IN THE HIGH COURT OF FIJI
AT LABASA
[APPELLATE JURISDICTION]

CRIMINAL APPEAL CASE NO. HAA 15 OF 2019
(Magistrates’ Court Case No. 388 of 2012)

BETWEEN:		SHAVIN VINIL MAHARAJ
APPELLANT
AND:			THE STATE
RESPONDENT

Counsel:	Ms K Boseiwaqa for the Appellant 
		Ms A Vavadakua for the Respondent

Date of Hearing:	30 October 2019
Date of Judgment:	31 October 2019

JUDGMENT

[1]	Following a trial in the Magistrates’ Court at Labasa, the appellant was convicted of one 	count of theft and sentenced to 2 years’ imprisonment. The sentence was partially 	suspended, that is, 15 months to serve in prison and 9 months suspended for 2 years.  	This is an appeal against that sentence. 

[2]	The facts of the case were that the appellant was part of a dishonest scheme with his work 	colleagues to steal from his employer, Westpac Bank. At the relevant time, he was 	employed as a teller at Labasa branch. Altogether five employees were involved in the 	scheme including the branch manager. All five were charged and convicted. 

[3]	The scheme was to take the funds from the bank disguised as loans by raising withdrawal 	slips and offsetting the accounts with vouchers. The scheme which was contrary to the 	bank’s procedures was sanctioned by the branch manager who was the principal offender. 	The scheme was discovered and the appellant was exposed after an internal inquiry by 	the bank. When confronted he reimbursed a sum of about $20,000.00 which he took from 	the bank. The total sum defrauded by all five accused was about $180,000.00. All five 	employees were terminated by the bank.

[4]	The sole ground of appeal is that the learned magistrate made an error by giving the same 	discount for the mitigating factors to all accused despite the difference in circumstances 	between the appellant and his co-accused. However, the appellant did not identify the 	circumstances that made his case different from others. The focus of the submissions was 	that the learned magistrate did not quantify the discount that she gave for each mitigating 	factor. The appellant and his three other co-accused received the same discount of 12 	months for their mitigating factors.  The learned magistrate justified her decision to give 	the same discount saying the four accused had common mitigating factors. The principal 	offender received a discount of 6 months only.

[5]	Apart from the payment of restitution, there were hardly any mitigating factors. The 	appellant’s good character carried very little mitigating value due to the fact that he was 	employed by the bank due to his good character and he breached the trust of his employer 	by stealing. At the time of sentencing, the appellant was 34 years old and married with 	two young children. He was driving a taxi for a living. However, his family or personal 	circumstances were of little mitigating value. Given the presence of little mitigating 	factors, the discount of 12 months was generous. 

[6]	This was a case where the appellant together with his colleagues dishonestly 	misappropriated funds from his employer. The scheme to defraud the bank was 	systematic and coordinated. 

[7]	The maximum penalty prescribed for theft is 10 years imprisonment. The tariff is from 4 	months to 3 years imprisonment (Waqa  v State [2015] FJHC 729; HAA017.2015 (5 	October 2015)). In cases of theft involving a breach of trust, suspension is only 	considered if there are special circumstances present.  As the Court of Appeal said in 	Deo v The State [2005] FJCA 62; AAU0025.2005S (11 November 2005) at [27]-[29]:

	[27] Frauds by an employee which involve a breach of trust strike at the very 	foundations of modern commerce and public administration. It has long been the 	rule that such cases must merit a sentence of imprisonment. Where the sentence 	imposed is of such a length that the court has power to consider suspending it, the 	sentencing judge must consider that option. However, that decision should only 	be made where there are special circumstances meriting such a sentence and, in 	all cases, the sentencing court should not be too quick to find such circumstances.

	[28] That applies with particular emphasis in cases involving betrayal of a 	position of trust where matters of personal mitigation will usually be subordinate 	to the seriousness of the offence. In most such cases, the offenders share many 	common aspects of mitigation; most are first offenders, most will, as a result of 	their fraud, have lost a good job and have little chance of ever being given such 	responsibility again and almost all will never commit a similar crime in future. 	Similarly, most are relatively well educated and so will find it easier than many 	released from prison to find at least reasonably remunerated employment in 	future.

	[29] Therefore we would suggest that, in such cases, personal mitigation should 	carry less weight than it might in other crimes. The same will generally apply to 	efforts at rehabilitation. The result is that it must only be in the most exceptional 	cases of breach of trust that the court should consider personal mitigating factors 	are sufficient to outweigh the seriousness of the crime to the extent of allowing a 	suspended sentence.

[8]	The appellant is fortunate that his sentence was partially suspended. The restitution paid 	by him was not an indication of genuine remorse to constitute special circumstance to 	suspend the sentence. The appellant contested the charge. He was found guilty. There 	were no special circumstances to suspend the sentence. 

[9]	There is no error in the exercise of sentencing discretion that has prejudiced the appellant.

[10]	The appeal is dismissed. 

							…………………………….. …….
							Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Legal Aid Commission for the Appellant
Office of the Director of Public Prosecutions for the Respondent