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State v Roberts [2004] FJHC 51; HAA0053J.2003S (30 January 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0053 OF 2003S

Between:

STATE
Appellant

And:

RAYMOND ROBERTS
Respondent

Hearing: 23rd January 2004
Judgment: 30th January 2004

Counsel: Ms A. Prasad for State
Mr. M. Raza for Respondent

JUDGMENT

On the 6th of August 2003 the Respondent pleaded guilty to four counts of larceny by servant. He was sentenced to a total of 18 months imprisonment suspended for three years. The State appeals against this sentence.

The charges, filed on the 25th of January 2002 in the Suva Magistrates’ Court read as follows:

FIRST COUNT

Statement of Offence

LARCENY BY SERVANT: Contrary to section 274(a)(i) of the Penal Code Act 17.

Particulars of Offence

RAYMOND ROBERTS on the 30th day of July, 2001 at Suva in the Central Division being employed as a servant by Colonial National Bank stole $23,648.91 in cash, the property of the said Colonial National Bank.

SECOND COUNT

Statement of Offence

LARCENY BY SERVANT: Contrary to section 274(a)(i) of the Penal Code Act 17.

Particulars of Offence

RAYMOND ROBERTS on the 31st day of August, 2001 at Suva in the Central Division being employed as a servant by Colonial National Bank stole $16,351.09 in cash, the property of the said Colonial National Bank.

THIRD COUNT

Statement of Offence

LARCENY BY SERVANT: Contrary to section 274(a)(i) of the Penal Code Act 17.

Particulars of Offence

RAYMOND ROBERTS on the 29th day of October, 2001 at Suva in the Central Division being employed as a servant by Colonial National Bank stole $10,000.00 in cash, the property of the said Colonial National Bank.

FOURTH COUNT

Statement of Offence

LARCENY BY SERVANT: Contrary to section 274(a)(i) of the Penal Code Act 17.

Particulars of Offence

RAYMOND ROBERTS on the 30th day of November, 2001 at Suva in the Central Division being employed as a servant by Colonial National Bank stole $15,860.00 in cash, the property of the said Colonial National Bank.

FIFTH COUNT

Statement of Offence

FRAUDULENT CONVERSION: Contrary to section 279(1)(b) of the Penal Code Act 17.

Particulars of Offence

RAYMOND ROBERTS between 1st July, 2001 and 31st October, 2001 at Suva in the Central Division, being an officer of Colonial National Bank fraudulently converted $1,500.00 in cash which he received from Paras Ram s/o Ram Swaroop on behalf of the said Colonial National Bank.

SIXTH COUNT

Statement of Offence

FRAUDULENT CONVERSION: Contrary to section 279(1)(b) of the Penal Code Act 17.

Particulars of Offence

RAYMOND ROBERTS between the 1st day of October, 2001 and 31st day of October, 2001 at Suva in the Central Division being an officer of Colonial National Bank fraudulently converted $500.00 in cash which he received from Bob Usman Ali s/o Abdul Rahim on behalf of the said Colonial National Bank.

The case was first called on the 25th of January 2002. The Respondent pleaded not guilty on all counts. He was not represented by counsel. The case was next called on the 15th of February 2002 when counsel appeared for him. The case was then adjourned to the 18th of June, 26th of July, 23rd of August, 13th of September, 4th of October, 28th of November 2002 and to the 24th of January, 7th March and the 17th of June 2003. From 24th January, the defence told the Learned Magistrate that they were adopting a “progressive approach” to the case. On the 17th of June 2003, the defence agreed to plead guilty to Counts 1, 2, 3 and 4. On the 1st of July 2003, the prosecution withdrew counts 5 and 6. The matter was then adjourned to 10th July 2003 for sentencing. On that day the Respondent did not appear and the sentencing hearing finally proceeded on the 29th of July 2003. The Respondent pleaded guilty to all four counts and admitted the facts. They were that in 1999, the Respondent was employed as a loans officer at the National Bank of Fiji trading as the Colonial National Bank. As loans officer, he falsely prepared a letter offering a loan to a Gur Swamy dated 29th January 1999. The loan was purportedly for the sum of $70,000 and the Respondent signed it as Gur Swamy. The “loan” application was approved. The Respondent then, on four separate occasions withdrew the sums of $23,648.91, $16,351.09, $10,000 and $15,860 from the loan account and deposited them into the account of one Roslyn Lata. He then withdrew each amount from that account and used the money himself. The last such withdrawal was on the 30th of November 2001. The Respondent, on the 1st of July 2003 had paid the Bank back a total sum of $65,860.41.

In mitigation the defence called a character witness Reverend Immanuel Reuben, a Methodist Minister. He said he had known the Respondent for 17 years as a member of the church. He said that he had officiated at the Respondent’s wedding and that he had a daughter and a son. In the middle of 2002, he told Reverend Reuben about the offence and the Reverend advised him to repay the money to the bank. Since the commission of the offences the Respondent has shown a commitment to the church, and has become more mature and responsible.

In mitigation, counsel said that the Respondent had worked for the National Bank for 13 years. He had been on a gross salary of $20,000 per annum and since his dismissal in January 2002 he was unable to find another job. In March 2003 he started his own business as a real estate agent. He said that the Respondent had suffered since January 2002 and that with a mortgage to the Housing Authority to the value of $120,000, his wife was forced to meet the mortgage obligations as the sole breadwinner.

He further said that although he had created the fictitious account, he had tried to repay the money by monthly instalments even before the Bank discovered the theft.

Counsel asked for a non-custodial sentence saying that the Respondent was currently studying towards a Diploma.

Sentence was delivered on the 8th of August 2003. The Learned Magistrate referred to the case of Barrick (1985) 91 Cr. App. R. 78, a case which set down sentencing guidelines in fraud cases. She used as her starting point 3½ years imprisonment. After reducing for mitigating factors she arrived at an 18 month term which she decided to suspend on the basis of Fiji cases in which suspension had been ordered.

The State says that the sentence imposed was wrong in principle and manifestly lenient.

Counsel for the State submitted that the maximum sentence for offences under section 274 of the Penal Code is 14 years imprisonment. She referred to Barrick, State v. Mahendra Prasad Cr. Action HAC0009.02S and Gerald Panniker v. State Crim. Appeal No. 28 of 2000 and said that although an 18 month term of imprisonment was unexceptionable in a case of serious fraud, the suspension of that sentence was wrong in principle.

Counsel for the Respondent said that a sentence passed in the lower court should only be varied on appeal where the court had erred in principle. An appellate court should never simply substitute a sentence that it might have passed itself. He said that all the matters raised on appeal, had been raised in the lower court, and the Learned Magistrate had merely exercised her discretion to suspend. That discretion was open to her.

In Barrick, the appellant, who had held a position of trust in a finance company, had stolen £9000. He pleaded not guilty and was found guilty. He was sentenced to two years imprisonment. On appeal he asked for suspension of his sentence. The Court of Appeal held that in breach of trust cases, a term of immediate imprisonment was inevitable except in exceptional circumstances. Relevant matters were the quality and degree of trust abused, the period of defrauding, the use to which the money was put, the effect on the victim, the impact on the public, the effect on the offender, any delay between discovery and trial, and the offender’s personal history. The Court found that the 2 year term imposed was too lenient saying that a term of up to 18 months imprisonment was appropriate for the theft of amounts up to £10,000, 2 to 3 years imprisonment for the theft of amounts between £10,000 and £50,000, and terms of 3½ to 4½ years for thefts of more than £50,000.

In Panniker, Pathik J adopted these guidelines in the case of a 3½ year term imposed on an offender who pleaded guilty to the theft of $49,348.82 from his employer. He had maintained a not guilty plea from August 1999 to November 1999 when he pleaded guilty. There was no attempt at restitution until the day before the appeal hearing when the sum of only $10,000 was paid by the appellant’s brother. Pathik J considered Vishwajit Prasad v. State Crim. App. No. 23 of 1993 (4 years reduced to 2½ years) in which almost half of the amount stolen was paid back before the hearing, and State v. Helen Broadbridge Crim. Case No. 31 of 1997 (2½ years imprisonment for the theft of $24,147.55). His Lordship reduced the term for the restitution of $10,000 to one of 3 years imprisonment.

In none of these cases had full and prompt restitution been made. In State v. Mahendra Prasad Gates J considered sentence in a case very similar to this one. In that case the accused pleaded guilty on 12 counts of larceny by servant. The total stolen was $59,000. On discovery, he co-operated with the police and confessed to the stealing. He transferred his house and car to his employer to compensate him for the loss of the money and his employer accepted this and tried to persuade the DPP to withdraw charges. In total the accused paid back the money he had used and the money he said he had given to another employee. Gates J referred to a number of English authorities and to State v. Isimeli Drodroveivali Cr. Case No. HAC 007/02S and found that in all cases, custodial sentences had been imposed, and that the tariff for the theft of $59,000 should lead to a sentence of imprisonment between 2 to 3 years. He distinguished those cases where the accused had pleaded not guilty or had not restored the money stolen and sentenced the accused to 2 years imprisonment suspended for 3 years.

The principles that emerge from these cases are that a custodial sentence is inevitable where the accused pleads not guilty and makes no attempt at genuine restitution. Where there is a plea of guilty, a custodial sentence may still be inevitable where there is a bad breach of trust, the money stolen is high in value and the accused shows no remorse or attempt at reparation. However, where the accused is a first offender, pleads guilty and has made full reparation in advance of the sentencing hearing (thus showing genuine remorse rather than a calculated attempt to escape a custodial sentence) a suspended sentence may not be wrong in principle. Much depends on the personal circumstances of the offender, and the attitude of the victim.

In this case, the Respondent had made attempts at restitution even before the Bank discovered the theft. This is highly significant. Further full restitution took place, not because of the prosecution, but because his pastor counselled him and was able to persuade him to be responsible and accountable for his actions. In making restitution, the Respondent was not buying himself out of trouble. His remorse was clearly genuine.

Further, the offences were committed in 2001, and he has suffered the consequences of his offending (both financially and socially) while his case was pending in the Magistrates’ Court. To impose a custodial sentence now, when he has begun to pick up the pieces of his life, would lead to injustice.

Finally, I am not told of the attitude of his employers in relation to the sentence imposed, but the fact that restitution was accepted by them suggests that there has been some degree of reconciliation in those quarters.

In all the circumstances, I do not consider that the Learned Magistrate erred in suspending the Respondent’s sentence. This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
30th January 2004