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State v Sinha [2013] FJMC 322; CF1600.12 (25 July 2013)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. 1600 of 2012

THE STATE

–V-

LAWRENCE JITENDRA KUMAR SINHA

For the State: CPL Dickson
For the Accused: Mr. Nandan

SENTENCE

1. LAWRENCE JITENDRA KUMAR SINHA, you were charged with 16 counts of THEFT Contrary to section 291 (1) of the Crimes Decree Number 44 of 2009; 16 counts of DISHONESTLY CAUSING A LOSS Contrary to section 324of the Crimes Decree Number 44 of 2009and the particulars of offence are as follows;
   

Count 1

"On the 12th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $61.35 cash the property of Newman Limited."

Count 2

"On the 12th day of October, 2012 at Suva, in the Central Division, obtained $61.35 with the intention of dishonestly causing a loss of $61.35 cash to Newman Limited."

Count 3

"On the 15th day of October, 2012 at Suva, in the Central Division, obtained $1,095.00 with the intention of dishonestly causing a loss of $1,095.10 cash of Newman Limited."

Count 4

"On the 15th day of October, 2012 at Suva, in the Central Division, obtained $1,095.00 with the intention of dishonestly causing a loss of $1,095.10 cash of Newman Limited."

Count 5

"On the 19th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $1,353.60 cash the property of Newman Limited."

Count 6

"On the 19th day of October, 2012 at Suva, in the Central Division, obtained $1,353.60 with the intention of dishonestly causing a loss of $1,353.60 cash of Newman Limited."

Count 7

"On the 14th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $2,225.84 cash the property of Newman Limited."

Count 8

"On the 14th day of September, 2012 at Suva, in the Central Division, obtained $2,225.84 with the intention of dishonestly causing a loss of $2,225.840 cash of Newman Limited."

Count 9

"On the 13th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $610.99 cash the property of Newman Limited."

Count 10

"On the 13th day of October, 2012 at Suva, in the Central Division, obtained $610.99 with the intention of dishonestly causing a loss of $610.99 cash of Newman Limited."

Count 11

"On the 19th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $432.41 cash the property of Newman Limited."

Count 12

"On the 19th day of October, 2012 at Suva, in the Central Division, obtained $432.41 with the intention of dishonestly causing a loss of $432.41 cash of Newman Limited."

Count 13

"On the 20th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $375.14 cash the property of Newman Limited."

Count 14

"On the 20th day of October, 2012 at Suva, in the Central Division, obtained $375.14 with the intention of dishonestly causing a loss of $375.14 cash of Newman Limited."

Count 15

"On the 05th day of September, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $877.60 cash the property of Newman Limited."

Count 16

"On the 05th day of September, 2012 at Suva, in the Central Division, obtained $877.60 with the intention of dishonestly causing a loss of $877.60 cash of Newman Limited."

Count 17

"On the 10th day of September, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $263.26 cash the property of Newman Limited."

Count 18

"On the 10th day of September, 2012 at Suva, in the Central Division, obtained $263.26 with the intention of dishonestly causing a loss of $263.26 cash of Newman Limited."

Count 19

"On the 13th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $1,099.64 cash the property of Newman Limited."

Count 20

"On the 13th day of October, 2012 at Suva, in the Central Division, obtained $1,099.64 with the intention of dishonestly causing a loss of $1,099.64 cash of Newman Limited."

Count 21

"On the 15th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $23.51 cash the property of Newman Limited."

Count 22

"On the 15th day of October, 2012 at Suva, in the Central Division, obtained $23.51 with the intention of dishonestly causing a loss of $23.51 cash of Newman Limited."

Count 23

"On the 16th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $5.58 cash the property of Newman Limited."

Count 24

"On the 16th day of October, 2012 at Suva, in the Central Division, obtained $5.58 with the intention of dishonestly causing a loss of $5.58 cash of Newman Limited."

Count 25

"On the 17th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $441.63 cash the property of Newman Limited."

Count 26

"On the 17th day of October, 2012 at Suva, in the Central Division, obtained $441.63 with the intention of dishonestly causing a loss of $441.63 cash of Newman Limited."

Count 27

"On the 19th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $122.95 cash the property of Newman Limited."

Count 28

"On the 19th day of October, 2012 at Suva, in the Central Division, obtained $122.95 with the intention of dishonestly causing a loss of $122.95 cash of Newman Limited."

Count 29

"On the 11th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $730.26 cash the property of Newman Limited."

Count 30

"On the 11th day of October, 2012 at Suva, in the Central Division, obtained $730.26 with the intention of dishonestly causing a loss of $730.26 cash of Newman Limited."

Count 31

"On the 11th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $2.79 cash the property of Newman Limited."

Count 32

"On the 11th day of October, 2012 at Suva, in the Central Division, obtained $2.79 with the intention of dishonestly causing a loss of $2.79 cash of Newman Limited."

2. You were convicted of the charge on your own plea of guilty.
   
3. The summary of the facts of the case that was submitted by the prosecution and admitted by you are as follows;
   

On 24/10/2012, at about 1415hrs at Central Police Station, RITESHWAR PRASAD Credit Controller, of Lakena Nausori and SAGARA WICKREMASINGHE Finance Manager, of Lot 25 Bakshi Street, Samabula, both of Newman Limited, reported that one of their staff namely LAWRENCE SINHA [Accused] misappropriated funds of about $9,696.49.

On 11/10/2012, MITESH KUMAR Accountant of 23 Huon Street, Toorak and [Accused] Sales Representative of above company were supposed to collect cash of $4,550.00 from one of their customers namely Yoyo's Stores for the E-PAY recharge cards which the company supplied. [Accused] gave excuses to Mitesh Kumar that he is busy and they can collect later. On various occasions Mitesh Kumar requested [Accused] to accompany him for the collection as they were only assigned by their company for cash collection but [Accused] gave excuses.

On 18/10/2012 Mitesh Kumar, himself went to Yoyo's Stores and was informed that Lawrence has already collected cash of $4,550.00 on 11/10/2012. Mitesh Kumar then questioned [Accused] whereby he gave cash of $4,550.00 to Mitesh Kumar who then deposited the money in Newman Limited account and informed Riteshwar Prasad and Sagara Wickremasinghe about the incident.

On 23/10/2012 an Audit was requested by the Chief Finance Controller of CJ Patel Group of Companies, which is the parent of Newman Limited and LOIMATEIWAIAuditor of CJ Patel Group of Companies, of Lot 5 Tadevu Place, Muanikoso did the Audit and the total of $9,598.95 was misappropriated by [Accused] from 5/9/2012 to 20/10/2012 from Eight (8) different customers of Newman Limited.

On 6/11/2012 at about 0945hrs at Central Police Station DC 2774 SUBHI RAJ arrested and interviewed under caution Lawrence Jitendra Kumar Sinha [Accused] Sales Representative of Lot 35 Matu Street, Nepani whereby the he admitted the Theft of money and used it for his personal use to the total of $9,598.95.

The [Accused] has 2 stale previous convictions and therefore deemed to be a first offender.

4. Learned Counsel tendered written mitigation submission on your behalf which states inter alia as follows; that you are;
   

35 years of age; married and have 02 children; currently you are a taxi driver, wife also works and earns $600.00,but income not sufficient. Your father has been suffering stroke and his medical expenses is $400.00 per month. You have understood the gravity of the offence; apologized to the complainant. Seek leniency; seek non-custodial Sentence as a custodial Sentence won't serve the purpose as you wanted to pay back.

5. Statutory Indication
   

Theft: Contrary to section 291 (1) of the Crimes Decree Number 44 of 2009
Theft

Section 291 (1) of the Crimes Decree No.44 of 2009 provides;

A person commits a summary offence if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the property.

The offence of theft carries a maximum sentence of 10 years imprisonment.

Tariff

It was held in Tikoitoga v State (2008,FJHC 44, HAM 088 2007) the Tariff for larceny is 18 months to 2 years. Learned Judge Daniel Gounder held in State v Vatunalaba (2010, FJHC 99; HAC 134.2008) that the tariff for theft offences arising from breach of trust range from 18 months to 3 years imprisonment. Suspended sentences are reserved for cases where the offenders have shown remorse or the value of the property is small.

But Justice Shameem said in Saukilagi: "The tariff for simple larceny on first conviction is 2 to 9 months and on second conviction a sentence in excess of 9 months. In cases of larceny of large amounts sentences of 1.5 years and 3 years have been upheld by the High Court (Sevanaia ViaKoroi HAA 31 of 2001). Much depends on the value of the money stolen and the nature of the relationship between the victim and the Defendant – the method of stealing is also relevant."

Dishonestly Causing A Loss: Contrary to section 324of the Crimes Decree Number 44 of 2009

According to Section 324 of the Crimes Decree Number 44 of 2009 provides;

(1) A person commits a summary offence if he or she does anything with the intention of dishonestly causing a loss to another person.

The maximum sentence for Dishonestly Causing a Loss is 5 yemprisonment.