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Magu v Reginam [1980] FJCA 21; Criminal Appeal 48 of 1979 (27 June 1980)

IN THE FIJI COURT OF APPEAL
APPELLATE JURISDICTION

Criminal Appeal No. 48 of 1979

BETWEEN:

JOHN MAGU
Appellant

AND:

REGINAM
Respondent

Mr. E. Vula for the Appellant
Mr. D. Williams for the Respondent

Date of Hearing: 5 June 1980
Delivery of Judgment: 27 June 1980

JUDGMENT

Speight J.A.

Appellant pleaded guilty in the High Court of Solomon Islands on 28th August 1979 to charges relating to misuse by him of two cheques for $108.30 and $91.40 respectively. He had been employed by the Ministry of Education and Cultural Affairs as a clerk and his duties included the distribution of pay cheques to school teachers.

In the instant case he misappropriated the cheques in September and November 1977 and instead of forwarding them to the teachers entitled he forged their signatures on the cheques and cashed them at a local store. Hence the charges – two of forgery and two of uttering. He did the same in respect to three other cheques for $98.10, $40.01 and $40.02. Those were taken into consideration. The total proceeds obtained were $377.83.

He was sentenced by Cooke C.J. to three years' imprisonment on each, concurrent. In his judgment the learned Chief Justice referred to the abuse by the prisoner of his position of trust, the difficulties encountered by the teachers as a result of the crimes, and the failure to make restitution.

Appeal is now made against severity of sentence.

In his submissions to this Court Mr. Vula for the appellant developed certain matters which were not all before the Court appealed from. First he was able to say that full restitution has now been made. More particularly he drew attention to a number of other sentences imposed in the Solomon Islands for like offences. Reference can be made, without detail, to a few of these:

These cases were mostly for substantially larger sums and were all by employees - some in positions of higher status than appellant - vis, bank tellers. Nahusu who made many forgeries was also sentenced to three years for total defaults of some thousands but the others received lesser terms. Of some note is the case of Kumana who stole $2,800 from his employer. He was sentenced by the Principal Magistrate to two years six months' imprisonment, but on appeal Davis C.J. reduced this to eighteen months.

Although counsel did not mention the matter in his oral submissions, this Court had before it on the same day the case of Frank Kere, also on appeal from the High Court of Solomon Islands. He was sentenced to nine months' imprisonment, plus fine of $221 for a number of offences of theft from his employer, of sums totaling $471.

Mr. Williams who appeared on instructions from the Director of Public Prosecutions of Solomon Islands conceded quite fairly that the sentence under review was out of line with those imposed in other cases of a like nature, and suggested that the usual scale was between nine months and two years.

The principles relating to disparity are well known. Where one prisoner has received a sentence which is disproportionately low, that is no ground for reducing a proper sentence on another. But where it is shown that the sentence under review is very heavy and out of proportion to the majority of punishments for comparable offences it is the duty of the Court to ensure that there is a degree of consistency. In comparable cases the level of punishment to be meted out should not ebb and flow in a marked way otherwise there will be room for prisoners who have been heavily and disproportionately sentenced to have a legitimate grievance, and this encourages resentment and lack of confidence in the judicial system among the public at large.

In our view it has been demonstrated that this sentence was manifestly excessive and in all the circumstances the appropriate sentence is eighteen months' imprisonment. To that extent the appeal is allowed and the sentence varied accordingly.

C.C. Marsack
JUDGE OF APPEAL

G.D. Speight
JUDGE OF APPEAL

B.C. Spring
JUDGE OF APPEAL