Nemani v State [1997] FJHC 152; Haa0047j.97b (14 October 1997)

Fiji Islands - Nemani v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Labasa

Appellate Jurisdiction

CRIMINAL APPEAL NO. 0047 OF 1997

Between:

JOSEFA NEMANI
Appellant

and:

THE STATE
Respondent

Appellant in Person
Ms. L. Laveti for the Respondent

JUDGMENT

On the 24th of April 1997 the appellant was convicted by the Taveuni Magistrate Court on two (2) counts of Fraudulent Conversion. The offences are alleged to have been committed: "... between the 22nd of May, 1995 and the 30th day of June, 1995" and related to "cash which had been received by him for and on account of Bucalevu Secondary School".

The certified Magistrate Court record reveals that the appellant pleaded "guilty" to both Counts and admitted the following material facts:

"FACT Accused employed as a treasurer at Bucalevu Secondary School. There were numerous fund raising. One was selling school neckties each costing $20.00. Accused was the person issuing receipts. On 3.7.95 accused did not turn up to work. Principal felt suspicious. He checked receipt book and found $164.02 missing (the subject matter of Count 2). On further checking an auditor was sent from Suva which revealed that a further $1,000 was missing (the subject matter of Count 1). Matter reported to the Police. Accused was interviewed and charged. On 14.11.96 (sic) he paid $164.02 to the school."

In the above summary of facts it is nowhere disclosed as to when? the audit of the school records were carried out, or when? the matter was first reported to the police; nor has any explanation been given as to why? offences that were committed and presumably uncovered as long ago as July 1995, were not charged until April 1997; and further in respect of Count 2, why? a charge was ever laid and what's more 18 months after the money had been fully repaid by the accused.

Admittedly these questions do not affect in any way the convictions entered against the appellant but, as will be demonstrated later, they are relevant to a consideration of the sentences imposed and which are the subject-matter of the present appeal.

If I may say so however, having regard to the 'staleness' of the charges and the fact that the converted amount in Count 2 was fully repaid in November 1995 (NOT 1996 as noted in the FACT), which is some five (5) months after its detection and eighteen (18) months before the charge was laid, one might have expected in the first place, the police to have exercised a greater discretion in the laying of the charge; and secondly, on the trial magistrate's part a greater leniency towards the appellant, indeed, I would venture to suggest that a discharge on Count 2 would not have been wholly inappropriate.

Be that as it may, the learned trial magistrate on convicting the appellant adjourned sentencing for two (2) months and released the appellant on bail. This rather 'unusual' procedure was adopted, in the words of the learned trial magistrate, "... in order to give the accused time to make restitution." No Social Welfare Officer's report was sought in the interim as it should have been, nor does the accused's ability to repay the money appear to have crossed his worship's mind.

It need hardly be mentioned that such a course would have left the appellant with the mistaken, although not unreasonable, impression that he would not ultimately be sent to prison.

Furthermore in so-doing, the trial magistrate was either of the view that the case could be adequately dealt with by a non-custodial measure or alternatively, that an immediate custodial sentence was not appropriate, or that the nature of the appropriate sentence would, to a large extent, depend on the amount of restitution made by the accused. On all accounts he erred as his subsequent sentences and sentencing remarks revealed.

On the 23rd of June 1997 when the appellant appeared for 'sentencing' the trial magistrate alluded to the absence of any attempt on the accused's part to make restitution and said:

"In those circumstances this Court has hardly any option but to impose a custodial sentence.

I take into consideration his plea of guilty and the fact that he is a first offender. I am also mindful of the fact that he stands to lose his employment and the hardship it is likely to cause to some members of his family. His plea of guilty and clean record are strong mitigating factors. However, for this offence the Legislature has provided a maximum of 7 years imprisonment.

In the instant case after giving anxious consideration to all matters and having considered the mitigating factors I sentence the accused to 9 months imprisonment on Count 1. On Count 2 he is sentenced to 2 months imprisonment to be served concurrently with the sentence in Count 1."

In this latter regard it is noteworthy that one of the "matters" raised by the appellant in mitigation was that:

"(He) would have paid it (the stolen money) back if (he) had not been assaulted by the principal. (He) reported the assault to Ministry of Education. Had it not been for this report the matter would not have been reported to Police."

This was repeated by the appellant at the hearing of his appeal but could not be verified by State Counsel in the time available.

Nevertheless the learned author of Thomas on Principles of Sentencing in recognising that 'staleness' may be a mitigating factor says at p.198:

"Other considerations which have moved the Court on occasion are the fact that the offence is 'stale' in that ... there has been a long delay between the detection of the offence and the institution of proceedings, with the result that the appellant has had (the matter) hanging over him for a long period."

A fortiori where as in this case, there is a clear, undisputed suggestion that the making of the complaint years later, was motivated by malice or is a retaliatory measure quite unconnected with the commission of the offences or their seriousness.

Furthermore Thomas (ibid at p.198/199) says:

"... the Court has reduced sentences which it considered appropriate on the ground that a mistake (was) made by the trial judge in pronouncing sentence left the appellant with a sense of grievance."

In this latter regard the appellant at the appeal drew this Court's attention to a letter in the Court record, dated the 17 June 1997 in which the author, a highly respected member of the legal fraternity had on behalf of the appellant, sought from the trial magistrate "... a further two months to repay the sum of $1,000.00" and had personally undertaken to: "... help (the appellant) pay the amount."

In the face of the letter, which was received by the trial magistrate on the sentencing date, the appellant complained that the trial magistrate erred in saying:

"he (the appellant) has made no attempt to make restitution." Quite plainly the appellant despite his impecuniosity, had in the two months given him, made 'an attempt' and obtained the letter.

The appellant has served almost four (4) months in prison (his first time) and is due to be released in December 1997. Having seen and heard him in Court, I am convinced that he has learnt a salutary lesson from his 'short, sharp, shock' and that he will, in future, resist the temptations that led him into committing these offences in the first place.

Having regard to the above two (2) 'factors', which were either overlooked or ignored, and without in any way criticising the trial magistrate's sentence, I am able to show the appellant some further leniency.

The appeal is accordingly allowed and the sentences reduced so as to allow the appellant's immediate release.

D.V. Fatiaki
JUDGE

At Labasa,
14th October, 1997.

Haa0047j.97b