Yee v State [2011] FJHC 385; HAA016.2011 (13 July 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

High Court Criminal Appeal No.:
HAA 016 OF 2011

BETWEEN:

CHRISTOPHER YEE
Appellant

AND:

STATE
Respondent

Counsel: For Appellant - In Person
For Respondent/State - Ms. Tikoisuva

Date of Hearing: 22/06/2011
Date of Judgment: 13/07/2011

JUDGMENT

[1] On 23rd June 2010, the appellant pleaded guilty in the Magistrates Court, Suva to the following offence:

Statement of Offence (a)

EMBEZZLEMENT: Contrary to Section 274(a) (ii) of the Penal Code, Cap.17.

Particulars of Offence (b)

CHRISTOPHER YEE, between the 1st day of January, 2004 and the 13th day of November, 2007 at Suva in the Central Division, being employed as a credit clerk for FIJI GAS LIMITED, fraudulently embezzled $45,938.71 in monies received by him in the name and on the account of his employer, the said FIJI GAS LIMITED.

[2] On his plea of guilty, appellant was convicted for the above offence and on 13th December 2010 he was sentenced to 30 months imprisonment with a non-parole period of 18 months.

[3] He appeals against the said sentence on the ground that the sentence is harsh and excessive.

[4] Appellants amended grounds of appeal filed on 9/6/2011 were:

(i) That the trial Magistrate erred in law when he failed to exercise consistency in his application of the sentencing principles, especially where he had failed to consider a 1/3 reduction of sentence normally granted by the courts, for a plea of guilty at the first opportunity.

(ii) That the trial Magistrate had failed to fully acquaint himself with the circumstances of the appellants case, especially where the appellant through self denial, had initiated the confession of crime to his superiors admitting wrong and his desire to retain his work as a possible means of restitution to repay the amount he had illegally obtained.

(iii) The appellant strongly believes that, his efforts to rehabilitate himself through his early admission to the investigating authorities, followed by his complete disclosures of the fraudulent methods used was not adequately considered as a strong indicator of his remorse.

(iv) That the trial Magistrate had failed to give enough consideration and weight to the factors said in mitigation, given the fact that the appellant is a first offender, and had been punished enough by the loss of his employment.

(v) That the appellant honestly believes the sentence ordered by the court is too harsh and very excessive.

[5] Appellant has submitted in Ground No.(i) that the learned Magistrate has failed to consider a 1/3 reduction for his early plea of guilty.

[6] The learned Magistrate in his sentencing judgment in paragraph 8, considering the early guilty plea has reduced 6 months from the sentence of imprisonment.

[7] In case of Daunabuna v State [2009] FJCA 23; AAU 0120.2007 (4 December 2009) the court stating that the weight to be given to a guilty plea depends on a number of factors, said:

"A plea of guilty is always a matter which must be taken into account when imposing sentence. The degree of leniency to be afforded will depend upon many different factors. The plea may in some cases be an indication of contrition, or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the prisoner has pleaded guilty. The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from the recognition of the inevitable: Shannon (1979) 21 SASR 442 at 452; Ellis (1986) 6 NSWLR 603 at 604. The plea of guilty may also be taken into account as a factor in its own right independently of such contrition, as mitigation for the co-operation in saving the time and cost involved in a trial. Obviously enough, the extent to which leniency will be afforded upon this ground will depend to a large degree upon just when the plea of guilty was entered or indicated (and thus the savings effected): Beaven (unreported, Court of Criminal Appeal, NSW, Hunt, Badgery-Parker and Abadee JJ, 22 August 1991), at p.12.

The important point to be made is that leniency is afforded upon the second ground as a result of purely utilitarian considerations, as with the 'discount' allowed for assistance given to the authorities: Cartwright (1989) 17 NSWLR 243; Gallagher (1991) 23 NSWLR 220; 53 A Crim R 248. The leniency is afforded in order to encourage early pleas of guilty so that the criminal list is more expeditiously disposed of and so that other cases, in which there is a genuine issue to be determined, will be brought on for hearing without delay.

Encouragement will be given to early pleas of guilty only if they lead (and are seen to lead) to a substantial reduction in the sentence imposed. That does not mean that the sentencing judge should show a precisely quantified or quantifiable period or percentage as having been allowed. Indeed, it is better that it not be shown; that was the point of this Court's decision in Beavan at pp 14-15. As was said in that case - discounts for assistance given to the authorities to one side – it is both unnecessary and often unwise for the judge to identify the sentence which he or she regards as appropriate to the particular case without reference to one factor and then to identify the allowance made which is thought to be appropriate to that particular factor."

[8] Therefore, there is no hard and fast rule that the Magistrate should give a 1/3 reduction of the sentence for early guilty plea. It is the discretion of the Magistrate to consider the reduction to be given considering the circumstances of each case.

[9] The learned Magistrate has considered the early guilty plea and has given a 6 month reduction, to which this court has no reason to interfere with. Therefore this ground fails.

[10] In paragraph 18 of the judgment the learned Magistrate has considered all the mitigating factors placed before him including that the appellant was remorseful and apologetic and further his loss of employment. Therefore ground (iii) and (iv) has no merit.

[11] Appellant submits that he initiated the confession of crime to his superiors admitting wrong and his desire to retain work as a possible means of restitution to repay the amount, was not considered by the learned Magistrate.

[12] This is a serious case of breach of trust where appellant could not have expected the employer to retain him in the position, where the appellant calculatedly offended for over a period of about 4 years. In paragraphs 15, 16 and 17 of his judgment the learned Magistrate has correctly and adequately described the seriousness of the offence. However, the appellant has not made any restitution. Therefore, ground no.(ii) should necessarily fail.

[13] The learned Magistrate was correct in deciding on the starting point and on the sentence which is well within tariff. In State v Ram Lingam Criminal Case No. HAC 010 of 2000S (15 June 2001) Justice Shameem said;

"The authorities for sentences imposed for fraud related offences appear to reflect a tariff of between 18 months imprisonment and 4 years imprisonment. The decision for Pathik J in Gerald Neelamkant Panniker Crim. App. No. 28 of 2000 refers to the guideline decision of the English Court of Appeal in Barrick 81 Crim. App. R.78 (Per Lord Lane CJ). In Barrick (supra) it was held that relevant matters for sentence were the quality and degree of trust reposed in him, the period over which the fraud had been perpetrated, the use to which the money was put, the effect on the victim, the impact on the effect of public confidence and the offender's own circumstances."

[14] Suspension of sentence in this case is not appropriate as the applicant has urged. This is a case of serious breach of trust and further the appellant has not paid at least the part of the money he misappropriated to the victim company. This is a calculated offence committed over a period of 4 years.

[15] In case of Deo v The State [2005] FJCA 62; AAU 0025.2005S (11 November 2005) Fiji Court of Appeal said in the paragraph 27 of the judgment;

"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. Where the sentence imposed is of such a length that the court has power to consider suspending it, the sentencing judge must consider that option. However, that decision should only be made where there are special circumstances meriting such a sentence and, in all cases, the sentencing court should not be too quick to find such circumstances."

[16] There are no exceptional circumstances to suspend the sentence. The learned Magistrate has also considered all the mitigating factors including the references given by the priest and his neighbor.

[17] In the circumstances the learned Magistrate was right in not suspending the sentence.

[18] However, I find that the learned Magistrate has passed the sentence only on the 1st December 2010, about 6 months after the appellant pleaded guilty. No reasons were given for the delay of 6 months.

[19] In Deo v The State (supra) the court said in paragraph 30 of the judgment;

"On the other hand, undue delay in the investigation and trial of such offences will tend to strengthen the mitigating effect of such matters. The courts in Fiji seem almost to possess a culture of delay. Magistrates and Judges should not lose sight of the detrimental effect on the person charged of a seriously delayed determination of his case. In the case of a first offender, that is likely to be particularly destructive."

[20] The learned Magistrate has failed to consider that this case was hanging over the appellants' head for 6 months awaiting sentence after pleading guilty. Considering the aforesaid factor I reduce 3 months from the sentence. Therefore the final sentence of the appellant would be 27 months imprisonment with a non parole period of 18 months.

[22] The appeal is allowed to the above extent.

Priyantha Fernando
JUDGE

At Suva
13th July, 2011.