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State v Yee [2010] FJMC 184; Criminal Case 1690 of 2009 (13 December 2010)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 1690/09

STATE

V

CHRISTOPHER YEE

For Prosecution : - Ms. Lomani
1st and 2nd Accused : - Mr. Jitoko.

SENTENCE

1. You Mr.MOHAN CHAND, was convicted by this court, for offence of "larceny by servant" which is punishable under Section 274 (a) (1) of the Penal Code Cap 17, entailed a punishment up to fourteen years, for the offence of "Giving false information" which is punishable under section 143 (a) of the Penal Code cap 17, entailed a punishment up to one year, and for the offence of "Conspiracy to commit a felony" which is punishable under section 385 of the Penal Code Act 17,
   
2. The convictions was entered consequent upon your "pleas of guilty' to the above charges on 11th of August 2010. I am satisfied that you fully comprehended the legal effects and that your pleas were voluntary and free from influence.
   
3. Summary of facts, as admitted by you before the court, revealed that the offence of Larceny by Servant was committed during the period between 1st to 31st day of August 2008, and the offence of "Giving false information" was committed on the 22nd day of August 2008 and the offence of "Conspiracy to commit a felony" was committed during the period between 1st to 31st of August 2008, while bring employed as a Sales Representative by the Tappoos Fiji Ltd. You fraudulently stole cash, telecards, and recharge cards to the total value of $ 63,240.77, the property of Tappoos Fiji Ltd.
   
4. Further, the summery of facts revealed, that you joined the Fiji Gas Ltd as a clerical officer in 1998 and after your probation became a credit clerk for the company. You were responsible for contacting and visiting customers regarding their accounts, to perform reconciliation of accounts, date entries and prepare monthly accounts receivable report for the management. It was further revealed that you used two methods to conceal your fraudulent activities. One was by way of journals entries and other was by way of receipt reallocations. Under these methods you embezzled sum of $ 45938.71. You confessed to the CEO of Fiji Gas Mr. Harvey that you had been making fraudulent entries into the accounts and had been systematically defrauding the company by actively soliciting cash payments from the customers and concealing those deals in the accounts on 12th of November 2007.
   
5. The learned counsel for the State suggested in her Sentencing submission the aggravating factors are
   
   1. that the accused was entrusted by the management as a credit clerk and was responsible for general debt collection,
   2. The accused had access to the monies and the company books and was able to achieve the thefts by directly collecting money from Fiji Gas metered customers and then later manipulated the accounts of other debtors in order to adjust the shortfalls collected by the accused for his personal use.
   3. The total sum embezzled was $ 45,938.71,
   4. The offence was committed over a period of 4 years,
   5. No effort to make any restitution by the accused,
      

Moreover, the learned counsel for the state submitted a victim impact statement (VIS) that was sworn by Mr. Freeman Gock the Company secretary of Fiji Gas Ltd. The VIS stated that as a result of this crime, the company had to spend over $ 36,000 for investigations within the company. Further, the company had to audit all the staff and had to deal with complaints and claims by the customers who had paid the accused. The learned counsel for the State drew my attention to several judicial authorities in order to determine the tariff.

6. The Learned counsel who appeared for you made pleas in mitigation on behalf of you. In his submission, emphasized that your confession to the CEO on 12th of November 2007, be considered substantially for your favor. The learned counsel for the accused submitted that without the accused early confession to the CEO, this problem may have never been detected and may have escalated to even greater repercussion. In addition it was stated that the accused's plan for restitution after he found an employment in 1st of July 2009 was ruined by the CID. The learned counsel submitted in his mitigation submission, that you are regular patience at the CWM Hospital with Urethral problem and will undergo an urethroplasty surgery. The learned counsel for the Accused drew my attention to the findings of the Deo v State (2005),FJCA 62, AAU00255,(11 November 2005).
   
7. This is a case involved with medium scale serious dishonesty offence. Gate J held in State v Kumar [2005] FJHC 477; HAC0005T.2005S (7 October 2005) that
   

"In Barrick ( 81 Cp. App. R. 78 Lane CJne CJ considered this type of case to be medium range. The medium range fell within the figures £10,000 [F$30,000] to £50,00150,0That case was decided 20 years ago, and it is liks likely tely the medium range today might shift to the figures F$25,000 to F$200,000. In my view, though serious, this case falls within the medium range of offences"

8. The purposes of sentencing you in pursuant to section 4 (1) of the Sentencing and Penalties Decree to punish offenders to an extent and in a manner which is just in all the circumstance, to protect the community from offenders in this nature, to deter offenders or other persons from committing offences of the same or similar nature, to establish conditions to facilitate or promote the rehabilitation of the offenders and more importantly to signify that the court and the community denounce the commission of such offences.
   
9. I now proceed to consider appropriate sentences on you upon considering the general principle of sentencing under Section 15 (3) of the Sentencing and Penalties Decree and objective of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree.
   
10. Gate J (as then he was) held in State v Kumar (supra) "The tariff for medium scale dishonesty offences is 2-3 years imprisonment. For the worst cases, bearing in mind the need worldwide to curb corporate misgovernance and white collar crime, the tariff could well extend to 6 years".
    
11. The tariff for the serious fraud offences is 18 months to 4 years. ("Savenanca Labavuka v FICAC (2009) FJHC 119, State v Isimeli Drodroveivali (Unreported) Suva High Court Cr. Case No HAC007.2002S,Panniker v State (2000)FJHC 156, Sate v Roberts (2004)FJHC 51,). Pain J in Shanmond Heatley v. The Stae State (03.1995) held teld that
    

"These cases show that on a plea ilty of obta obta monefraud a sentence of 4 years imprisonment is likellikely for the most serious type of case (ase (see dicta in Vishwajit Prasad v. Stat. 23 93). However aggravating circumstances may warranarrant a greater sentence (Anil Kumar v. R v. R). If the amount involved is small a short period of imprisonment is appropriate (see Mara Kapaiwai v. R – albeit on a plea of guilty). Otherwise sentences imposed in these reported cases have ranged from 15 months to 2 ½ years imprisonment."

12. The case of Barrick (1985) 91 Cr.App78) succinctly discussed the determining factors considered as sentencing guidelines for serious breach of trust cases, where it was held that " in determining sentence in breach of trust cases, the court should have regard to the following matters,
    
    1. The quality and degree of trust reposed in the offender including his rank,
    2. The period over which the fraud or the theft have been perpetrated,
    3. The use to which the money or property dishonestly taken was put,
    4. The effect upon the victims,
    5. The impact of the offences on the public and public confidence,
    6. The effect upon fellow employees or partners,
    7. The effect of the offender himself,
    8. His own history,
       
13. Justice Shameem, held in State v Raymond Roberts ( HAA0053 of 2003S),
    

" the principles that emerge from these cases are that a custodial sentence is inevitable where the accused pleaded 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".

14. In view of above judicial precedents and provisions of the Sentencing and Penalties Decree and Crime Decree, careful perusal of the summery of facts, sentencing submission of the prosecution and mitigation submission of the learned counsel for the accused, I now proceed to determine an appropriate starting point for both of you. Ie with above sentencing gung guidelines and principles, I select 24 months imprisonment period as a starting point.
    
15. You commitommitted this offence as a credit clerk working at the Fiji Gad Ltd. You abused your position as a Credit Clerk who was responsible for contacting and visiting customers regarding their accounts, to perform reconciliation of accounts, date entries and prepare monthly accounts receivable report for the management. You breach and betray the trust and confident of your employer, you're fellow colleagues as well as the customers of the Fiji Gas Ltd. You dishonestly attempted to gain from the position you held. Instead of exercising your official duties and responsibilities for the betterment of the company, you choose otherwise to meet your narrow personnel interest.
    
16. The impact of this offence is multi dimensional. Not only the company, you're fellow employees but also the wide range of customers was affected. Your act not only attenuates the integrity of the corporate governance but also the public trust and confident on corporate sector in the country.
    
17. This is not a crime of opportunity. You planned and carried out this disgraceful act of dishonest over a period of four years without remorse. This is a premeditated and well calculated white collar crime with multi dimensional impact to the corporate sector in the country.
    
18. I now draw my attention to address the mitigatory factors in your favors.
    
    1. You are 48 years of age, married with three children and two grandchildren,
    2. You made a confession to the CEO of Fiji Gas Ltd, on 12th of November 2007,
    3. Remorseful and apologetic,
    4. Lost you employment,
    5. You are a regular patience at the CWM Hospital with Urethral Problem,
    6. Your Priest and two neighbors submitted letters for your good character,
    7. Pleaded for mercy, and leniency,
    8. Early guilty plea prior to the hearing,
    9. First Offender,
       
19. In view of aforementioned aggravating factors I increase 20 months, to reach the period of 44 months. In considering your early guilty plea prior to the hearing I reduce 6 month and for other mitigatory factors, I reduce 8 months to reach the period of 30 months. Now your sentence reaches to 30 months imprisonment period. According to section 26 (2) (b) of the Sentencing and Penalties Decree sentence which is above two years could not be suspended by this court.
    
20. Accordingly, I sentence you for 30 month imprisonment period for the offence of "Embezzlement" crontrary to section 274 (a) (ii) of the Penal Code Act 17. Further in pursuant to section 18 (1) of the Sentencing and Penalties Decree you are not eligible for parole within a period of 18 months.
    
21. 28 days to appeal.
    

On this 13th day of December 2010.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.