State v Johnson [2011] FJHC 240; HAC123.2010L (6 May 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 123 OF 2010L

STATE

vs

JEANETTE JOHNSON

Ms I. Whippy for the State
Mr. F. Koya for the Accused

Date of Hearing: 8 and 24 March, 8, 19 and 21 April 2011
Date of Sentence: 6 May 2011

SENTENCE

[1] On the 21st April 2011, in this Court the accused entered a plea of guilty to two representative counts of larceny by servant for theft of money under the Penal Code Cap. 17 and obtaining property by deception for theft of money under the Crimes Decree 2009.

[2] The counts read as follows:

FIRST COUNT

Statement of Offence

LARCENY BY SERVANT: Contrary to section 274(a)(1) of the Penal Code, Chapter 17.

Particulars of Offence

JEANETTE JOHNSON from the 6th day of January 2009 to 27th day of January 2010 being a servant of Rosie Holidays in Nadi stole money to the total amount of $93,282.00 the property of Rosie Holidays.

SECOND COUNT

Statement of Offence

OBTAINING PROPERTY BY DECEPTION: Contrary to section 317 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JEANETTE JOHNSON from the 2nd day of February 2010 to the 2nd day of June 2010 by a deception dishonestly obtained money from Rosie Holidays to the total amount of $52,340.00 the property of the said Rosie Holidays in Nadi.

[3] The accused admitted a set of facts and was convicted on her plea and her admission.

FACTS

[4] The facts admitted are:

"The accused Jeanette Johnson was employed as the customer care manager at Rosie Holidays a company situated at Martintar in Nadi. She had been in the employ of the company for 17 years.

From 6th January 2009 to the 2nd of June 2010 the accused would type out fake emails. She would pretend that they were emails from other companies requesting flower leis. The accused would then fill out vouchers for the lei orders and tender it for authorization to their accounts section. When the vouchers had been authorized by the accounts section the accused would then delete the files from the system to avoid detection. She would then take the cash payment and use the monies herself.

A member of the staff became suspicious and informed the financial controller in the company who then ran an audit check and found that the accused had been deceptively obtaining cash from her own company. The audit revealed that the accused had in fact stolen a total of $145,622.00 (one hundred forty five thousand, six hundred and twenty two dollars) within the time period noted above.

The matter was then reported to the police and an investigation was launched. The accused was interviewed and admitted committing the offence. None of the stolen money was recovered."

[5] Mr. Koya, on the accused's behalf has advanced extensive and helpful mitigation both written and oral on her behalf. She has of course pleaded guilty which is very much to her credit and a strong indication of her remorse. She is 47 years of age, married with 4 children. Her husband works for FSC and being the present sole breadwinner of the family earns a net income of $180.00 per week. Her two elder children live abroad and her two younger at home. Her 18 year old son suffers from bipolar affective disorder with psychosis and a medical officer from St. Giles has proffered the medical opinion that the boy may well recover with supervision and adequate support. The accused tells me that she provides that.

[6] The maximum penalties for larceny by servant and for obtaining property by deception are fourteen years and 10 years respectively. These offences are akin to offences of fraud and forgery and as such would attract sentences of between three and six years (see Anand Kumar Prasad and Others – HAC 24 of 2010L). These acts of fraud were committed systematically over a period of 17 months, in total breach of trust of an employer she had been with for 17 years. The offences are very serious.

[7] I take as my starting point for each offence a term of 2 years imprisonment. The frauds were planned and systematic over a long period and for those aggravating features I add a further 12 months to the sentence bringing it up to three years. The accused has entered a plea of guilty at an early stage (and indeed indications of a plea were given very early in the proceedings) and she has co-operated with the authorities throughout. For that she will receive a discount of twelve months, bringing her sentence back down to two years. She has a clear record and has also several references of good character from friends and former colleagues. For that she will receive a further discount of six months bringing her sentence down to a term of 18 months imprisonment.

[8] It is a general rule that crimes of breach of trust must attract an immediate custodial sentence. It was said in Barrick 81 Cr. App. R(S):

"The type of case with which we are concerned is where a person in a position of trust has used his trusted position to defraud his partners or employers. 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 his life be able to secure similar employment with all that means in the shape of disgrace for himself and hardship for himself and also his family."

And later (at pages 81 and 82):

"In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small. Despite the great punishment that offenders of this sort bring upon themselves, the Court should nevertheless pass a sufficient substantial term of imprisonment to mark publicly gravity of the offence."

[9] The amount defrauded in this case is not exactly small. $145,000 is rather a large sum.

[10] The accused prays for a non-custodial sentence, but the weight of authority does not support her submission. The amount is large, it is a breach of trust, it was a planned systematic fraud.

[11] There is however a large body of mitigatory material in the accused's favour:

• She pleads guilty.
  
• She is remorseful (which has been obvious to the Court from her demeanour).
  
• She has wide support from friends and colleagues.
  
• She has a handicapped child to care for.
  

All of these factors would persuade a Court to suspend the sentence were it not for lack of restitution to the victim.

[12] From the discovery of the offences in July 2010, not one penny has been repaid, although recently negotiations have been entered into about a scheme of periodic repayments. The accused has offered to repay in the sum of $200 per month, a scheme which would take her 60 years to complete. Such a proposal is unrealistic and is the only factor, that stands in the way of a non custodial sentence, given her forceful mitigation.

[13] The sentence for each offence is 18 months imprisonment to be served concurrently. The first six months of that sentence will be suspended and the accused will return to this Court on Friday 4th November 2011 at 9.00am, at which time the remaining 12 months of her term will be revisited.

Paul K. Madigan
JUDGE
At Lautoka
6 May 2011