IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA 033 OF 2013
[Suva Case File No. 908 of 2013]

BETWEEN:

AVINESH GOUNDAR
Appellant

AND:

STATE
Respondent

Counsel: Mr. Vere N for Appellant
 Ms. Fong M for Respondent

Judgment: 31st October 2013

JUDGMENT

1.	This is an appeal against the sentence imposed by a learned Magistrate in the Magistrate's Court at Suva on 31st of July 2013 for eight counts of Theft contrary to section 291 (1) of the Crimes Decree 2009 based on the unequivocal plea of guilty by the accused appellant to all the said counts after admitting the Summary of Facts pertaining to each count.

2.	The Petition of Appeal filed on 22nd August 2013 by the Legal Aid Commission on behalf of the Appellant highlights following grounds in support of his appeal against the sentence.

(i)	The learned Magistrate erred in law and in principle when she sentenced the appellant to a term of imprisonment without considering the facts that the appellant is a 1st young offender, pleaded guilty at the earliest possible opportunity and remorseful and sought forgiveness of court,

(ii)	The learned Magistrate erred in law and in principle by not taking into account that the appellant is the sole bread winner of his family and that all the items stolen from the complainant have been fully recovered,

(iii)	The learned Magistrate erred in law and in principle when she did not exercise her discretion to suspend the appellant's sentence,

(iv)	The learned Magistrate erred in law and in principle when she considered the complainant's company is at a loss and continued to be at a loss as an aggravating factor when in fact all the stolen items have been fully recovered, and;

(v)	The learned Magistrate erred in law and in principle when sentenced the appellant for 12 months imprisonment with a non-parole period of 11 months imprisonment.

3.	The appellant was charged on the following 8 counts of 'theft' contrary to section 291 of the Crimes Decree 2009.

COUNT ONE

Statement of Offence

 THEFT: Contrary to Section 291 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

AVINESH GOUNDAR on the 18th day of March 2013 at Suva in the Central Eastern Division dishonestly appropriated (stolen) assorted fuel filters to the value of $947.70, the property of Dae Myung Fishing Gear Manufacturing Limited by raising a false delivery number 1851 under a customer, name Fulton and Hogan Highways knowing no such orders were placed.

COUNT TWO

Statement of Offence

 THEFT: Contrary to Section 291 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

AVINESH GOUNDAR on the 19th day of March 2013 at Suva in the Central Eastern Division dishonestly appropriated (stolen) assorted fuel filters to the value of $1232.00, the property of Dae Myung Fishing Gear Manufacturing Limited by raising a false delivery number 1852 under a customer, name PMCS knowing no such orders were placed.

COUNT THREE

Statement of Offence

 THEFT: Contrary to Section 291 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

AVINESH GOUNDAR on the 20th day of March 2013 at Suva in the Central Eastern Division dishonestly appropriated (stolen) assorted fuel filters to the value of $1524.00, the property of Dae Myung Fishing Gear Manufacturing Limited by raising a false delivery number 1853 under a customer, name Vatulele Island Resort knowing no such orders were placed.

COUNT FOUR

Statement of Offence

 THEFT: Contrary to Section 291 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

AVINESH GOUNDAR on the 20th day of March 2013 at Suva in the Central Eastern Division dishonestly appropriated (stolen) assorted fuel filters to the value of $1232.00, the property of Dae Myung Fishing Gear Manufacturing Limited by raising a false delivery number 1854 under a customer, name Vatulele Island Resort knowing no such orders were placed.

COUNT FIVE

Statement of Offence

 THEFT: Contrary to Section 291 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

AVINESH GOUNDAR on the 26th day of March 2013 at Suva in the Central Eastern Division dishonestly appropriated (stolen) assorted fuel filters to the value of $343.00, the property of Dae Myung Fishing Gear Manufacturing Limited by raising a false delivery number 1857 under a customer, name Blacktop Investment knowing no such orders were placed.

COUNT SIX

Statement of Offence

 THEFT: Contrary to Section 291 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

AVINESH GOUNDAR on the 26th day of March 2013 at Suva in the Central Eastern Division dishonestly appropriated (stolen) assorted fuel filters to the value of $708.98, the property of Dae Myung Fishing Gear Manufacturing Limited by raising a false delivery number 1857 under a customer, name Blacktop Investment knowing no such orders were placed.

COUNT SEVEN

Statement of Offence

 THEFT: Contrary to Section 291 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

AVINESH GOUNDAR on the 2nd day of April 2013 at Suva in the Central Eastern Division dishonestly appropriated (stolen) assorted fuel filters to the value of $8185.22, the property of Dae Myung Fishing Gear Manufacturing Limited by raising a false delivery number 1858 under a customer, name Bekana Garden Island Resort knowing no such orders were placed.

COUNT EIGHT

Statement of Offence

 THEFT: Contrary to Section 291 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

AVINESH GOUNDAR on the 2nd day of March 2013 at Suva in the Central Eastern Division dishonestly appropriated (stolen) assorted fuel filters to the value of $9529.80, the property of Dae Myung Fishing Gear Manufacturing Limited by raising a false delivery number 1906 under a customer, name Bekana Island Resort knowing no such orders were placed.

4.	Upon the appellant pleading guilty to all the above 8 charges and admitted the Summary of Facts, the learned Magistrate had analysed the offending background. For the convenience of this court, the following diagram was prepared.

Count No.	Involved Amount 
FJD	Starting Point (months)	Increase Aggravating
(+9 months)	Decrease Mitigating
(-6 months)	Early plea (-1/3	Final Sentence	
1	$947.70	6 months	15 months	9 months	3 months	6 months	
2	$1232.00	9 months	18 months	12 months	4 months	8 months	
3	$1524.00	9 months	18 months	12 months	4 months	8 months	
4	$1232.00	9 months	18 months	12 months	4 months	8 months	
5	$343.00	3 months	12 months	6 months	2 months	4 months	
6	$708.98	6 months	15 months	9 months	3 months	6 months	
7	$8185.22	15 months	24 months	18 months	6 months	12 months	
8	$9529.80	15 months	24 months	18 months	6 months	12 months	

5.	The learned Magistrate has considered the following aggravating factors to increase the starting point of imprisonment from 9 months,

(vi)	Breach of trust as an employee of Dae Myung Fishing Gear Manufacturing Limited as a salesman;

(vii)	Pre-planned commission of offence;

(viii)	Total loss caused to the company was $23,693.70 and 'very little restitution' has been made by the appellant leaving the complainant's company to suffer a loss, and;

(ix)	Vehicle parts were stolen from the employer for stocking up of 'appellant's own vehicle parts shop.

6.	Following factors had been considered in Mitigation.

(x)	24 years old
(xi)	Self employed
(xii)	First and young offender
(xiii)	Seeks forgiveness
(xiv)	Fully co-operated with the police
(xv)	Remorseful
(xvi)	Promises not to re-offend.

Apart from the 6 months decrease for the above mitigatory grounds, the learned Magistrate had given a further 1/3 reduction for the appellant's early plea of guilt and ordered the final sentences to run concurrently, 12 months to be the maximum.

7.	The learned Counsel for the appellant whilst citing section 15 (3) of the Sentencing and Penalties Decree 2009 and decided case authorities of Prasad v The State [1994] FJHC 132; HAA 0032j. 94s – 30th of September 1994; Prasad v State [1994] FJCA 19; AAU 0023u.93s – 24th May 1994; Singh v. The State [2000] FJHC 115; HAA 0079j.2000s – 26th October 2000; Nariva v. The State [2006] FJHC 6; HAA 0148J.2005S – 9th February 2006; State v. Mocevakaca [1990] FJHC 87; Director of Public Prosecutions v. Radovu [1996] FJHC 22 (Labasa High Court Criminal Appeal), DPP v. Jolame Pita 20 F.L.R. 5 and FICAC v. Vocea [2010] FJHC 479 (Criminal Case No. HAC 129 of 2009), invites this court to suspend the sentence of the appellant as the learned Magistrate had failed to consider the legal principles laid down in the above mentioned decisions.

8.	In response, the learned State Counsel submitted to court that the learned Magistrate had not fallen into error when she imposed a custodial sentence of 12 months imprisonment in this instance as it is well within the tariff and in accordance with the existing guidelines of higher courts. The Respondent does concede that the learned Magistrate had not considered the fact in mitigation that the appellant is the sole bread winner of the family and she had 'unfortunately taken the mistaken view' that the items had not been fully recovered, which resulting the learned Magistrate not taking into account two important mitigating factors. Furthermore, the Respondent concedes the learned Magistrate did fall into error when imposed 11 months non-parole period for a 12 months period of imprisonment.

9.	As Justice Madigan highlighted in the case of Mikaele Ratusili v. State (High Court Criminal Appeal No. HAA 011 of 2012) after having analysed Justice Shameem's dicta in Jone Saukilagi (HAC 21 of 2004), thefts of large sums of money and thefts in breach of trust, whether 1st offence or not can attract sentences up to three years and planned thefts will attract greater sentences than opportunistic thefts, whilst the nature of the relationship between the offender and victim also to be considered in sentencing the accused.

10.	The English Court of Appeal in the case of Barrick 7 Cri. App. R(s) 142 set out the guidelines principles applicable in the cases of breach of trust in the following manner.

"In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money is very 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" said at p. 146.

11.	In the above context, the maximum sentence of 12 months imprisonment for 8 counts of theft where the accused had breached the trust of his employer is well within the accepted tariff. Thus, this court sees no reason to interfere with the overall sentence ordered by the learned Magistrate.

12.	Nevertheless, this court agrees with the appellant that the learned Magistrate had misdirected herself when concluded that the 'stolen items' were not fully recovered. The admitted summary of facts, as reflected in page 33 and 34 of the case record clearly states that all the stolen items were recovered from Lot No. 10, Namuka Street, Samabula, soon to be opened spare parts store the accused was planning to launch. Thus, the mistaken factual basis had led the learned Magistrate to consider this as an aggravated factor, instead of a ground of mitigation.

13.	Now this court turns to see whether there would have been any difference to the final sentence had the learned Magistrate considered the 'full recovery' of items had she was not so misdirected.

14.	As admitted by the appellant in Summary of Facts, it was the complainant who had initiated the search of appellant's soon to be opened store upon receiving information that the appellant was on the verge of starting up his own spare parts business in competition with the complainant. It is at that point the complainant had sighted items such as assorted fuel filters, bearings, water filters, Hydraulic filters, fuel and water separators, contact cleaners, batteries, sand papers, wire brush, hose clips and grease, suspected to be from his shop. Upon the complainant failing to contact the customers who had purportedly purchased these items on Tax Invoices, he had reported this matter to the Fraud Section of the Crime Investigation Department in Central Police Station. When the investigation commenced by Detective Constable 3079 James Sukul and confronted the appellant to produce the purchase and import documents of the stock, the appellant had admitted that these items were taken from complainant's shop.

15.	This background of offending by the appellant, being a salesman of the complainant's company was narrated to show that even though the stolen items been fully recovered, that was not a result of his own motion. Instead the expectation of the appellant to open up his own spare part store, highly appreciative had it been done in any legitimate way, with the expense of the complainant's items is indicative the amount of pre-planning underlined the offences. This conduct of the appellant could have continued with more monetary involvement, had it not been detected at that point. The more the court sees the well calculated pre-planning of the appellant, the more it widens the 'trust' between the employer and the employee, here the complainant and the appellant. Therefore, it is the view of this court that even though the learned Magistrate took the factual position correctly about the full recovery of items, nothing would have been substantially changed in the final analysis. Thus, ground (iv) of the petition of appeal fails.

16.	Now this court wishes to pursue whether the learned Magistrate would have suspended the term of 12 months imprisonment in view of the appellant been a remorseful 1st offender, who pleaded guilty to the charges at the very outset. Whenever a substantial amount is involved with a serious breach of trust and lot of pre-planning to utilize the proceeds of crime to perpetrator's own advantage, an immediate custodial sentence is inevitable, unless there are strong and convincing mitigatory grounds to compensate such a custodial sentence. The relationship between the employer and employee is interwoven with 'mutual trust' and the betrayal of such trust by either party shakes the entire foundation of that relationship. Especially when such a breach is tainted with criminality, that strikes the very roots of employer – employee relationship. In this back drop personal mitigation factors such as being a first offender with a blameless character or the sole bread winner of the family should carry less weight and will hardly undermine the need of a deterrent punishment. Thus, I do endorse the decision of the learned Magistrate to impose a custodial sentence in this instance and therefore, (i), (ii) and (iii) grounds of appeal do not carry any weight.

17.	Nevertheless, this court agrees with the last ground of appeal stipulated in the Petition of Appeal. Section 18 (3) (4) of the Sentencing and Penalties Decree 2009 says as follows:

18__ (3) If a court sentences an offender to be imprisoned for a term of less than 2 years but not less than one year, the court may fix a period during which the offender is not eligible to be released on parole. 

(4) Any non-parole period fixed under this section must be at least 6 months less than the term of the sentence. 

The learned Magistrate had erred in law when imposed a non-parole period of 11 months to the final sentence of 12 months imprisonment.

18.	Finally, this court is left to deal with the 'differing starting points' selected by the learned Magistrate as clearly reflected in column 3 of the diagram in paragraph 4. It seems to be somewhat strange as all the 8 counts contained the same offending background with the same accused, same complainant, and the same modus operandi. As the learned State Counsel submits the learned Magistrate would have chosen the differing starting points to reflect the differing monitory values of each count as visible in column 3 and 2 of the above diagram. Nevertheless, in this type of a situation where several counts are involved with differing starting points, it is most desirable for the sentencing court to make it clear in express terms the reason for such a difference without leaving the parties in ambiguity. 

19.	In the light of the above legal and factual basis, I do not see any reason to interfere with the findings of the learned Magistrate, apart from the imposed non-parole period. Thus, this court orders the final sentence to stand as 12 months imprisonment as ordered by the Magistrate's Court with a non-parole period of 6 months.

20.	Subject to the above variation, the appeal is dismissed.

Janaka Bandara
JUDGE

At Suva
Naipote Vere & Associates for the Appellant
Office of the Director of Public Prosecutions for the Respondent