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State v Rasheed [2016] FJMC 88; Criminal Case 1937.2015 (23 May 2016)

IN THE MAGISTRATE’S COURT of Fiji

AT SUVA

Criminal Case No. 1937/15

STATE

-v-

MOHAMMED RASHEED

SENTENCE

INTRODUCTION AND CHARGE

The following charge was read out to you and understanding the contents you pleaded guilty to the same on your own free will. Accordingly you are convicted to the following charge.

CAUSING A LOSS: Contrary to Section 324(1) of the Crimes Decree No. 44 of 2009

Particulars of Offence

MOHAMMED RASHEED on the 21st day of October 2015 at Samabula in the Central Division fail to obtain the refundable item namely Azumi Shock Absorber valued at $147.00 with the intention of dishonestly causing a loss of Color Market.

STATEMENT OF FACTS

It was revealed in the statement of facts that On the 21st of October 2015 at about 11.30am at Color Market, SamabulaRenita Prakash cashier( complainant) at Color Market was at the office when you salesman at Color Market brought her a refund docket amounting to $147.00 for 3 x Azumi Shock Absorber without theAzumi Shock Absorber and the said cashier gave the $147.00 – cash. You did not obtained the Azumi Shock Absorber but gave the $147.00 to the customers.

The complainant informed her boss Harun Rashid Hussein about the transaction conducted by the you and alsomade a complainant to the police. On your arrest in your caution interview you have admitted that you colluded with the customer to obtain $147.00 to share.

MAXIMUM SENTENCE

Imprisonment for 5 years

THE TARIFF

It was observed by Justice Kumararatnam in State v Devol [2012] FJHC 1466; HAC 298.2011 (6 December 2012)

“The State also states that the tariff for this offence is quite limited as it is a new offence under the Crime Decree; however, there were offences under the Penal Code that are similar and could be considered as a matter of guidelines.

In State v Jimi [2011] FJHC 327; HAC 019 of 2011 (12th May 2011) Justice Goundar sentenced the Accused to 9 months imprisonment suspended for 2 years. The High Court in this case, stated that for fraud related offences, the tariff is 18 months to 3 years imprisonment.

In Raymond Roberts HAA0053 of 2003S Madam Shameem J noted as in fraud cases:

"The principles that emerge from these cases that custodial sentence are inevitable where the accused pleads not guilty and makes no attempts 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. However where the accused is a first offender, pleads guilty and has made full reparation in advance of the sentencing hearing(thus showing genuine remorse ratherthan a calculated attempt to escape a custodial sentence)a suspended sentence may not be wrong in principle. Much depends on the personal circumstances of the offender, and the attitude of the victim."

AGGRAVATING FACTORS

You have caused a loss to the complainant party in collusion with a customer while you were a servant of the complainant.

MITIGATING FACTORS

1. Early guilty plea
2. No previous convictions
3. young male aged 29 years
4. Currently separated from his wife and his 2 children.
5. You have refunded a sum of $147.00 to the customer but failed to obtain the refundable item. However you have attempted to pay the loss to the complainant party who has refused to accept. Youalso have said in admitting the offence that it’s a mistake and this was an oversight on your part. You have submitted that you deeply regret the omission on your partand now left your job at Colormarket.

THE CONCLUSION

I pick 24 months as the starting point and for the aggravating factors mentioned above I increase the same by 3 months to reach 27 months. It should be noted that Penal provisions generally enhance the sentence when a fraud is committed against the employer.

I now consider the mitigating factors.

The court must give regard to your plea of guilt and the stage at which you tendered your plea in terms of Sec. 4(2) (f) of the Sentencing and Penalties Decree 2009. Since you have pleaded guilty at the first available opportunity, your sentence should be reduced by a third: [Vide VeretarikiVetaukula v The State , High Court Crim App Case No: HAA057/07 which followed Hem Dutt v The State , FCA Crim App Case No: AAU 0066 of 2005.].

Since you have been reported to be a first offenderI now draw my attention to the decision in SHIU PRASAD and others v STATE[1994] 40 FLR 151. In this case His Lordship Kepa JSaid that the trial Magistrate had not taken into account the fact that the appellants were first offenders. His Lordship citedThe State v. SereviSereki and KameliUlunikoro, Revision No. 7/90 No. 7/90 where both SereviSereki and KameliUlunikoro were sentenced to one year imprisonment for Shopbreaking and Larceny and Tuivaga C.J., in ordering their immediate release from prison said:

"Young first offenders should not be sent to prison, unless there are compelling reasons to do so."

Ialso reiterate the following wordings in the judgement in Raymond Roberts HAA0053 of 2003 (supra)where Her Ladyship Shameem J noted that as in fraud cases:

“However where the accused is a first offender, pleads guilty and has made full reparation in advance of the sentencing hearing(thus showing genuine remorse rather than a calculated attempt to escape a custodial sentence)a suspended sentence may not be wrong in principle.”

The fact that you being first offender regret and you have attempted to pay the loss to the complainant supports a suspend sentence andtherefore I suspend your sentence for 2 years.

If you commit any offence punishable by prison sentence during the next 2years you can be charged under section 28 of the Sentencing and Penalties Decree.

In addition I impose a fine of $ 100 default of which you will be imprisoned for 10 days.

SUMMARY OF THE SENTENCE

1. 18 months imprisonment is suspended for 2 years
2. a fine of $ 100 in default 10 days imprisonment
   

28 days to appeal

PRIYANTHA LIYANAGE

RESIDENT MAGISTRATE, SUVA

On 23^rd day of May 2016