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State v Panapasa [2011] FJHC 697; HAC034.2009 (3 November 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 034 of 2009

STATE

v.

AKANISI PANAPASA

Hearing: 17 – 31 October 2011
Sentence: 3 November 2011

Counsel: Ms N. Tikoisuva for State
Mr. K Shah for Accused

SENTENCE

[1] Akanisi Panapasa, you stand convicted of larceny by servant on three counts, after a trial. The evidence of thefts against you was compelling.

[2] The maximum penalty prescribed for larceny by servant is 14 years imprisonment.

[3] The thefts were committed between January 2006 and July 2008, while you were employed by Budget Rent A Car, Walubay branch, as a manager. At the same period you also held the position of marketing officer of Budget Rent A Car. Budget Rent A Car is a subsidiary of Niranjans Group and is in the business of leasing or renting motor vehicles.

[4] You were employed by Budget Rent A Car as a reservation officer in 1992 after you had completed your high school. You do not hold any tertiary qualification but you rose to the management position after working for the company for nearly 16 years. In July 2008 you were terminated from your employment after an internal audit of the accounts of Walubay branch revealed various discrepancies.

[5] You were interviewed by the police under caution in August 2008. You confessed to the thefts. Your confession was the only significant evidence that showed some remorse by you, but you diminished the value of your confession as a sign of remorse by challenging it on the ground that it was fabricated by the police.

[6] Over a period of two and half years you systematically stole from your employer a total sum of $48,874.10. This is a substantial amount by Fiji standards.

[7] By virtue of your position as the branch manager you were responsible for the banking of the company's income. In 2006, you short banked the income on twenty occasions. These transactions made up count 1. The amounts varied from $109.00 to $2,000.00. The total amount you stole in 2006 was $16,225.60.

[8] In 2007, you short banked the income on seventeen occasions. These transactions made up count 2. The amounts varied from $365.00 to $1,800.00. The total amount you stole in 2007 was $12,001.00.

[9] In 2008, you short banked the income on about nine occasions. These transactions made up count 3. The amounts varied from $448.50 to $11,386.00. The total amount you stole in 2008 was $20,647.50.

[10] You were systematic in your offending. You took the short banking amounts for your own use. To conceal your thefts and to avoid detection you balanced the accounts by making false entries.

[11] When you gave evidence, it became obvious that you were caught in a web of deceit and you had to tell lies to conceal your dishonesty. You blamed your junior staff and even your superiors for your own dishonesty.

[12] You have made no effort to reimburse the lost funds to your employer. Instead, your counsel submitted that the lost funds were insured and your employer has been compensated. There is no evidence that the loss to your employer has been compensated by insurance pay out. Even if that was the case, you are not entitled for any credit because the source of compensation is not you, but a third party, in this case, the insurance company. So the loss that you are responsible for is borne by the insurance company.

[13] Your employer, Mr Nitesh Niranjan has submitted a victim impact statement. He stated the management lost confidence in their ability as they never expected a trusted manager to steal.

[14] The aggravating factors are the serious breach of trust reposed to you by your employer and the systematic manner in which the thefts have been perpetuated over a period of two and half years. You exposed your junior employees to criminal prosecution by directing them to make false entries to conceal your dishonesty. Fortunately, none of them were charged and prosecuted because the evidence revealed that they were not party to the offences as they did not know you were short banking the income and stealing from your employer.

[15] Mr. Shah has said all he could say in mitigation on your behalf. You are 46 years old. You are married. Your children are attending school.

[16] After you were terminated from Budget Rent A Car, you were employed by Euro Car Rentals. The 2006 offences are five years old. The charges have been hanging over you for nearly three years. You are a first time offender. I take all these factors to have mitigated your offending.

[17] In sentencing you, I bear in mind the guidelines set out in the English case of John Barrick (1985) 81 Cr. App. R78 at 82, and adopted by the High Court in Panniker v. State Cr. App. No. 28 of 2000. Your counsel recommends a community work order for you. I think a community work order is inappropriate given all the circumstances of this case. After the conviction in this case, the chances of you reoffending is unlikely. However, dishonesty is an offence that the court should denounce and deter others from committing.

[18] On each count, I pick 3 years as my starting point. I add 3 years to reflect the aggravating factors and reduce 2 years to reflect the mitigating factors.

[19] On each count, I sentence you to 4 years imprisonment to be served concurrently. A term of 4 years cannot be suspended. I order that you serve 3 years imprisonment before you are eligible for parole.

[20] You have 30 days to appeal with the leave of the Court of Appeal.

Daniel Goundar
JUDGE

At Suva
3 November 2011

Solicitors:
Office of the Director of Public Prosecutions for State
Messrs. Shah & Associates for Accused