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State v Naidu [2010] FJMC 70; Criminal Case 516 of 2009 (16 July 2010)

IN THE MAGISTARTE'S COURT AT LAUTOKA

Criminal Case No 516/09

BETWEEN

THE STATE

AND

RONLAD VIKASH NAIDU

SENTENCE

1. You Ronald Vikash Naidu are to be sentenced upon pleading guilty to fourteen counts of larceny by servant contrary to Section 274(a) of the Penal Code.
   
2. The maximum sentence for this offence is fourteen years. The tariff for these offences is from 18 months to three years.
   
3. In this case I pick my starting point as 18 months for each offence.
   
4. It was revealed that when you were employed by the Carpenters Mobil Service Station as a bowser attendant you stole $ 2256 by raising false invoices in 16 instances from 5th March 2009 to 24th March 2009.
   
5. The facts revealed that the FEA was in contract with the Carpenters Mobil Service Station for refuelling their fleets using fuel cards. The FEA has become suspicious when one of their fleet reg no DV 059 continued to refuel after it was parked at Carpenters yard. You have raised false invoices on FEA's account and have stolen this money during the month of March. First you have misled the investigations by saying another person was also involved in this theft. Yet it has been revealed by the investigations that no other person was involved.
   
6. You admitted the offence in the caution interview and have said that you spent the money on drinks and cigarettes. However you have paid $ 1300 to the complainant company after you were produced to Court.
   
7. In breach of trust cases the Courts have always been very firm in sentencing. Offences of this nature have always denounced by Courts as well as by the society. Breach of trust kept on employees has been dealt with by Courts in a very serious manner as it could have a negative impact on the economy. The quality and degree of trust reposed in the offender including his rank; the period over which the fraud or the thefts have been perpetrated; the use to which the money or property dishonestly taken was put; the effect upon the victim; the impact of the offences on the public and public confidence; the effect on fellow-employees or partners have been considered in sentencing in offences of this nature.
   
8. It appears that you have committed this offence systematically in fourteen instances over a period of one month. It appears to be a premeditated and a well planed crime. Not only you have breached the trust of your employer but you have misused the invoices of the FEA. You have tried to mislead the investigations, although you admitted the commission of the offence. Therefore it does not appear that you have assisted the investigations. You have stolen a substantial amount of money within this period. You have not fully restituted the money stolen.
   
9. After pleading guilty you have asked for one month to pay the money in full. But it has been held that it is improper to defer the sentence to allow restitution. Yet it is noted, that today you informed the court that you did not pay the money.
   
10. For the aggravating factors I enhance the sentence by 6 months for each count.
    
11. In mitigation you said that you are married and the sole breadwinner of the family. You said you work as a bowser attendant for BP. Further you asked for one month to pay off the money.
    
12. Apart from your personal circumstances you did not say any compelling circumstances for mitigation. You are a first offender and you have tendered an early guilty plea. You are in your young age and the court has a duty to give you an opportunity to correct yourself too.
    
13. Thus for the mitigatory circumstances I reduce the sentences for each count by 12 months.
    
14. You have paid part of the money you have stolen. Although the court has given you time, the court cannot defer the sentence to allow you full restitution. It should be noted that suspension of sentence is only considered where an early restitution is made as true expression of remorse and not just as an attempt to buy one's way out of prison.( State V Cakau HAA 125 of 2004S)
    
15. I do not believe that in breach of trust cases a mere suspended sentence would send a positive message to the society regarding the gravity of the offence. The court has to consider the effect of the offences committed and the effect of the sentences imposed on the society. If appropriate sentences are not imposed in breach of trust cases it could erode the confidence of the society, and especially of the employers, in the criminal justice system. Also the sentence imposed in case of this nature should be strong enough to deter others who are minded to indulge in this kind of offences.
    
16. Section 4 of the Sentencing and Penalty Decree sets out the purposes of sentencing an accused persons as follows;
    
    1. To punish offenders to an extent and in manner which is just in all the circumstances
       
    2. To protect the community from offenders
       
    100. To deter offenders or other persons from committing offences of the same or similar nature
         
    4. To establish conditions so that rehabilitation of offenders may be promoted or facilitated
       
    5. To signify that the court and the community denounce the commission of such offences
       
17. Although you are a first offender and you have made part restitution I do not believe the circumstances of this case warrant this court to impose a fully non custodial sentence on you.
    
18. Section 15(1)(d) and section 26(1) of the sentencing and Penalties Decree sets out provisions for the court to impose partly suspended sentences if the court is satisfied it is appropriate, depending on the circumstances. I believe considering the facts of this case including your young age, first offender and part restitution, it is appropriate to impose a partly suspended sentence in this case.
    
19. Accordingly I impose the sentence for count No 1 to count No 14 in the following manner;
    
    1. I impose 12 months imprisonment for each count.
       
    2. I order you to serve two months imprisonment out of the 12 months imprisonment for each count
       
    3. Two months imprisonment for each count should run concurrently. Altogether you should serve 2 months imprisonment.
       
    4. I suspend the balance 10 months imprisonment of the sentences of each count for two years.
       
    5. If the suspended sentences are activated all the sentences should run concurrently.
       

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka.
16.07.2010