for the 1^st count. Accordingly your final sentence for the 1^st count reaches 2 years and 18 months for the 2^nd count.

10] Your sentence cannot be suspended as it exceeds 2 years. Moreover this is not a fit case to grant a suspension when the seriousness and the amount is concerned.

I also fix one and half years non- parole period and the sentence for both counts to run concurrently.

28 days to appeal

PRIYANTHA LIYANAGE

RESIDENT MAGISTRATE, SUVA

26/9/2016