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State v Patricia [2010] FJMC 158; Criminal Case 318.2010 (4 August 2010)

IN THE RESIDENT MAGISTRATE’S COURT AT SUVA

Criminal Case No: 318 of 2010

DPP

V

1. MARAIA PATRICIA
2. SERASEINI KANA

For Prosecution: Ms. Lomani (DPP office)
For Accused: Ms. Karan R. of LAC

SENTENCE

1. You, MARAIA PATRICIA and SERASEINI KANA, are here today, to be sentenced on admission of guilt on your own accord for the following offences.
   

First Accused

1. 03 counts of Obtaining money by false Pretence – (Contrary to sec. 308 of the Penal Code)
   
2. 03 counts of Forgery – (Contrary to sec. 335 of the Penal Code).
   
3. 03 counts of Uttering forged document – (Contrary to sec. 343 of the Penal Code)
   
4. 03 counts of Making False Declarations – (Contrary to sec. 121 of the Penal Code)
   

Second Accused

1. One count of Forgery – (Contrary to sec. 335 of the Penal Code).
   
2. One count of Making False Declarations – (Contrary to sec. 121 of the Penal Code)
   

2. When this case was called in Court for the first time on 03rd May 2010, both of you have pleaded guilty to the charges and the Counsel appeared on your behalf made submission in mitigation.
   
3. According to the facts (which both of you have admitted), in November 2007, you Seraseni Kana having found that your late brother is entitle for some money from FNPF, had made arrangements to receive the money belong to your late brother and had asked Maria Patricia to impersonate to be one Anaseni Ratu (late brother’s wife) to withdraw that money. During the process you have made the first accused to act as your late brother’s wife and signed necessary documents to withdraw money. As a result of your actions the first accused had received $7475.02 from Public Trustee by way of a cheque.
   
4. Both of you then have had opened an account at Colonial National Bank in the name of the second accused person’s late brother’s wife and deposited the cheque. Then you Seraseini Kana had taken the ATM card issued to the 1st accused and gave $300 to her for her contribution.
   

Maximum Sentence and Tariff

5. According to Goundar J in State v. Chaudary [2008] FJHC 69.2007, 70.2007 & 71.2007 (on 19th February 2008), average sentence for a first offender with “Forgery” charge is one year imprisonment and in Hu Jung Yun v. The State [2005] HAA024 of 2005, three year sentence had been imposed.
   
6. In State v. Chaudary [2008] FJHC 69.2007, 70.2007 & 71.2007 (on 19th February 2008); Goundar J identified six months imprisonment as average sentence for Uttering false documents as per Lauzik Mukesh Chand v. The State [FCA AAU 013 of 1998].
   
7. In State v. Rajesh Kumar [2005] FJHC 477, Gates J (as he then was), had identified 1 count of Forgery, 10 counts for Uttering, 10 counts of Obtaining money on a forged document’ and 5 counts of Larceny by servant as “Medium Scale dishonesty Offences” and convicted the accused for 2 years imprisonment and suspended it for 2 years. In that case Gates J (as he then was), held that the ‘remorse shown by the accused was genuine”. Following observations were made with regard to the tariff.
   

“The tariff for medium scale dishonesty offences is 2 to 3 years imprisonment. For the worst cases, bearing in mind the need worldwide to curb corporate misgovernance and white collar crime, the tariff well extend to 6 years. In BARRICK [1985] 81 Cr. App. R. 78 Lane CJ considered this type of case to be medium range. The medium range fell within the figures £10,000 [F$ 30,000] to £ 50,000 [F$ 150,000].That case was decided 20 years ago, and it is likely the medium range today might shift to figures F$25,000 to F$200,000.

8. According to Justice Goundar in Arun v. State [2009] FJHC 231 on 23rd October 2009, “the tariff for fraud offences including obtaining money by false pretence is 18 months to 3 years imprisonment (Ateca v. State [2002] FJHC 175; HAA0071J.2002S (4 October 2002); State v. Chand [2004] FJHC 53; HAA0001J.2004S (27 February 2040); Rukhmani v. State [2008] FJHC 134; HAA056J.08S (4 July 2008)."
   
9. Maraia Patricia, this is your first offence. You plead guilty in the first available instance. Seraseini Kana, you have one previous conviction against your name. Considering the guidelines set out by Goundar J in Arun v. State, I set my starting point of sentencing for 18 months imprisonment for both accused.
   
10. Both of you have pleaded guilty on the first available instance and to reflect the fact I reduce 06 months each from your sentence.
    

Aggravating Factors
First Accused

11. Even though you have several charges against your name, when considering the facts of the case it is evident that you have been used as an instrument in committing this offence by the second accused. However, the fact that your knowledge of the illegality of your actions cannot be ruled out in this situation. Considering that as an aggravating fact I add another 03 months to your sentence.
    

Second Accused

12. You are the master mind behind this crime and the person who gained from committing this crime. You have very shrewdly used a help of one of the person to steal the money which does not belongs to you. Considering these facts as aggravating facts I add another 06 months to your sentence.
    

Mitigating Factors

First Accused

13. You are a first offender, so you are entitled to a discount for your previous good behaviour. You are married and currently in advance state of pregnancy. You have committed this crime to help the second accused as you were living with her. To reflect these mitigating facts I reduce 08 months from your sentence.
    

Second Accused

14. You are 39 years old and married with 05 children. You have tried to reconcile with the complainant who is the wife of your late brother. To reflect those facts I reduce 06 months from your sentence.
    
15. Even though this Court has extended sometime for restitution, none of you have made any attempt to pay back the money you have received by your dishonest actions.
16. Maria Patricia, your sentence now stands for 07 months imprisonment. Seraseini Kana, your sentence now stands for 12 months imprisonment.
    
17. I am mindful to the fact that the sentences below two years could be suspended.
    
18. Maria Patricia, even though you have not shown any genuine remorse by restitution, considering the advance stage of your pregnancy and your previous good character, I suspend the 07 months term to 02 years. If you commit any offence during the operational period of this suspended sentence, you may have to serve 07 months imprisonment term.
    
19. Seraseini Kana, your involvement in commission of this crime and your lack of genuine remorse prevented me from suspending your sentence. Therefore, I order that you serve 12 months imprisonment term starting from today.
    
20. 28 days to appeal.
    

On this Wednesday the 04th day of August 2010-07-23

Kaweendra Nanayakkara
Resident Magistrate