Fong v State [2006] FJHC 49; HAA038.2006S (26 May 2006)

IN THE HIGH COURT OF FIJI
AT SUVA

Criminal Appeal Case No HAA038.06S

EFEREMO WAQA FONG

V

THE STATE

Fiji High Court, Suva
19th, 26th May 2006
Gates J

JUDGMENT

Appeal from Magistrates Court; appeal against sentence; 39 counts in all, larceny (9), forgery (10), uttering forged document (10), obtaining money on forged document (9) and attempting to obtain goods on a forged document (1); court imposed 2 years imprisonment on each count but effective term of 8 years imprisonment because some were to be served consecutively; whether totality principle adhered to; appellant a clerk in chartered accountant’s office, loss to firm $28,758; nothing recovered; breach of trust by employee; some planning; admitted everything to police; early plea of guilty; 1st offender; 28 years old; State conceded appeal; tariff for breach of trust cases 18 months - 3½ years; 2 years imprisonment sufficient.

Counsel:
Mr M. Raza for the Appellant
Ms S.K. Puamau for the Respondent

[1] The appellant confines his appeal now to sentence only. On 16th February 2006 he was convicted on his own plea of guilty in the Suva Magistrates Court on a charge containing 39 counts. They comprised 9 counts of larceny, 10 counts of forgery, 10 counts of uttering forged document, 9 counts of obtaining money on forged document and 1 count of attempting to obtain goods on forged document.

[2] The appellant was sentenced to 2 years imprisonment on each count, counts 1-4 to be served consecutively to each other and counts 5-39 to be served concurrently to each other as well as to counts 1-4. The effective total term of imprisonment to be served was one of 8 years.

[3] The appellant’s complaint is with the order for consecutive sentences in counts 1 to 4. Mr Raza says it is harsh and excessive, and offends the totality rule.

[4] The appellant was a clerk working for a firm of chartered accountants. The appellant handled banking matters and had access to the financial books. The dishonesty was perpetrated on a client receivership account. He removed 8 blank cheque leaves from a cheque book and forged the signature of one of the partners who was the receiver in the matter. In all he drew out thereby $28,758. The crimes were carried out over a period of less than 2 months. Nothing was recovered. He admitted all of the allegations in his police interview.

[5] The aggravating factors here were the breach of trust towards his employer, and the non-recovery. The Magistrate also referred to the systematic planning. Certainly these were not spur of the moment crimes.

[6] The mitigating factors were the early plea of guilty, and that he was a first offender. At 28 years he was still comparatively young.

[7] The State concedes this appeal in counsel’s careful written submissions. Both counsel agree that 2 years, as imposed, was the correct sentence for each of the offences and in totality. If the learned Magistrate had ordered that the sentences on each count were to be served concurrently with each other, there would have been no challenge to the final order.

[8] The appellant could not escape an immediate term of imprisonment. In Deo v The State [2005] FJCA62; AAU0025.05S 11th November 2005 the Court of Appeal said:

"Frauds by an employee which involve a breach of trust strike at the very foundations of modern commerce and public administration. It has long been the rule that such cases must merit a sentence of imprisonment."

[9] The court considered suspended sentences in such cases to be exceptional and that they should rarely be ordered. A suspended sentence was rightly not considered appropriate here.

[10] The tariff for breach of trust sentences ranges from 18 months to 3½ years imprisonment: State v Sakiusa Bole [2005] FJHC 470; HAC0038.05S 4th October 2005 [$35,882 taken, 3 years imprisonment]. The learned magistrate had correctly arrived at the appropriate tier of sentence for each count on the charge sheet, taking into account the relevant sentencing factors. In Tokoni v The State [2005] FJHC 492; HAA0085J.05S 23rd September 2005, Shameem J considered 2 years appropriate for a larceny from a bank by one of its employees to the extent of $24,168. In the instant case, the overall offending does not require a total prison term as heavy as 8 years.

[11] I therefore make the following orders:

(a) The appeal is allowed.

(b) The sentence of 2 years imprisonment on each count is confirmed.

(c) The order for service of the terms of imprisonment on counts 1-4 consecutively is quashed.

(d) And in substitution it is ordered that on all counts the terms of imprisonment are to be served concurrently.

A.H.C.T. GATES
JUDGE

Solicitors for the Appellant: Messrs M. Raza & Associates, Suva
Solicitors for the Respondent: Office of the Director of Public Prosecutions, Suva