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Kumar v The State [2005] FJHC 69; HAM0004J.2005S (1 April 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Criminal Misc. Case No: HAM 004 of 2005S

Between:

RONEEL KUMAR
Appellant

And:

THE STATE
Respondent

Hearing: 23rd March 2005
Judgment: 1st April 2005

Counsel: Mr. N. Lajendra for Appellant
Mr. W. Kuruisaqila for State

JUDGMENT

This is an appeal against sentence. The Appellant was bound over to be of good behaviour for 12 months, for the following offence:

Statement of Offence

LARCENY BY SERVANT: Contrary to Section 274(1) of the Penal Code Act 17.

Particulars of Offence

RONEEL KUMAR s/o Ashok Kumar, on the 8th day of November 2001 at Lami in the Central Division, being a servant to Nestle Fine Foods Limited, stole 616 packets of Noodles valued $206.00 from the said Nestle Fine Foods Limited.

This is a very old case. The charge was laid on the 16th of November 2001. A plea of not guilty was entered on the 4th of January 2002. On the 8th of February 2002, the Appellant failed to appear in court, and a bench warrant was issued. He was arrested and brought to court on the 4th of October 2004, 2 years and 8 months later. He was represented by counsel. The charge was put to the Appellant again and he pleaded guilty. The facts were read. They were that on the 8th of November 2001, a police officer from Lami Village, saw the Appellant, an employee of Nestle, dressed in his factory uniform carrying two cartons of noodles to the factory fence at the Nestles Fine Foods factory at Wailada in Lami. He and another security officer, one Alipate Rainima then carried 2 sacks each, also containing noodles, and threw those over the fence, to two other watchmen. The police officer confronted the security officers and they admitted that they were stealing from Nestle. Two of the watchmen said that they thought the noodles had been destined for the rubbish bin, which is why the Appellant and Rainima were taking them. In fact the noodles were intended for sale.

The Appellant and his accomplice were taken to the police station, and were interviewed under caution. The Appellant was charged with larceny by servant.

These facts were admitted by the Appellant. He was a first offender. In mitigation, counsel said that the Appellant had been 19 years old at the time of the offence, and had come to Suva from Labasa to wait to receive a scholarship. He took the job at Nestle and stayed with relatives. He was sometimes allowed to take away broken packets of noodles and he got “carried away” and took saleable noodles instead. The Appellant was remorseful and counsel said that he did not appear in court because he was told to go away when he came to court. He was a final year student at the Fiji College of Advanced Education.

In sentencing him, the learned Magistrate said that the only aggravating factor was the Appellant’s failure to appear in court for more than 2 years. He took into account the amount of money involved in the offence, the loss of the job, the guilty plea and good character. He bound the Appellant over for 12 months to be of good behaviour, in the sum of $200.

The Appellant now says that this sentence is harsh and excessive. In his submissions, counsel submitted that the Appellant was a first offender, that he had graduated from the Fiji College of Advanced Education, that he was now about to be employed as a temporary teacher at the Ministry of Education, that his conviction would prevent him from getting this job, that the items stolen had been recovered and that the adverse effects of the conviction and sentence in this case far outweighed the seriousness of the offence.

State counsel disagreed. He said that the tariff for breach of trust cases was 18 months to 3 years, and that the aggravating factor in this case was that the Appellant had bit the hand that fed him. Further, he did not plead guilty at the first instance and could not be given credit for an early guilty plea. He said that the sentence was in fact very lenient despite the Appellant’s earnest attempts to further his education and career.

The issue is whether the circumstances in this case justify the setting aside of the conviction, and imposing instead an absolute discharge. Absolute discharges are reserved for the most exceptional of cases, where the appellant was guilty of only a technical breach of the law, or where his conduct was not morally culpable. One example might be where the offender having taken legal advice, was erroneously told that he could sell goods, or build a garage without a licence or planning permission. In fact, most cases of offenders acting for instance, under an honest mistake of law, would not be prosecuted at all. Thus the absolute discharge is an exceptional sentence, reserved for those who deserve no punishment at all, for breaking the law.

In Tipple v. Police (1994) 2 NZLR 362, Tipple was a licensed arms dealer, who had been told by the police that there would be no prosecution for the sales of firearms provided they were by way of export. He sold firearms to a Russian seaman on a wharf and he was convicted of the supply of firearms to unlicensed persons. The High Court at Christchurch held that an absolute discharge was justified because the offender’s error was “officially induced.”

In R v. O’Toole (1971) 55 Cr. App. R. 206, an ambulance driver answered an emergency call and was convicted of dangerous driving. The English Court of Appeal held that an absolute discharge was appropriate because there was no moral blame on the ambulance driver. In Carol Mitchell Tebutt v. Commissioner of Inland Revenue Crim. App. AAU0005 of 1999S, the appellant was convicted of failing to file income tax returns. She was discharged without conviction. On appeal by the Commissioner, the Court of Appeal said, adopting the comments of Scott J in Commissioner of Inland Revenue v. Atunaisa Bani Druavesi Crim. App. HAA0012 of 1997, that the section 44 powers should be reserved for those cases where the direct or indirect consequences of a conviction are out of all proportion to the gravity of the offence and “after the Court has balanced all the public interest considerations as they apply in the particular case.”

This appeal cannot be such a case. I accept that the Appellant is now an example to other students. I accept that the references and college results submitted to me, show that the Appellant in his conduct, now shows an exceptional commitment to his religion and his community. I also accept that he may not be employed in an occupation of his choice, because of the adverse effects of the conviction entered against his name.

However, other offenders who have committed similar offences, have received custodial sentences. This is because cases of employees who steal from the employers, are considered very seriously by the court. Employers must be able to trust the people they employ. They have no choice but to trust them. The livelihoods of many people depend on that relationship of trust. A breach of that trust, affects business relationships, and relationships within the company. In this case, the Appellant was employed as a security officer, to protect the assets and goods of Nestle. Instead he stole from the factory. He was fortunate, (notwithstanding his youth and good character) to receive a non-custodial sentence.

Indeed, I believe that the learned Magistrate took into account the Appellant’s character, and his youth when he imposed the binding-over order. It is correct that the Appellant was sentenced after a long delay, but that delay was of his own making. His failure to check with the Magistrates’ Courts, when he received no notification of the progress of his case, and his acceptance of what was told to him apparently by a police prosecutor, are not acceptable excuses for his two year absence from court, leading to the execution of the bench warrant. He is an educated young man, who could have discovered, with very little effort, that a bench warrant had been issued because of his non-appearance.

In all the circumstances, despite the compelling evidence of good character, I do not consider that there is any merit in this appeal. It is dismissed.

Nazhat Shameem
JUDGE

At Suva
1st April 2005