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Boyte v State [2012] FJHC 1317; HAA22.2012 (7 September 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA 22 OF 2012

LEVENTE BOYTE
APPELLANT :

and

STATE
RESPONDENT

Counsel : Appellant in Person
Mr. T. Qalinauci for the State

Date of Hearing : 5 September, 2012
Date of Judgment: 7 September, 2012

JUDGMENT

1. On the 29th June 2012 in the Magistrates Court at Lautoka, the appellant entered a plea of guilty to:
   
   1. Two counts of unauthorized access to restricted data, contrary to section 343 (1) of the Crimes Decree 2009, and
      
   2. Two counts of Theft, contrary to section 291 (1) of the Crimes Decree 2009.
      

He was sentenced to concurrent terms of one year for each of the unauthorized access charges and two years for each of the two theft charges.

2. The appellant appeals these sentences on the grounds that
   
   1. He was not given enough discount for being a first offender and for being a foreigner in this country;
      
   2. The sentence is manifestly harsh and excessive in all circumstances of the case.
      
3. The facts of the case were that the appellant who is a Romanian national was the companion and carer for the complainant a retiree aged 65 years. They had sailed the world together for five years. The complainant went to Australia leaving the appellant in Fiji to apply for a visa to go there as well. The appellant having handled the complainant's financial affairs during their time together was familiar with his bank account details and their respective P.I.N numbers. He ran out of money in Fiji, and accessed both the bank account and a credit card account by computer, appropriating $2389.00 and $1949.00 respectively. The complainant discovering the withdrawals notified an agent in Fiji to report it to the Police. The appellant was arrested and interviewed under caution when he admitted accessing the accounts and spending the money on daily living expenses.
   
4. The appellant is single aged 35 years and having earlier trained as a priest, went to France and worked in a telecommunications company before joining the complainant on his yacht. He pleaded guilty at the outset and was very remorseful. He has no criminal record in Fiji.
   
5. In casting his sentence the Magistrate was of the view that the aggravating

features of this case were:

1. It was planned and pre-meditated;
2. Stolen funds were high ($4338);
3. There was a breach of trust;
4. The money was all spent.
   

The mitigating features he held to be:

1. A first offender;
2. Remorse and apology;
3. Pleas of guilty.
   
6. For each offence of unauthorized access he took a starting of 12 months imprisonment and for each theft he took a starting point of two years. He enhanced each sentence by six months for the mitigating features arriving at a total of concurrent terms of two years. He declined to suspend the term.
   
7. The offence of unauthorized access to restricted data has a maximum term of two years imprisonment. It is a new offence introduced by the Crimes Act 2009 and there are no precedents for it in Fiji. Given that it is an offence which could have very serious consequences if access is made to sensitive or government data, it is, despite its low maximum penalty, a potentially serious offence. In these days of liberal access to the internet and frequent well publicised examples of "hacking", an appropriate tariff for the offence would be in the range of nine to eighteen months, the top end of that band being for access to sensitive or government information and the lower end for some insouciant accessing of social networking data for example.
   
8. In this case the appellant has accessed accounts which he previously had

authority so to do. As a consequence he had the information to be able to do that, information provided to him by the holder of the accounts. This of course does not make subsequent unauthorized access any less criminal, but it could provide strong mitigation for subsequent activity. The complainant, in the knowledge that somebody had the means to access his accounts, should have arranged his affairs, passwords etc., to prevent access if he had withdrawn his authority. He did not do so and although the appellant had no authority to access the data on these two occasions, considerable weight should have been given to him on his plea for mitigation either in discount of the sentence chosen, or by a lower starting point being chosen.

9. Although the appellant was charged with two counts of theft and has pleaded guilty to those and been sentenced accordingly, it is in this Court's view that the charges are inappropriate. He could have faced a more fraud related offence such as conversion by trustee (section 320) on obtaining financial advantage (section 326). However, this Court must review the offence and the sentence as charged below. The tariff for theft for the first time is in the range of two to nine months (see this Court's judgment in Ratusili HAA 11/12). It was also said in that case that thefts in breach of trust can attract sentences of up to three years, and that regard should be had to the nature of the relationship between offender and victim.
   
10. These two thefts were definitely planned and certainly in breach of trust thereby calling for a sentence beyond the 2 to 9 month tariff. More regard should have been had however to the relationship between the complainant and the offender which was one it appears of almost father and son. The appellant took the money he required to support himself while waiting to join the complainant in Australia and as he told this Court he could have taken much more if he were to be dishonest.
    
11. In the circumstances and given the breach of trust the sentence of two years is appropriate but more allowance could have been made for the particular mitigation in this case.
    
12. Pursuant to section 256 (2) of the Criminal Procedure Decree 2009 I quash the sentences passed below and recast the sentences. For the unauthorized access to restricted data, I take a starting point of twelve months imprisonment, I add six months for the breach of trust and planning and deduct nine months for the pleas of guilty, remorse and special relationship resulting in a term of nine months for each of the access convictions.
    
13. For the theft of the sums of money (which contrary to the Magistrate's view) are not large I take a starting point of 18 months and in adding six months for the breach of trust and the planning there is an interim total of twenty four months. From this I deduct 12 months for his plea, his time spent in remand prior to conviction and his remorse to give a total of twelve months for each of the two charges of theft.
    
14. There is no known principle in Fiji law allowing discount for being a foreigner and nor should there be. We do not wish to encourage foreigners to offend here and receive credit for their national status. All nationalities be they Fijian or not are treated equally in this Court, and in very serious cases with long sentences it then becomes a matter for the representatives of a prisoner's state and the Executive. It does not and should not concern a sentencing court.
    
15. The appeal succeeds to the extent that the sentences passed below are quashed and new concurrent sentences passed of
    

That is a total sentence of twelve months with no minimum term imposed.

P. Madigan
Judge

At Lautoka
7th September 2012

Solicitors : Appellant in Person

Office of the Director of the Public Prosecution for the State