State v Chaudary [2008] FJHC 22; HAC 69.2007, 70.2007 & 71.2007 (19 February 2008)

IN THE HIGH COURT OF THE FIJI
CRIMINAL JURISDICTION
AT SUVA

Criminal Case No: 69 ,70 &71 of 2007

BETWEEN

THE STATE

AND

SHAILESH CHAND
CHAUDARY

Mr. A Rayawa for the State
In Person

Date of Sentence: 19 February 2008.

SENTENCE

1. Shailesh Chand Chaudary[Shailesh], you have been found guilty on 1 count of Larceny, contrary to sections 259 and 262 of the Penal Code Cap 17; 8 counts of Forgery, contrary to sections 332 and 335(2 )(a)of the Penal Code, Cap 17, 4 counts of uttering a Forged Documents, contrary to section 343(1) of the Penal Code Cap 17 and 4 counts of Obtaining Goods on Forged Documents, contrary to section 345 of the Penal Code Cap 17. In total 17 counts of fraudulent related offences.
   
2. You were found guilty after a trial before Assessors extending over 4 days. They were unanimous in their verdict of guilty on all the 17 charges that were prosecuted against you. I accepted the assessors’ verdict and found you guilty as charged. This is your sentence.
   
3. The liable punishment for Larceny on the facts of this case is 5 years imprisonment: section 262(1) PC; the liable punishment for Forgery on the facts here is 14 years imprisonment; the liable punishment for Uttering Forged Documents is 14 years on the facts here and for Obtaining Goods on Forged Document the liable punishment is 14 years.
   
4. Shailesh you were one of three persons who went to Lautoka, where you and another stole a cheque book belonging to Fakirbhai V Patel Ltd. You all came back to Suva and between the dates alleged in the particulars of the offence you were charged with, you carried out a systematic and well planned series of forgery and use the forged cheques to obtained goods. In considering the manner and expertise that attends the carrying out of the criminal activities you were engaged in with others, there is no doubt in my mind that you had scant regard for peoples rights to their property and to their enjoyment of it. These are reprehensible conduct.
   
5. Shailesh, you have submitted the following in mitigation:
   
   • You are a first offender;
   • You are married with young children;
   • Your old and sick mother needs your support;
   • You promise not re-offend in the future
     
6. This court observes that even though the accused is a first offender. He is 37 years old and his role as revealed in the evidence adduced in evidence, shows that he had a pivotal role in the actual forging of the false documents [cheques] used obtain goods from the various business house targeted. Whilst rehabilitation is an important consideration in sentence determination, in this instance the calculated and planning that was evident in carrying out the crime, needs proportionate punishment.
   
7. The following aggravating factors considered are:
   
   • Your Form 7 level of education should have better informed you that serious consequences will flow from criminal activities;
   • Lack of real as opposed to stated remorse;
   • Only partial recovery of goods obtained.
     
8. The following public interest consideration were also considered by the court:
   
   • The prevalence of this type of offending in our society and the need for the court to make it clear through lawful sentences that it will not be tolerated;
   • The need pass sentence that will deter likely future offenders;
   • The need to protect innocent people who live in our community from the criminal activities of a few;
   • The need to consider the victims in this case. Their loss has not been fully recovered.
     
9. The court has also considered the following case law on sentencing in similar cases:
   
   1. For Larceny, Viliame Cavulagi v The State {2004] FJHC 92, this court reviewed sentencing case law for Larceny in several High Court case and decided that the tariff for this offence is 1 to 4 years imprisonment. A first offender can expect a 1 year imprisonment sentence at least;
      
   2. For Forgery, the average sentence for a first offender is 1 year imprisonment, however, a 3 year sentence was imposed in Hu Jung Yun v The State [2005] HAA 024 of 2005. In Vinod Prasad v The State [1996]HAA 55 of 1996, a 3½ years imprisonment was reduced to 2 years on the principle should not lose hope of changing his life;
      
   3. For uttering Forged Document: the average sentence is 6 months imprisonment: Lauzik Mukesh Chand v The State,FCA AAU 013 of 1998.
      
   4. For Obtaining Goods on Forged Documents, 1to 4 years imprisonment is the tariff: Vishwajit Prasad v The State, FCA, Criminal case No: AAU 023 of 1993.
      
10. The accused in his submission on sentence, drew the attention of the court to the fact that one of his co-offenders [Ronald Rohit Kumar] was sentenced in the Magistrates Court on similar charges on 5 May 2007. He was given 12 months imprisonment suspended for 2 years sentences on concurrent on the counts. On that basis he asked the court to pass a similar sentence in this trial.
    
11. All I wish to say that I am not bound by the decision of the learned Magistrate. Secondly, if the learned Magistrate was aware that the matter before him, involving the same facts and that a co-accused has elected trial in the High Court, the correct approach to be adopted was for the court below not pass sentence until the superior courts have determine the issue.
    
12. I have carefully considered all the mitigation, aggravating factors and others relevant factors. I have considered relevant case law. The sentence I find fair and just in all the circumstances of this case are as follows:
    
    1. For Count 1: Larceny, contrary to section 259 and 262 of the Penal code Cap 17, Shailesh Chand Chaudary you are sentenced to 6 months imprisonment;
       
    2. For Counts 2,5,8, 11, 14, 17,20 and 23: Forgery, contrary to sections 332 and 335(2)(a) of the Penal Code Cap 17, you are sentenced to 2 years imprisonment on each of the counts;
       
    3. For Counts 15, 18,21 and 24: Uttering a Forged Document, contrary to section 343(1) of the Penal Code Cap 17, you are sentenced to 6 months imprisonment on each of the counts;
       
    4. For Counts 16, 19, 22 and 25: Obtaining Goods on Forged Documents, contrary to section 345(a) of the Penal Code cap 17, you are sentenced to 3 years imprisonment on each count.
       
13. I have considered whether the sentence should be concurrent or consecutive or some consecutive and the others concurrent. In the light of the need to give the accused one last opportunity to change and his family circumstance, I have decided that all the sentences will be served by the accused concurrently.
    
14. This means that the effective sentence is 3 years imprisonment, starting from today, 19 February 2008.
    
15. The accused had asked for the court to consider a suspended sentence. I am unable to find any exceptional circumstances that would allow me suspend the 3 years imprisonment sentence I have passed.
    
16. I therefore make the following orders:
    

1. Shailesh Chand Chaudary, you are sentenced to 3 years imprisonment with effect from today.
   

Isikeli Mataitoga
JUDGE

At Suva
19 February 2008.