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State v Hussain [2021] FJCA 255; AAU0013.2020 (29 December 2021)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CRIMINAL APPEAL NO.AAU 0013 of 2020

[High Court at Suva Criminal Case No. HAC 317 of 2015]

BETWEEN:
STATE

Appellant

AND:
NOUSHEEN MEZBEEN HUSSAIN

Respondent

Coram: Prematilaka, ARJA

Counsel: Mr. R. Kumar for the Appellant

: Mr. M. Yunus for the Respondent

Date of Hearing: 23 December 2021

Date of Ruling: 29 December 2021

RULING

[1] The respondent had been charged in the High Court at Suva on one count of theft contrary to section 291 of the Crimes Act No. 44 of 2009, one count of obtaining property by deception contrary to section 317 of the Crimes Act No. 44 of 2009 and one count of money laundering contrary to section 69(2)(a) and (3)(b) of the Proceeds of Crime Act, 1997 committed in 2012 at Suva in the Central Division. The charges were as follows:

‘First Count

Statement of Offence

THEFT: Contrary to section 291 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NOUSHEEN MEZBEEN HUSSAIN also known as Nousheen Mezbeen Ali, between the 1^st day of January, 2012 and the 31^st day of May, 2012, at Suva, in the Central Division dishonestly appropriated $15,362.78 belonging to Art and Soul Limited with the intention of permanently depriving the said Art and Soul Limited of the said amount.

Second Count

Statement of Offence

OBTAINING PROPERTY BY DECEPTION: Contrary to section 317 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NOUSHEEN MEZBEEN HUSSAIN also known as Nousheen Mezbeen Ali, between the 8^th day of February, 2012 and the 2^nd day of March, 2012, at Suva, in the Central Division dishonestly obtained $1,772.10 from Fiji Revenue and Customs Authority with the intention of permanently depriving Fiji Revenue and Customs Authority of the said amount.

Third Count

Statement of Offence

MONEY LAUNDERING: Contrary to section 69(2)(a) and (3)(b) of the Proceeds of Crime Act 1997.

Particulars of Offence

NOUSHEEN MEZBEEN HUSSAIN also known as Nousheen Mezbeen Ali, between the 1^st day of January, 2012 and the 31^st day of May, 2012, at Suva, in the Central Division used a total of $17,134.88, that are the proceeds of crime, knowing or ought reasonably to have known that the $17,134.88 is derived or realized directly or indirectly from some form of unlawful activity.’

[2] After the summing-up, the assessors had expressed a unanimous opinion of guilty against the respondent on all counts. The learned High Court judge in the judgment had agreed with the assessors and convicted the respondent accordingly. She was sentenced on 31 January 2020 to 18 months of imprisonment on the first count, 02 years of imprisonment on the second count and 03 years of imprisonment on the third count; all sentences to run concurrently. The trial judge refrained from imposing a non-parole period. In addition, the respondent was also ordered to pay a fine of $1000 with a default term of imprisonment of 03 months.

[3] The appellant had filed a timely notice of appeal (28 February 2020) against the sentence. The appellant’s written submissions had been filed on 22 October 2021 and the state had tendered its written submissions on 26 November 2021.

[4] The grounds of appeal urged on behalf of the respondent are as follows:

Grounds of Appeal (sentence)

Ground 1

THAT the Learned High Court Judge erred in principle by adopting a starting point below the applicable tariff thereby resulting in manifestly lenient sentence in relation to the third count.

Ground 2

THAT the Learned High Court Judge erred in law when he failed to impose a non-parole period.

[5] The learned High Court judge has summarized the facts of the case as follows in the sentencing order:

3. Brief facts of the case are that: the complainant ran an advertising and marketing business called ‘Art and Soul Ltd’. The offender joined ‘Art and Soul Ltd’ in 2008 as an accounts person and remained there until she was terminated in 2012. The offender gradually built confidence with the complainant as a trusted accounts officer and handled and managed the whole of company’s accounts. The internet banking platform was operated and managed by the offender. She had access to the online banking platform for the company and was given the password to access the bank account to settle the bills, pay the salaries of the staff and make other payments.
   
4. In 2012, the company was struggling to manage the finances, so PW 3 was hired to assist with the running of the business. PW 3 noted suspicious double payments and brought them to complainant’s attention. Upon an inquiry, the bank confirmed that the narratives for the suspicious transfers were false and that the money was going into offender’s bank account. The complainant found suspicious transfers done by the offender to be unauthorised. Upon this discovery, the offender admitted stealing money from Art & Soul Limited. She apologised to the complainant and restituted $ 10,000/- whereupon her service was terminated.
   
5. At the trial, the offender admitted receiving a sum of $15,362.78 into her bank account from Art & Soul Ltd. but denied stealing. The Prosecution proved that the offender had dishonestly appropriated a sum of $15,362.78 belonging to the complainant with the intention of permanently depriving the complainant of the said money.
   
6. The offender also forged the signature of the complainant and provided incorrect and misleading information to FRCA in order to obtain a sum of $1772.10 as a tax refund.
   
   7. The offender received a total sum of $17,134.88 from Art & Soul and FRCA into her bank account. Prosecution proved that the money was generated from two serious predicate offences, namely, Theft and Obtaining Property by Deception thus the money formed proceeds of crime. The offender was fully aware that the money was derived from her illegal activity. She used the financial system to transfer the illicit money from one account to another and for that purpose she used various misleading narration to disguise the true origin of illicit money. As soon as the offender received money into her (salaries) bank account she either withdrew or transferred part of that money to a ‘hidden’ savings account to disguise the true origin of the proceeds of crime. Making withdrawals and transfers from a bank account which is tainted with illegality, the offender was using the illicit money in such a manner so as to disguise the true source of income and to make the money look legitimate and clean.’
      

[6] In terms of section 21(1)(c) of the Court of Appeal Act, the respondent could appeal against sentence only with leave of court. The test for leave to appeal is ‘reasonable prospect of success’ (see Caucau v State AAU0029 of 2016: 4 October 2018 [2018] FJCA 171, Navuki v State AAU0038 of 2016: 4 October 2018 [2018] FJCA 172 and State v Vakarau AAU0052 of 2017:4 October 2018 [2018] FJCA 173, Sadrugu v The State Criminal Appeal No. AAU 0057 of 2015: 06 June 2019 [2019] FJCA87 and Waqasaqa v State [2019] FJCA 144; AAU83.2015 (12 July 2019) in order to distinguish arguable grounds [see Chand v State [2008] FJCA 53; AAU0035 of 2007 (19 September 2008), Chaudry v State [2014] FJCA 106; AAU10 of 2014 and Naisua v State [2013] FJCA 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds.

[7] Further guidelines to be followed for leave to appeal when a sentence is challenged in appeal are well settled (vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013] FJSC 14; House v The King [1936] HCA 40; (1936) 55 CLR 499, Kim Nam Bae v The State Criminal Appeal No.AAU0015 and Chirk King Yam v The State Criminal Appeal No.AAU0095 of 2011). The test for leave to appeal is not whether the sentence is wrong in law but whether the grounds of appeal against sentence are arguable points under the four principles of Kim Nam Bae's case. For a ground of appeal timely preferred against sentence to be considered arguable there must be a reasonable prospect of its success in appeal. The aforesaid guidelines are as follows:

(i) Acted upon a wrong principle;
(ii) Allowed extraneous or irrelevant matters to guide or affect him;
(iii) Mistook the facts;
(iv) Failed to take into account some relevant consideration.

01^st ground of appeal

[8] The trial judge had justified the starting point of 03 years for the third count as follows in the sentencing order:

11. Money Laundering”, contrary to section 69 (2) (a) and (3) (a) of the Proceeds of Crimes Act 1997, carries a maximum penalty of a fine not exceeding $120,000 or imprisonment for a term not exceeding 20 years, or both (count no.2). In State v Josefa Saqanavere and Others, Criminal Case No., HAC 251 of 2013S, The tariff for “money laundering” is now set at 5 to 12 years’ imprisonment: see State v Robin Surya Subha Shyam, Criminal Case No. HAC 146 of 2010S; State v Monika Monita Arora, Criminal Case No. HAC 125 of 2007S, and State v Doreen Singh, Criminal Case No. HAC 086 of 2009S.
    
12. In selecting the starting point and determining what sentences are appropriate for offences of this kind, the courts should take into consideration the gravity of the offence and the harm caused to the complainant. The seriousness with which the Money Laundering is regarded by Parliament is reflected in the maximum sentence prescribed by the Proceeds of Crimes Act. The maximum sentence indicates that this offence has been considered by the Parliament as a serious offence. However when one looks at the Hansard which I referred to in my Judgment, it is highly doubted that the Parliament had contemplated this type of cases to be dealt with under the Proceeds of Crimes Act which was enacted for a particular purpose.
    
13. This offence has been committed by a natural person without any involvement of a third person. The person who generated the proceeds of crime had used it for her own benefit thus the gravity of the money laundering feature is minimal. The harm caused to the financial system or the national economy is also negligible. Furthermore, there are no international implications involved in the crime. Therefore, it should attract a lesser sentence than what should have been attracted by an offender in a “classic money laundering case”.
    
14. The offender laundered a sum of $ 17,134.88. However, the victim impact statement and the evidence of the complainant indicate that the illegal activity of the offender has caused a considerable loss to the business of the complainant over a period of time. By the act of deception on the FRCA to obtain public funds, the offender has ultimately victimised the tax payers as a whole.
    
15. In view of these considerations, a starting point of 3 years is commensurate with the objective seriousness of the offence of Money Laundering. ........’
    

[9] It appears that the trial judge had taken sentencing tariff for money laundering as between 02 and 05 years with the minimum being reserved for minor spontaneous cases with little deception and selected 03 years as the starting point. The appellant’s contention is that the sentencing range is 05-12 years of imprisonment and therefore the trial judge had committed a sentencing error by adopting a wrong tariff resulting in an inadequate sentence.

[10] I considered the issue of sentencing tariff in money laundering in a number of previous rulings and stated in State v Aidong Zhang [2021] FJCA 36; AAU162.2019 (9 February 2021):

‘[24] However, when the final sentence is reviewed by the Court of Appeal one of the essential matters that would be considered is the range of sentences for money laundering. In Naidu v State [2020] FJCA 80; AAU0099.2018 (16 June 2020), I looked at this aspect in somewhat detail as the trial judge had remarked that the tariff for money laundering was not well settled in Fiji and it was difficult to lay down guidelines for sentencing in money laundering cases but the trial judge in the end had concluded that the tariff for money laundering should range from 05 years to 12 years of imprisonment. Having examined all the decisions cited by the trial judge, I found that not all judges in the High Court have applied the above range of sentences and the sentences imposed on accused in money laundering cases have varied considerably across a wide range depending on the individual cases. Therefore, I felt that it would be better for the state to seek a guideline judgment from the Court of Appeal on the appropriate tariff in money laundering cases to ensure that there is some degree of uniformity as remarked in Koroivuki. [See paragraph 33 of Nadavulevu v State [2020] FJCA 14; AAU119.20215, 115.2015, 129.2015 (27 February 2020) for similar comments]

‘[26] The purpose of tariff in sentencing is to maintain uniformity in sentences. Uniformity in sentences is a reflection of equality before the law. Offender committing similar offences should know that punishments are even-handedly given in similar cases. When punishments are even-handedly given to the offenders, the public's confidence in the criminal justice system is maintained.’

[11] It is the ultimate sentence that is of importance, rather than each step in the reasoning process leading to it. When a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step in the reasoning process that must be considered (vide Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006). In determining whether the sentencing discretion has miscarried the appellate courts do not rely upon the same methodology used by the sentencing judge. The approach taken by them is to assess whether in all the circumstances of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies within the permissible range (Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015). However, not every sentence within the range would be necessarily an appropriate sentence that fits the crime.

[12] Therefore, without making any observations as to whether the ultimate sentence imposed on the appellant is adequate or inadequate, I feel justified in granting leave to appeal as the question of sentencing tariff on money laundering is yet to be pronounced upon by any of the appellate courts and leave to appeal will enable the full court to deliberate on the sentencing tariff on money laundering and the propriety of the respondent’s sentence at the same time.

02^nd ground of appeal

[13] The appellant argues that the trial judge had erred in not imposing a non-parole period in view of section 18 of the Sentencing Penalties Act as amended by Corrections Service (Amendment) Act 2019 (22 November 2019). In Waqanituva v State [2021] FJCA 100; AAU131.2015 (27 May 2021) the Court of Appeal remarked:

‘[31] In terms of the new sentencing regime introduced by the Corrections Service (Amendment) Act 2019 (22 November 2019), when a court sentences an offender to be imprisoned for life or for a term of 2 years or more the court must fix a period during which the offender is not eligible to be released on parole (i.e. the non-parole period).....’

[14] The final sentence on money laundering count being 03 years, the trial judge had therefore erred in not imposing a non-parole period. Therefore, leave to appeal is granted on the second ground of appeal.

Order

1. Leave to appeal against sentence is allowed.
   

Hon. Mr. Justice C. Prematilaka

ACTING RESIDENT JUSTICE OF APPEAL