State v Chand [2011] FJHC 313; HAA023.2010 (2 June 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 023 OF 2010

BETWEEN:

STATE
Appellant

AND:

RAVEEN CHAND
Respondent

Ms L. Vateitei for the State
Respondent in Person

Date of Hearing : 27 April 2011 and 30 May 2011
Date of Judgment: 02 June 2011

JUDGMENT

[1] On the 3rd September 2010, in the Magistrates Court at Nadi, the respondent entered pleas of guilty to 21 charges of larceny by servant, contrary to section 274(a)(1) of the Penal Code, Cap. 17. The thefts were of varying amounts of cash, ranging between F$425.57 and $6437.30, all in total being $83,753.99.

[2] He told the Court in mitigation that he was 36 years of age, married with 2 children, 6 years and 5 months. It was his first offence (and last) and said he took the money because his wife had medical problems in pregnancy leading to a premature birth. He had repaid the total sum stolen to the company and had co-operated with the Police. He was paying university fees for his two fatherless nephews. He asked that a conviction not be recorded as he had bright employment prospects, and he in additional may have to travel abroad with his sickly baby.

[3] The Magistrate "pursuant to section 5(j)" ordered that no conviction be recorded and that the charges be dismissed conditional on "non re-offending for the next 24 months".

[4] The State, with the signed consent of the then DPP appeals those sentencing orders on the grounds that the penalty is manifestly inadequate.

[5] Larceny by servant is of course a very serious offence in that it goes to the heart of the trust relationship between an employer and his servant. As was said in Barrick – 81 Cr. App. R(s) 78:

"Offenders in cases such as these will almost always be people of good character who have never offended in their lives before and who have families who suffer inordinately by their offending. Nevertheless society expects to see condign punishment meted out to those who offend. In extreme circumstances, a suspended sentence is not wrong in principal."

[6] It is most confusing that the Magistrate has ordered that convictions not be recorded "pursuant to section 5(j)". He does not refer to what particular piece of legislation he takes his "5(j) from – one would assume that the Sentencing and Penalties Decree would be the operative legislation; but therein the provisions for non-recording of convictions is section 45(1); section 45(2) allows the Court to adjourn sentencing for up to 5 years on conditions imposed. The Magistrate having dismissed the charges is unfortunately left with nothing to sentence.

[7] It must be presumed that the Magistrate's intention was to find the accused guilty and not record convictions pursuant to section 45(1) of the Sentencing and Penalties Decree, and in dismissing the charges, can go no further.

[8] Apart from the confusion arising out of the Magistrate's order, it is not appropriate in this case to order that no conviction be recorded. The charges are serious and the funds misappropriated are monies donated by a foreign government for local investment. Should the Magistrate have wanted to be lenient, the actual sentence would be the correct path to effect that generosity. It is wrong in principal in cases of larceny by servant involving a breach of fiduciary trust, that convictions not be recorded. This was a systematic series of thefts over a period of 15 months of monies destined for aid projects in Fiji.

[9] The order for non-conviction is quashed and convictions are entered on all twenty-one charges of larceny by servant.

[10] The range of sentence for larceny by servant ranges from suspended sentences (in extreme circumstances) to ten years imprisonment, depending on the nature, length and amount of the theft or fraud. The amount stolen in this case was $83,000, a not inconsiderable sum. It is also very relevant that in cases such as these which appear to be becoming more prevalent that the need for deterrence is recognized and that no wrong signals are sent to those working with cash and cheques.

[11] Nevertheless, the respondent has very strong mitigating factors in his favour. He pleaded guilty at first opportunity having earlier co-operated in the inquiry. He voluntarily repaid all of the monies well before his appearance in Court and he expresses extreme remorse. He tells me that he is completing his studies for a Bachelor of Commerce degree at USP and that he has arranged employment in New Zealand.

[12] The respondent has had since September 2010, every expectation of remaining free in society and has begun to put his life together. To impose a custodial sentence upon him now would be most unjust. In Raymond Roberts [2004] HAA 69/04, Shameem J. held that where a first offender pleads guilty, and makes full restitution (showing remorse), a suspended sentence is not wrong in principle.

[13] In the premises, I allow the State's appeal. A conviction is to be recorded for each of the 21 charges and the sentence to be imposed in respect of all charges is a term of imprisonment for 18 months, to be suspended for two years from the 3rd September 2010.

[14] A suspended sentence is explained to the respondent.

Paul K. Madigan
JUDGE
At Lautoka
2 June 2011