Singh v The State [2002] FJHC 118; HAA0035J.2002S (23 May 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0035 OF 2002

Between:

RONALD VIKASH SINGH
Appellant

And:

THE STATE
Respondent

Hearing: 17th May 2002
Judgment: 23rd May 2002

Counsel: Mr J. Nair for Appellant
Mr B. Solanki for Respondent

JUDGMENT

The Appellant originally appealed against conviction and sentence in respect of a sentence of three years imprisonment imposed in respect of the following charge:

Statement of Offence

LARCENY: Contrary to Sections 259(1) and 262(1) of the Penal Code, Act 17.

Particulars of Offence

RONALD VIKASH SINGH s/o UDAY SINGH, between the 4^th and 5^th day of May, 2001 at Navua in the Central Division stole cash $5,000.00 (Fijian), $730.00 (American), $250.00 (Australian) and $20.00 (Canadian), the property of MOTI LAL s/o BABU DASS.

However at the hearing of this appeal, counsel for the Appellant proceeded with appeal against sentence only.

The facts of the case, as outlined by the prosecution on 13^th March 2002 were that the Appellant was a part-time employee of the complainant, who ran a shop in Navua. The Appellant attended courses at Vasist College, a vocational institution. Between the 4^th and 5^th of May 2001, the complainant received cash in the denominations and currency specified in the charge, and kept them in a cupboard in the shop. He found the money missing on the 5^th of May, and asked the Appellant about it. The Appellant admitted the offence and returned $950.00 to the complainant. He told the police that he had spent the rest of the money on mobile phones, and clothes.

These facts were admitted by the Appellant. He was a first offender. In mitigation, he said that he was an orphan and that he lived with one of his teachers. He expressed remorse.

He was sentenced to three years imprisonment, the learned Magistrate taking into account his deprived background, his guilty plea and his previous good character. He said that he considered a custodial sentence to be appropriate because only $2000.00 had been accounted for, and because the Appellant had not told the police what he had done with the rest of the money.

The Appellant appeals against that sentence saying that he should have received a non-custodial sentence because he was a first offender and that the sentence was harsh and excessive.

The State concedes that the three year term was excessive, given the tariff in larceny cases, but submitted that a short custodial sentence is warranted because of the value of the money stolen, and the Appellant=s position of trust when he stole the money.

It is not clear from the record, what sentence was used as the starting point. The maximum sentence provided by statute is five years imprisonment. It is agreed by both counsel that the tariff, on a first conviction under sections 259 and 262 of the Penal Code, is two months to nine months imprisonment. They referred me to Paula Bale -v- The State Crim. App. No. 27 of 1998, Pauliasi Nadali -v- The State Crim. App. No. 29 of 1998, Iowane Wainiqolo -v- The State Crim. App. Nos. 44, 45 of 1998 and Shyam Dhiren Mani -v- State Crim. App. No. 21 of 1997. In Shyam Dhiren Mani (supra), a sentence of nine months imprisonment for theft of two bullocks was set aside by Pathik J, and substituted with a nine month term suspended for one year on the ground of strong mitigating circumstances including restitution of the bullocks.

Accepting the tariff to be between two months and nine months imprisonment, the starting point for an offence of stealing $6000 by a person who was trusted by the owner of the money, should have been nine months imprisonment. A further three months should have been added to reflect the failure of the Appellant to fully compensate the complainant for his loss, and a reduction of six months given for the guilty plea and the previous good character. A period of six months imprisonment would have been appropriate.

Turning next to the question of suspension, it is true that first offenders are normally given non-custodial sentences. However there are cases where the seriousness of the offence outweighs the need to keep young first offenders out of prison. This case is one such offence. The abuse of trust, and the failure of the Appellant to assist the police to trace the whereabouts of about $3000, are circumstances which justify a custodial sentence albeit a short one. As such I do not consider it appropriate to suspend the sentence.

This appeal is therefore successful to the extent that the three year term is quashed and substituted with a term of six months imprisonment.

Nazhat Shameem
JUDGE

At Suva
23^rd May 2002