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State v Ranjana [2012] FJMC 257; Criminal Case 438.2009 (22 August 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 438/09

BETWEEN

THE STATE

AND

DAMAYANTHI RANJANA

SENTENCE

1. You, Damayanti Ranjana are to be sentenced upon pleading guilty to the charge of larceny by servant contrary to Section 274(a)(i) of the Penal Code.
   
2. The maximum punishment for this offence is 14 years imprisonment.
   
3. As per the summary of facts you had been working as a house girl at the Complainant's house. On the 03rd September 2009 when you were alone at the Complainant's house you forced open a cupboard by breaking a padlock and stole $ 5000 overseas currencies and jewelleries worth of $ 5000. Later you went to a foreign money exchange and changed some New Zealand currencies. You gave another $ 1000 New Zealand currency to one Nilesh and another $ 1000 to one Saleshini. Further you have used some money for shopping. When you were arrested only 260 of Fiji dollars were recovered. You have informed the Police that you do not know the whereabouts of the persons that you gave a portion of the stolen money. You admitted the offence under caution.
   
4. You were convicted for the offence of larceny by servant upon admission of the summary of facts.
   
5. You have breached the trust of your employer by committing this offence just three weeks after starting your job as a house girl. You have not only stole properties of high value but you disposed the stolen money to prevent it being recovered. As per your cautioned interview you have given the stolen money to other persons to keep it for your benefit. However it does not appear that you have cooperated with the Police by giving information of those persons to recover the stolen money. Further it appears that you have committed this offence in a meticulously planned manner. You have disposed the stolen money to avoid recovery during investigations. If you had a genuine intention to do reparation you could have easily provided the information during the investigations to recover the stolen money. Instead you have acted in a very evasive manner. Further I have taken into account the high value of the stolen properties. I consider those as aggravating features in this case.
   
6. You are a first offender and pleaded guilty saving the Courts time. However I cannot consider that as a timely plea as you played for time for three years and finally pleaded guilty on the date the case was set for trial.
   
7. In mitigation the Legal Aid Counsel informed Court that you are 30 years of age and a mother of four children. It was informed that you are unemployed and your husband is a carpenter. Further it was informed that your youngest child is mentally challenged and needs constant attention. Yet no medical report was tendered to confirm that. Further the Legal Aid Counsel informed that you are remorseful of your actions and asked for forgiveness on your behalf. Also it was informed that you committed this offence due to financial problems. Further your Counsel referred to some decided authorities to ask for a lenient sentence as you are a first offender.
   
8. It should be noted that having financial difficulties is not an excuse to commit offences. Moreover this incident is not a mere petty theft committed by someone who is starving to buy some food or to attend to a need of a child. You have committed a well planned crime by breaching the trust of your employer and your post conduct shows how shrewd you have been to dispose the stolen properties to evade the investigations. Also it should be noted that remorse is not just a word which is used to plead in mitigation. Remorse has to be shown and expressed in a genuine manner. I do not see that you have been remorseful in any manner whatsoever. Further your Counsel informed Court that you are willing to pay the Complainant in instalments. Firstly it should be noted that the Court cannot order you to pay compensation as you are unemployed. Secondly, you had three years to do some reparation but you have never even tried to do that.
   
9. Justice Gates said in State V. Mahendra Prasad HAC009.02S that;
   

"where there is an earnest and sincere wish to effect reparation to the victim, and where that wish is prompt and an expression of remorse, a suspended sentence is not wrong in principal. 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 an attempt to buy one's way out of prison. ( State V Cakau HAA125 of 2004S)."

10. In this case I pick my starting point as 2 years. For the aggravating factors I enhance the sentence by 6 months. Having regard to the mitigatory circumstances, your plea and your personal circumstances I reduce the sentence by 12 months.
    
11. You are a first offender. However Justice Nawana in in State v. Vilikesa Tilalevu and Savenaca Mataki HAC 081 OF 2010 stated that;
    

"I might add that the imposition of suspended terms on first offenders would infect the society with a situation - which I propose to invent as 'First Offender Syndrome' - where people would tempt to commit serious offences once in life under the firm belief that they would not get imprisonment in custody as they are first offenders. The resultant position is that the society is pervaded with crimes. Court must unreservedly guard itself against such a phenomenon, which is a near certainty if suspended terms are imposed on first offenders as a rule."

12. Further the sentencing and penalties decree sets out the following purposes of sentencing;
    
    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
       
13. I have considered the lengthy submissions filed by the Legal Aid Counsel. Further I have given due regard to the fact that you have four children of tender ages. But I am of the view that the manner you committed this offence and your conduct subsequent to the commission of the offence do not warrant a non custodial sentence to be imposed on you.
    
14. Accordingly I impose 18 months imprisonment on you. You are eligible for parole after 12 months.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

22.08.2012