Ram v The State [2004] FJHC 454; HAA0069.2004L (3 September 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0069 OF 2004L

PARKER VIMLESH RAM

v.

THE STATE

Counsel: Mr. I. Khan for the Appellant
Mr. Nand for the State

JUDGMENT

This is an appeal against sentence by the appellant, Parker Vimlesh Ram. The appellant was sentenced to a term of 2 years imprisonment for the following offences:

FIRST COUNT

Statement of Offence

LARCENY OF POSTAL PACKET: Contrary to section 267 of Penal Code, Cap. 17.

Particulars of Offence

PARKER VIMLESH RAM s/o Hari Ram and NITIN NILESH SINGH s/o Deo Dutt Singh, on the 1^st day of May, 2004 at Lautoka, in the Western Division, stole telegraphic money order number 8695 valued $2.00 the property of POST FIJI LIMITED.

SECOND COUNT

Statement of Offence

FORGERY: Contrary to section 335(1) (c) of Penal Code, Cap. 17.

Particulars of Offence

PARKER VIMLESH RAM s/o Hari Ram and NITIN NILESH SINGH s/o Deo Dutt Singh, on the 1^st day of May 2004, at Lautoka in the Western Division, with intend to defraud, forged certain documents namely telegraphic money order number 8695 purporting to have been signed by MELANIA SERELAWA.

THIRD COUNT

Statement of Offence

UTTERING FORGED DOCUMENT: Contrary to section 343(1) of Penal Code, Cap. 17.

Particulars of Offence

PARKER VIMLESH RAM s/o Hari Ram and NITIN NILESH SINGH s/o Deo Dutt Singh, on the 1^st day of May 2004, at Lautoka in the Western Division, with intend to defraud, uttered a certain forged document namely telegraphic money order number 8695, knowing the same to have been forged.

FOURTH COUNT

Statement of Offence

OBTAINING MONEY ON FORGED DOCUMENT: Contrary to section 345(a) of Penal Code, Cap. 17.

Particulars of Offence

PARKER VIMLESH RAM s/o Hari Ram and NITIN NILESH SINGH s/o Deo Dutt Singh, on the 1^st day of May 2004, at Lautoka in the Western Division, with intend to defraud, obtained $43.61 cash by virtue of forged instrument namely, telegraphic money order number 8695, knowing the same to have been forged.

FIFTH COUNT

Statement of Offence

LARCENY OF POSTAL PACKET: Contrary to section 267 of Penal Code, Cap. 17.

Particulars of Offence

PARKER VIMLESH RAM s/o Hari Ram and NITIN NILESH SINGH s/o Deo Dutt Singh, on the 1^st day of May 2004, at Lautoka in the Western Division, stole telegraphic money order number 8508 valued $2.00 the property of POST FIJI LIMITED.

SIXTH COUNT

Statement of Offence

FORGERY: Contrary to section 335(1)(c) of Penal Code, Cap. 17.

Particulars of Offence

PARKER VIMLESH RAM s/o Hari Ram and NITIN NILESH RAM s/o Deo Dutt Singh, on the 1^st day of May 2004, at Lautoka in the Western Division, with intend to defraud, forged certain document namely telegraphic money order number 8508 purporting to have been signed by VANI DIKAU.

SEVENTH COUNT

Statement of Offence

UTTERING FORGED DOCUMENT: Contrary to section 343(1) of Penal Code, Cap. 17.

Particulars of Offence

PARKER VIMLESH RAM s/o Hari Ram and NITIN NILESH SINGH s/o Deo Dutt Singh, on the 1^st day of May 2004, at Lautoka in the Western Division, with intend to defraud, uttered a certain forged document namely telegraphic money order number 8508, knowing the same to have been forged.

EIGHTH COUNT

Statement of Offence

OBTAINING MONEY ON FORGED DOCUMENT: Contrary to section 345(a) of Penal Code, Cap. 17.

Particulars of Offence

PARKER VIMLESH RAM s/o Hari Ram and NITIN NILESH SINGH s/o Deo Dutt Singh, on the 1^st day of May 2004, at Lautoka in the Western Division, with intend to defraud, obtained $20.00 cash by virtue of forged document instrument namely, telegraphic money order number 8508, knowing the same to have been forged.

The appellant pleaded guilty to all 8 counts on the 4^th of June 2004, that being the day when the matter first came before the court.

The facts were that on the 1^st of May 2004 between 7.55am and 8.22am, at Post Fiji Limted, Lautoka, the appellant are being 30 years of age and being a postal clerk in the employ of Post Fiji Limited with Nitin Nilesh Singh s/o Deo Dutt Singh, he being 26 years of age and the postal clerk in the employ of Post Fiji Limited, forged the signatures on telegraphic money orders 8695 and 8508 and stole the cash from Post Fiji Limited.

On the day in question, the appellant was on his day off and Nitin Nilesh Singh was on duty with other staff providing counter services. At about 7.30am, the appellant arrived and met Nitin Nilesh Singh. At about 7.50am, Livia Tubuna, a postal assistant came to work and noticed the appellant sitting at the table at the back of the counter where all unpaid money orders are kept. She felt suspicious about the activities of the two employees and noticed that Nitin Nilesh Singh took out the money order from the unpaid claims and took it to his counter and that after a while, the appellant went to Nitin Nilesh Singh at his counter and forged the signature of both the payees on the money order forms and then Nitin Nilesh Singh paid the money to the appellant and they shared the money.

Money Order No. 8695 was sent from FTA Welfare, Suva to Melania Serelawa on the 27th of June 2003 and the amount was $43.61. Money Order No. 8508 was sent by Oliver Fisha from Suva Prison on the 9th January 2004 to Vani Dikau of Rifle Range, Lautoka and the amount was $20.00.

On being interviewed by the police, the appellant admitted the offence and prior to the matter being dealt with by the Learned Magistrate, the monies had been repaid.

The appellant expressed remorse before the Learned Magistrate through his counsel and informed the court that he is married for 5 years with no children and had been employed by Post Fiji for 5 years and as a result of the offence, is now unemployed. He indicated which was confirmed that he is a first offender.

These facts were confirmed on appeal and in addition, counsel for the appellant indicated that the appellant had lost his job as a result of the commission of these offences and that he had now gained further employment as a trainee joiner earning $70.00 per week. It was submitted that he had suffered a momentary lapse which resulted in something that he will have to live with for the rest of his life.

It was submitted that the Learned Magistrate failed to consider the effect of the conviction upon the appellant together with the loss of his employment.

Counsel refers the court to various authorities, which were relied on in support of the submission that notwithstanding the breach of trust and dishonesty, that it was appropriate for the appellant to be given a conditional discharge without conviction.

State Counsel submitted that whilst it was acknowledged, the punishment imposed by the Learned Magistrate was too severe, it was inappropriate for the appellant to be given a conditional discharge but that a suspended sentence would indeed be an appropriate sentence in the circumstances.

There is of course a need, not only to punish the appellant but also to provide a deterrent to other members of the community, particularly in circumstances such as this where the appellant was employed in a position of trust and other peoples’ monies were stolen by virtue of a breach of that trust.

I am of the opinion that the Learned Magistrate took account of the fact that the appellant was a first offender and also took account of his early plea of guilty and that the monies had been repaid, in imposing a total period of imprisonment of 2 years for all 8 offences. However, in the circumstances, I am of the opinion that it is appropriate that that sentence be suspended and accordingly the order of the Court will be:

1. Appeal allowed.

2. Sentences by the Learned Magistrate quashed.

3. The appellant is sentenced to imprisonment for a period of 2 years and I suspend the operation of the sentence for a period of 2 years from today.
   

JOHN CONNORS

JUDGE

At Lautoka

3 September 2004