State v Chand [2011] FJHC 180; HAC122.2009 (22 March 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 122 OF 2009

BETWEEN:

STATE

AND:

MUNESH CHAND

Counsel : Ms. S.Puamau & Ms. S. Naidu for the State
Mr. R. Singh for Accused

Date of Hearing : 14th March 2011
Date of Sentencing : 22nd March 2011

SENTENCE

[1] The Director of Public Prosecutions had preferred the following charges against you.

"MUNESH CHAND is charged with the following offence:

FIRST COUNT

Statement of Offence

LARCENY BY SERVANT: Contrary to section 274(a) (i) of the Penal Code, Cap 14.

Particulars of Offence

MUNESH CHAND s/o Ravi Chand, on the 15th day of April 2009, at Suva in the Central Division, being employed as an Accounts Clerk by FIJI SHIPS AND HEAVY INDUSTRIES LIMITED, stole $428.24 in cash, the property of FIJI SHIPS AND HEAVY INDUSTRIES LIMITED

SECOND COUNT

Statement of Offence

LARCENY BY SERVANT: Contrary to section 274(a) (i) of the Penal Code, Cap 14.

Particulars of Offence

MUNESH CHAND s/o Ravi Chand, on the 27th day of May 2009, at Suva in the Central Division, being employed as an Accounts Clerk by FIJI SHIPS AND HEAVY INDUSTRIES LIMITED, stole $1,792.50 in cash, the property of FIJI SHIPS AND HEAVY INDUSTRIES LIMITED.

THIRD COUNT

Statement of Offence

LARCENY BY SERVANT: Contrary to section 274(a) (i) of the Penal Code, Cap 14.

Particulars of Offence

MUNESH CHAND s/o Ravi Chand, on the 04th day of November 2009, at Suva in the Central Division, being employed as an Accounts Clerk by FIJI SHIPS AND HEAVY INDUSTRIES LIMITED, stole $3,215.65 in cash, the property of FIJI SHIPS AND HEAVY INDUSTRIES LIMITED."

[2] Initially you have pleaded not guilty to the charges and the trial commenced, in the half way you informed the Court that you would like to reconsider your Plea. The trial was adjourned and vacated subsequently.

[3] When the case was taken up for fresh trial you pleaded guilty to all 3 counts in the information.

[4] You have admitted the summary of facts submitted by the State. I reproduce the summary of facts as below.

"The Accused's was employed with FIJI SHIPS AND HEAVY INDUSTRIES LIMITED from 2 February 2009 until 6 November 2009. He was a contracted worker as per his contract of employment and was receiving a net salary of $331.20 on a fortnightly basis. The Accused held a personal Access bank account with the Australia and New Zealand Bank, account number 9936530.

His duties included the preparation of the company payroll which incorporated salaries and wages for the contracted and casual workers. Contracted workers were paid on a fortnightly basis and casual workers were paid on a weekly basis. The workers enter their hours onto their timecards. The timecards are checked and verified by the Personnel Officer. These are then forwarded to the Payroll Officer, that is, the Accused. The Accused was responsible for the detailed process as follows.

The detailed process involved entering the hours into the payroll software used by the Company with all allowances and claims. The payroll would then be processed. Upon processing the payroll, the net pay amounts were manually entered into the disc data. The disc data is then printed into a hard copy for verification and authorization by the cheque signatories. After authorization, the disc holding a soft copy of the disc data would be sent to the Westpac Banking Corporation, the Company's bankers, for processing. The Accused was also responsible for taking these lodgments to the Westpac Banking Corporation, once the payroll had been prepared. The Westpac Banking Corporation would then directly credit the salaries and wages to the respective worker's bank account within the bank and also to other banks where the workers held their account.

The Accused would prepare the disc data which encompassed a listing of payments of wages and salaries for respective workers and issue a print out of this to the Payment Voucher Signatories of the Company. Once the Vouchers were approved and signed, the Accused would then alter the figures on the disc data which in effect had an increased amount of allowances for employees on the soft copy version of the disc data. This altered soft copy version of the disc data would then be submitted to the Westpac Banking Corporation. Payment distribution would be made by the bank according to this altered data presented to them.

The altered excess amounts of individual worker's allowances were then credited to the Accused Account in the Australia and New Zealand Bank, account number 9936530, for which he was neither authorized nor entitled to from FIJI SHIPS AND HEAVY INDUSTRIES LIMITED.

The anomaly was detected in late October by RAIYAZ AHMED s/o JADU RAM SINGH (PW1) of Lot 15 Nawanawa Road, Nadera, Accountant of FIJI SHIPS AND HEAVY INDUSTRIES LIMTED. PW1 discovered that there was a discrepancy in the pay slip of workers as compared to the processed payroll as prepared by the Accused. The amount of the pay slip was less than that in the processed payroll. The pay slip showed that individual workers continued to receive the correct wages and salaries. PW1 also discovered that the difference in amounts was fraudulently credited to Accused's personal bank account."

5. Considering your plea to be unequivocal the Court convicted you on all three Counts as per the information.

6. Now I consider the relevant law. Section 274 of the Penal Code provides maximum 14 years imprisonment.

7. Now I consider the tariff for the offence.

In State v Kesi [2009] FJHC 145; HAC 024.2009 Justice Goundar referred to the case of Panniker v State Cr. App. No. 28 of 2000, where Justice Pathik adopted the English guidelines on the proper level of sentence to be imposed in dishonesty cases that are set out in the case of John Barrick [1985] 81 Cr. App. R 78 at 82. The guidelines are as follows:

(i) the quality and degree of trust reposed in the offender including his rank;

(ii) the period over which the fraud or the thefts have been perpetrated;

(iii) the use to which the money or property dishonestly taken was put;

(iv) the effect upon the victim;

(v) the impact of the offences on the public and public confidence;

(vi) the effect on fellow-employees or partners;

(vii) the effect on the offender himself;

(viii) his own history;

(ix) those matters of mitigation special to himself such as illness, being placed

under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial;

(x) any help given by him to the police.

8. In State v Raymond Roberts [2004] FJHC 51, Justice Shameem stated:-

"The principles that emerge from these cases are that a custodial sentence is inevitable where the accused pleads not guilty and makes no attempt at genuine restitution. Where there is a plea of guilty, a custodial sentence may still be inevitable where there is a bad breach of trust, the money stolen is high in value and the accused shows no remorse or attempt at reparation. However, where the accused is a first offender, pleads guilty and has made full reparation in advance of the sentencing hearing (thus showing genuine remorse rather than a calculated attempt to escape a custodian sentence) a suspended sentence may not be wrong in principle. Much depends on the personal circumstances of the offender, and the attitude of the victim."

9. Further in Barrick, as discussed in State v Raymond Roberts, the Court found that "a term of up to 18 months imprisonment was appropriate for the theft of amounts up to £10,000, 2 to 3 years imprisonment for the theft of amounts between £10,000 and £50,000, and terms of 3 ½ to 4 ½ years for thefts of more than £50,000."

10. In State v Mahendra Prasad [2003] FJHC 320; HAC0009T.2002S (30 October 2003), Justice Gates had considered the case of Barrick and stated at paragraph 26:-

"The court confirmed a tariff of between 2 to 3 years imprisonment for the medium range offences here where sums of between £10,000 [£30,000] to £50,000 [F$150,000] were involved. It would not be usual to suspend the sentence in cases of serious breach of trust. A sentence of 2 years immediate imprisonment was upheld."

11. Considering the available authorities tariff for the offence is between 1½ years to 4½ years.

12. You admitted that the total amount stipend out from your employers Fiji Ships and Heavy Industries Ltd was $60,000. It is submitted to Court that you have deposited part of the money namely $34,267.76 at the ANZ Bank Suva branch.

13. Considering all factors I commence your sentence at 3 years imprisonment.

14. Now I consider you aggravating factors.

a) You have committed this offence for a long time i.e. between February to November 2009.

b) You have misappropriated the tax payers' money.

c) You have created loop holes in the Government financial system and made the system unsecure.

d) You have broken the trust of Government service.

Considering all aggravating factors I increase 3 years. Now your sentence is 6 years imprisonment.

15. Now I consider your mitigating circumstances.

a) Your Counsel claims you are remorseful

b) You have pleaded guilty to the charges

c) You have agreed to confiscate the proceed of crime which were deposited at your bank

d) You are married

Considering all your mitigating circumstances I reduce 2 years from your sentence. Now your sentence is 4 years imprisonment.

16. Your Counsel submits that you should be given a suspended term. Considering the
nature of the crime, it is meticulously planned and executed Hi-Tec white collar crime. Any lenient sentence will not only make employer – employee's trust at stake, but also might encourage the others to commit crime of this type.

17. Further, in State v Kesi [ 2009] FJHC 145; HAC 024.2009, Justice Goundar stated that "suspension of sentence [in these types of cases] is only considered where an early restitution is made as true expression of remorse and not just an attempt to buy one's way out of prison (State v Cakau HAA125 of 2004S)."

18. Now I consider section 18 (1) of the Sentencing & Penalties Decree. After considering the nature of the offence and the way it was committed I impose 3 years as non parole period.

19. Further I make order the Fiji Ships and Heavy Industries Limited (Government commercial company) can claim the proceeds of crime $34,267.76 from the ANZ Bank Suva branch.

20. You are sentenced to 4 years imprisonment with 3 years as non parole period.

21. You have 30 days to appeal.

S Thurairaja
Judge
At Suva

Solicitors
Office of the Director of Public Prosecution for State
Kohli & Singh for Accused