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Fiji Independent Commission Against Corruption v Lata [2013] FJHC 128; HAC65.2011 (21 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC65 of 2011

BETWEEN:

FIJI INDEPENDENT COMMISSION AGAINST
CORRUPTION ("FICAC")

AND :

ASHWINI LATA

BEFORE : HON. MR. JUSTICE PAUL MADIGAN

Counsel : Ms E. Leweni for FICAC

Mr. F. Vosarogo for Accused

Date of hearing : 18 March 2013

Date of sentence : 21 March 2013

SENTENCE

[1] On the 18th March in this Court the accused entered pleas of guilty to five counts of forgery and five counts of embezzlement. The charges were in pairs and each pair indicted her with forging figures in bank lodgment forms and embezzlement of the resultant small sum.

[2] An appropriate set of facts put to the accused was agreed and she was consequently found guilty of and convicted of all ten counts.

[3] The facts of the case were that at all relevant times the accused was employed in the Judicial Department as a revenue collector and in particular collecting fines, maintenance payments and other sundry payments in the Civil Registry of the Magistrates' Court. These monies were receipted, accounted for and deposited in the bank using bank lodgment forms. Unfortunately it was not noticed in October and December 2009, or in January 2010 that the amounts banked did not agree with the amounts entered on the bank lodgment forms.

[4] On the divers dates referred to in the charges, the accused received monies in the Registry and instead of entering these exact sums in the bank lodgment forms, she made a false document by entering falsified figures in the duplicate and triplicate copies of the lodgment form thereby creating a document which would be used as genuine. The balance of money collected and not accounted for was then kept by the accused and used for her own purposes thereby embezzling the sums.

[5] The total sum embezzled by the accused through these five frauds was F$1,700, a sum which she had received by virtue of her employment and a sum which she applied to her own purposes.

[6] The accused is 31 years of age and married with one young child. This is the first time she has come before any court in Fiji. Her counsel advances a strong written plea in mitigation on her behalf, not the least stressing her plea of guilty and her remorse, evidenced by her offer to pay restitution to the Judicial Fund and even to forfeit her $500 bail bond as costs to the prosecution. He urges the Court to pass a sentence that is suspended in whole or in part.

The law

[7] The maximum penalty for embezzlement under the Penal Code is fourteen years imprisonment and for forgery under s.341(1) (as charged) is two years imprisonment.

[8] It has been noticed only on preparation of this sentence that the five forgery charges in the Information have been charged as misdemeanours under section 341(1) of the Penal Code, when the offences are much more serious than that and could have been charged as felonies under section 336(3)(a) of the Code, attracting a sentence of seven years. It is not for this Court to tell FICAC what charges to lay and the sentence must be tailored to the charges that are in fact laid: if FICAC regard them as misdemeanours they will be sentenced as misdemeanours, attracting a maximum penalty of two years.

[9] In her written submissions, Counsel for FICAC cites cases supporting sentences for breach of trust in forgery cases of three years, which suggests that she was unaware of the maximum penalty the charges as laid should attract.

[10] In the circumstances, this Court will sentence the embezzlement counts in accordance with the authorities and use those sentences as the base sentence. The forgeries will be ancillary and secondary to those embezzlement counts.

[11] Embezzlement by an employee is a classic breach of trust and that being so, it has long been regarded by the Courts both here and in other common law jurisdictions that such criminality should lead to an inevitable term of imprisonment. In what is now a famous declaration of breach of trust principle, it was said in Barrick 7 Cr. App. R(s) 142:

"(the accused) will usually, as in this case, be a person of hitherto impeccable character. It is practically certain, again as in this case, that he will never offend again and, in the nature of things, he will never again in his life be able to secure similar employment with all that means in the shape of disgrace for himself and hardship for himself and also his family.

And later:

"In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small. Despite the great punishment that offenders of this sort bring upon themselves, the Court should nevertheless pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence. The sum involved is obviously, not the only factor to be considered, but it may in many cases provide a useful guide."

[12] In Sanjay Shankar Sharma HAC0003 of 2005S, Shameem J said, following Mahendra Prasad HAC009.02S, that an earnest and sincere wish to effect reparation to the victim and where that wish is prompt and an expression of remorse, a suspended sentence is not wrong in principle. In the Mahendra Prasad case (supra), Gates J (as he then was) said this:

"The public interest lies in the deterrence of dishonest practices by employees. Usually in such cases the gravity of the breach of trust needs to be marked by an immediate term of imprisonment no matter how sad the accused's story, or how compelling the mitigation in his favour."

[13] In Roberts [2004] FJHC 51, Shameem J when considering an appeal against a sentence of 18 months suspended for three years for a total of four counts of larceny by servant and in canvassing previous case law on the matter, held that:

"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."

Analysis

[14] Theft of monies from Government Funds by an employee in the course of his/her employment is a very serious matter indeed, and the authorities establish a tariff of immediate imprisonment of between 18 months and three years.

[15] The accused's plea of guilty came on the eve of trial and the Court does not agree therefore that the plea is a strong indication of remorse. Similarly her offer to make full restitution of the $1,700, an offer made in the course of sentencing submissions, cannot at such a late stage be any expression of remorse. As Shameem J said in Jocelyn Deo HAC008 of 2005S and Sanjay Shankar Sharma HAC003 of 2005, a late offer to repay monies stolen is not remorse but a cynical attempt by the accused to buy (her) way out of jail. I agree.

[16] Ms Lata comes before me for sentencing with the following factors which are not in her favour:

(i) She stole money from the Government Revenue.

(ii) It was an obvious breach of trust in the course of her employment.

(iii) She refused to co-operate with the authorities from the time of her arrest in early 2011 until the eve of her trial.

(iv) She made no attempt whatsoever to repay any of the monies until the day that she advanced mitigation of her sentence in this Court.

[17] To counter those aggravating features it can be said in favour of Ms Lata that:

(i) The amount misappropriated is small ($1,700).

(ii) The fraud was practiced over a very short time (October 2009 to January 2010).

(iii) Although late, there is restitution that has been paid into Court awaiting further order.

(iv) She has a clear record.

(v) She did finally plead guilty thus saving the Court's time.

(vi) The frauds are not regarded by FICAC as being particularly serious; they being charged only as misdemeanours.

[18] Counsel for the applicant urges the Court to pass a sentence of periodic detention, as was done by Goundar J in Vocea HAC129 of 2009. In that case the accused had fraudulently converted the sum of NZ$130,266 when holding the office of Permanent Secretary for Works. In sentencing the accused the learned Judge cognizant of the breach of trust involved and the accused's duty to uphold the ideals of the public service, ordered that he serve the first six months of a two year sentence partly in custody (weekdays) and partly at large and then the last 18 months to be entirely suspended.

[19] Terms of periodic detention are novel to this jurisdiction, having been introduced by the Sentencing and Penalties Decree 2009, on February 1st, 2010. There is not yet enough case law to establish principles of sentencing in this regard, but it is safe to say that such terms should only be made use of in very exceptional circumstances. Apart from being an obvious nightmare for the Prisons Department to administer (which should be no impediment to the sentencing Court) it is hard to understand the benefits of such a sentence to a fraudster or an embezzler. Goundar J justified the adoption of periodic detention on the basis that Mr. Vocea was remorseful and on the basis that he was originally the victim of contradictory alternative charges, despite the blatant breach of trust and the large sum of money involved over a long period of time. I decline to follow Vocea and impose a term of periodic detention in this case.

[20] It is this Court's view that periodic detention would not assist this accused. It is almost unthinkable that she would re-offend (if indeed she could find similar employment anywhere) and there is no need therefore for rehabilitation. She has no circumstances peculiar to herself that would warrant periodic detention; for example the need to care for aged or handicapped loved ones during the week, or the need to perform duties (either by way of employment or personally) that demand her physical attention that would overridethe need for retributive sentencing.

[21] In following accepted authorities, the facts and features of this case demand a finite term of imprisonment, to be served in custody or wholly suspended and nothing else.

Conclusion

[22] The authorities dictate that the accused be sentenced to an immediate custodial term of eighteen months imprisonment. This is on the basis of theft as a government servant, a breach of trust and no clear evidence of genuine remorse (despite the late plea and the very late offer of restitution).

[23] Given the accused's clear record, the small amount of monies stolen, the lack of evidence of sophisticated planning, the short period of offending and the trivial view of the prosecutor's regard to the nature of the 5 forgeries, I suspend the sentence for a period of three years. That is the sentence I pass for each of the ten convictions to be served concurrently.

[24] I order that the $1,700 paid into Court on 18 March 2013 be kept and receipted as restitution of funds in favour of the Consolidated Fund.

[25] I also order that costs in the sum of $500 be paid to the prosecution and be taken from the accused's bail bond.

[26] Suspended sentence explained.

[27] 30 days for either party to appeal.

Paul K. Madigan
JUDGE

At Suva
21 March 2013