Vuniwaqa v The State [2005] FJHC 465; HAA0102J.2005S (30 September 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0102 of 2005S

Between:

ISIKELI VUNIWAQA
Appellant

And:

THE STATE
Respondent

Hearing: 16th September 2005
Judgment: 30th September 2005

Counsel: Mr. D. Sharma for Appellant
Ms H. Tabete for State

JUDGMENT

The Appellant was sentenced to 18 months imprisonment on one count of larceny by servant. He appeals against his sentence.

The charge read as follows:

Statement of Offence

LARCENY BY SERVANT: Contrary to Section 274(a)(i) of the Penal Code Act 17.

Particulars of Offence

ISIKELI VUNIWAQA on the 1^st day of September 2003 at Lami in the Central Division, being a servant employed by POST FIJI LIMITED and stole from therein cash $3,768.33 the property of the said POST FIJI LIMITED.

The case was first called on the 7^th of July 2005. He pleaded guilty. The facts were read on the 8^th of July. They were that on the 1^st of September 2003, the Appellant, who was employed by Post (Fiji) in Lami as a Customer Service Assistant, stole $3,768.33 from his employer. Under caution he admitted the offence and restored $2,350.00 in instalments. He was terminated. These facts were admitted. He was a first offender. In mitigation, he said he was 35 years old and married with two children. He is now unemployed. He said he had repaid $2,350 and was willing to repay the balance if he was given time.

The learned Magistrate sentenced him to 18 months imprisonment after taking into account his good character, plea of guilty, part-restitution and the seriousness of the offence.

The Appellant says that this sentence was harsh, excessive and wrong in principle. Counsel for the Appellant said that the learned Magistrate had failed to take into account the delay in the laying of charges, and had failed to give proper weight to restitution. Counsel said that he had repaid the remaining money since his conviction.

State counsel accepted that there had been full restitution, but said that the sentence was nevertheless correct in principle. She referred to the guidelines for sentencing in fraud cases in John Barrick 7 Cr. App. R.(s) 142 and Vishwajeet Prasad v. The State Cr. App. 23 of 1993. In particular in Barrick, the Court (of Criminal Appeal) said:

“The type of cases with which we are concerned is where a person in a position of trust for example an accountant, solicitor, bank employee or postman, has used that privilege 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 good 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 means in the shape of disgrace for himself and also his family ... In general a term of immediate imprisonment is inevitable save in very exceptional circumstances or where the money obtained is small.”

The tariff for offences of fraud is 15 months to 2 ½ years imprisonment with sentences of up to 4 years imprisonment reserved for the most serious and systematic frauds (Pain J in Shane Raymond Heatley Crim. App. HAA0003 of 1995).

Given the relatively low value of the money stolen, the appropriate starting point should have been 15 months imprisonment. The Appellant was entitled to substantial discount for the guilty plea and the expression of remorse in the attempt to restore the money stolen even before he was charged. I would have reduced sentence to 9 months imprisonment. For the breach of the special trust the public has in the postal services, I would have increased the sentence to 12 months imprisonment. I would not be inclined to suspend the sentence. The full restitution was effected after conviction and I give very little weight to it. In the circumstances a sentence of 12 months imprisonment is appropriate. Although the 18 month term is within the range I do not consider that adequate weight was put on the remorse implied in the immediate attempt to effect restitution. Nor did the learned Magistrate identify a starting point consistent with the relatively small sum stolen. Nor is there any information about the nature of the stealing, nor of the length of time over which it took place. Indeed this appears to be a theft on one day alone.

For these reasons this appeal is allowed. The Appellant’s sentence is reduced to 12 months imprisonment. There are no other factors, which I have not taken into account in the scaling process which might justify suspension.

Nazhat Shameem
JUDGE

At Suva
30^th September 2005