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Kumar v The State [2006] FJCA 32; AAU0024U.2006S (14 July 2006)

IN THE COURT OF APPEAL FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL NO. AAU0024 OF 2006S
(High Court Lautoka Crim. Action No. HAC 40/2006L )

BETWEEN:

MANOJ KUMAR AND NILESH PRAKASH
Appellant

AND:

THE STATE
Respondent

Coram: Barker, JA
Henry, JA
Scott, JA

Hearing: Friday, 7 July 2006, Suva

Counsel: Mr Gavin O’Driscoll for the Appellant
Ms Asishna Prasad for the Respondent

Date of Judgment: Friday, 14 July 2006, Suva

JUDGMENT OF THE COURT

Introduction

[1] Pursuant to s.21(1)(c) of the Court of Appeal Act the appellants seek leave to appeal sentences imposed on them in the High Court on 13 April 2006. The appellant Kumar was sentenced to 2½ years imprisonment and the appellant Prakash to 2 years imprisonment. For both appellants it was submitted that the Judge erred in not imposing suspended sentences under s.29 of the Penal Code.

[2] The appellant each entered pleas of guilty to 21 counts of theft as a servant (s.274 (1)(a) of the Penal Code). Such an offence carries a maximum of 14 years imprisonment.

[3] At relevant times Mr Kumar was employed by Carpenters Shipping as accounts supervisor. Mr Prakash was also employed in the accounts section of that company. The offending took place between December 1999 and September 2002. The thefts arose from a system operated by both appellant, under which cheques were prepared for payments to creditors. Although the company records showed the creditors as recipients of the cheques, they were in fact made payable to cash, and were then cashed by the appellants who retained and shared the proceeds. An audit with the Nadi Office of the company revealed the thefts, and inquiries disclosed that Mr Prakash had prepared the cheques which were then signed by Mr Kumar as payable to cash. The total sum stolen by the appellants was in excess of $290,000 of which $203,516 had been recovered at the time of sentencing. We were advised at the hearing of these appeals that funds to enable repayment of the balance are expected to be available in the near future. In this regard, we note that restitution has not been voluntary, but rather resulting from proceedings taken in New Zealand to attach assets held there.

[4] Mr Kumar faces an initial difficulty. Section 29 of the Penal Code empowers the Court to suspend a sentence of imprisonment, but only if that sentence does not exceed 2 years. The High Court therefore had no jurisdiction to suspend the length of the term of imprisonment if the assessment was appropriate to his offending. No challenge to that assessment was made in the written submissions to this Court, and despite all that counsel has urged upon us as mitigating factors, it is really impossible to conclude that the term was excessive.

[5] That apart, we are not persuaded either that the Judge failed properly to address the issue of whether or not to suspend the sentences of imprisonment of either appellant, or that some relevant factors had been given under weight and others insufficient weight. In the circumstances we find it unnecessary to traverse the various factors referred to in counsel’s submissions. This was planned offending, carried out over a lengthy period of time by trusted employees, from which they obtained a very substantial amount of money which was used to the benefit of their life styles. Previous good records, community service, and the effect on young families resulting from their imprisonment, even the tragic health condition of Mr Kumar’s daughter, cannot justify a departure from the general principle that fraudulent breach of trust by an employee will merit imprisonment. Although a suspended sentence may be statutorily available, a sentencing court must keep firmly in mind the gravity of such offending as well as other appropriate sentencing principles. Here the scale of the offending and the amount involved virtually prohibited the application of s.29.

[6] We are far from being persuaded that the Judge erred and are of the view that the sentences were fully justified, basically for the reasons expressed by the Judge.

[7] Leave to appeal is refused both appellants.

Barker, JA

Henry, JA

Scott, JA

Solicitors:

Messrs. Iqbal Khan and Associates, Lautoka for the Appellants

Office of the Director of Public Prosecutions, Suva for the Respondent

AAU0024U.06S