Heatley v The State [1995] FJHC 5; Haa0003d.1995s (20 February 1995)

Fiji Islands - Heatley v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL HAA0003 OF 1995 Between:

SHAYMOND HEATLEY

Appellant

And

THE STATE

Respondent

Counsel: Mr. D. Shaor Appellant

Mr. D. Tuiqereqere for Respondent

Hearing: 17th February 1995

Decision: 20th February 1995

ORAERVED DECISION OF PAIN J.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The Appellant appeals against a two year prison sentence imposed in the Magist Court on a charge of larcelarceny by a servant.

Between the 22nd February 1994 and 27th April 1994 the Appellant stole $22,500 from hployer, the National Bank oank of Fiji. He did this by activating an account in the name of his uncle, which had a balance of $5 but had not been used since 17th December 1990. The Appellant's uncle could not be located by the Police and it is believed that he may have departed overseas. The Appellant created and entered into the banking system a fictitious overdraft facility for this account. Over a period of two months the Appellant drew against that overdraft facility by making 9 separate transfers totalling $22,500 from that account to the accounts of two accomplices. These accomplices must then have withdrawn cash from their accounts for the benefit of the Appellant. The Appellant says that these accomplices retained some of the money. The result was that the bank was defrauded of $22,500. The accused used his position to mastermind and implement the fraud and received the major portion of the stolen funds.

Such dishonest offending by a person in a position of trust can be expected to attract an immediate prison sentence. The case of BARRICK 7 CR. APP. R (S) 142 gives a useful explanation of the sentencing principles to be applied in these cases. In setting out detailed guidelines, the Lord Chief Justice said at page 145:

The type of case with which we are concerned is wherewhere a person in a position of trust, for example, an accountant, solicitor, bank employee or postman, has used that privileged and trusted position to defraud his partners or clients or employers or the general public of sizeable sums of money. He will usually, as in this case, be a person of hitherto impeccable character. It is practically certain, again as in this case, that he will never offend again and, in the nature of things, he will never again in his life be able to secure similar employment with all that that means in the shape of disgrace for himself and hardship for himself and also his family."

and further at page 146 :

"In generalrm of immediate imprisonment is inevitable, save in very exry exceptional circumstances or where the amount of money obtained is small. Despite the great punishment that offenders of this sort bring upon themselves, the Court should nevertheless pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence. The sum involved is obviously not the only factor to be considered, but it may in many cases provide a useful guide."

This general approach has been adopted in FIn VISHWAJIT PRASAD v THE STATE (CR.APP.23 OF 1993) the Court of Appeal was considering the sentence of an appellant who had pleaded guilty to fraud charges involving a total of $78,000. The Court said:

Applying these principles to thsent case it is clear that an immediate sentence of imprisonment is entirely appropriate fote for a serious fraud of this nature and magnitude. There are no exceptional circumstances that would justify the imposition of a non-custodial sentence. The matters submitted in mitigation by counsel for the appellant, both in this Court and the Magistrates Court, can only be taken into account in determining the appropriate length of sentence. An immediate prison sentence is correct in principle for this offending.

The tf imprisonment will vary from case to case depending on the particular circumstances. This This will be influenced by such matters as the sum involved, the extent of the breach of trust, the nature of the fraud, the period over which the fraud was perpetrated, the effect of the fraud, the circumstances of the offender and any special mitigating factors, including a plea of guilty.

In ajit Prasad v The State (supra) the Court of Appeal was dealing with an appellant who hwho had defrauded his employer of $78,000. The sum of $38,000 had been repaid leaving a balance outstanding of $40,000. He had pleaded guilty in the High Court and been sentenced to 4 years imprisonment. The Court of Appeal said:

"As no two case exactly alike in every resy respect and as each case should be decided on its own particular facts and circumstances what we need to seek is a consistency of approach rather than uniformity of sentence. On the material before us it would appear that a 4-year sentence is normally reserved for the worst type of obtaining monies by deception cases. Although we have noted the aggravating features of the case before us we have also taken into account the mitigating factors and are of the view that this case does not fail in the 'worst case'. Consequently, we have come to the conclusion that a sentence of 4 years imprisonment was on the excessive side. A sentence of 2½ years imprisonment would have been the more appropriate punishment."

Counsel for the Resnt in his case referred me to the decision of this court in EMOSI BANUVE v STATE (CR. APR. APP.59 OF 1989). In that case a sentence of 3 years imprisonment imposed in the Magistrates Court on a plea of guilty for larceny of $4,839 as a servant was reduced to 18 months.

Other decisions of the Court of Appeal are illustrative of the range of penalties imposed for fraudulent offending.

In ANIL KUMAR v R (CR.APP. 69 OF 1985) the Appellant was treasurer of a village cooperative. He pleaded guilty to charges involving the fraudulent taking of $l4,000 from the Cooperative. Only $550 was recovered. An appeal against a sentence of 5 years imprisonment was dismissed. In that case however financial loss had been caused to other villagers and the offender had previous convictions for dishonesty.

In MARA KAPAIWAI v R (CR.APP. 22 OF 1985) the Appellant was charged with fraudulently converting in excess of $300 from his employer. He was convicted after trial of converting only $26.l0. A sentence of 18 months imprisonment was reduced to 9 months in view of the small amount taken.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In HARBANS SINGH v STATE (CR.APP. 3 OF 1991) the offender took partcts that enabled him as thes the accountant and other employees of the Sports Council to obtain $18,868.72. He pleaded guilty to 9 counts of larceny as a servant and 2 counts of falsification of accounts. Long delays in charging the offender and proceeding to a hearing and some other matters were accepted as special mitigating circumstances. Nevertheless the Court of Appeal dismissed the appeal against the sentence of 15 months imprisonment which it described as "very lenient".

These cases show tb>on a plea of guilty of obtaining money by fraud a sentence of 4 years iars imprisonment is likely for the most serious type of case (See dicta in Vishwajit Prasad v The State App. 23 of 1993). However aggravating circumstances may warrant a greater sentence (ANVIL KUMAR v R APP.69 OF 1985). If the amount involved is small a short period of imprisonment is appropriate (See MARA KAPAIWAI v R APP.22 OF 1985 - Albeit on a plea of guilty). Otherwise sentences imposed in these reported cases have ranged from 15 months to 2½ years imprisonment.

The offence committed by this appellant was not the worst type of caevertheless it amounts to s to serious fraud offending. The Appellant used his position of trust to defraud the bank of $22,500. That is a substantial sum in the financial environment of this community. He implemented a devious scheme of deception and obtained money by separate fraudulent acts over a period of two months. The money was taken for selfish personal benefit as shown by the fact that he purchased an expensive stereo system with the stolen funds. He also involved others who are said to have benefited from the fraud. There is some dispute as to how much of the loss remains outstanding. The Police say that recovery amounts to $6,925 but the Appellant puts it at a higher figure. In any event a substantial sum still remains outstanding.

It is submitted on b of the appellant that he pleaded guilty, was cooperative with the police, assisted the bane bank to improve its systems, a considerable sum has been recovered, he has no previous convictions for dishonesty, he lost his employment, he has obtained another job, he is aged 23 years, he is recently married and he is making a genuine attempt to reform. Most of these factors are not unusual in these cases. Nevertheless they must be taken into consideration in determining the length of sentence. Similar factors have been considered in the other cases that I have referred to and the Resident Magistrate said in this case that he had "taken into account what counsel for the defence has ably put before me". Giving due allowance for all matters raised in mitigation a significant term of imprisonment remains entirely appropriate for this serious offending.

A term of two years ionment is clearly within the appropriate range of sentence. Having regard to the amount invt involved, money recovered and circumstances of the offender it may be a relatively stern penalty close to the top of the acceptable range. However, it is not a question of whether this Court may have imposed a slightly different term. Nor is it proper for this Court to fine tune or tinker with a sentence that is withn an acceptable range for the offence. I cannot say that the term of two years imposed by the Resident Magistrate in this case is manifestly excessive for the offence committed.

In view of this determination it is not necessary for me nsider in any further detail the particular reasons given bven by the Resident Magistrate. The sentence he imposed is within the appropriate limits for the offence.

The appeal is dismissed.

ass=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> JUSTICE D.B. PAIN

Haa0003d.95s