State v Singh [2012] FJHC 855; HAC042.2008 (3 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Appeal No. HAC 042 /2008

BETWEEN:

STATE
Appellant

AND:

MAHENDRA SINGH
Respondent

BEFORE: Mr. Justice P. K. Madigan

COUNSELS: Ms T. Leweni for State
Mr. M. Raza for Accused

Date of Hearing: 30th January, 2nd February 2012

Date of Judgment: 3rd February 2012

SENTENCE

1. On the 30th January 2012 the accused entered a plea of guilty to eighteen counts of fraud in this Court. The eighteen counts represented six "incidents" of fraud and each incident is represented by one count of forgery, one of uttering and one of obtaining money on a forged document; all offences being charged under Sections 335(1) (c), 343(1) and 345(a) of the Penal Code, Cap 17, respectively.
   
2. The accused admitted a set of facts put to him and was consequently convicted of all eighteen counts.
   
3. The information is overloaded. By charging eighteen counts rather than a representative set of three counts, the prosecution is not only prolonging the courts time in dealing with fifteen counts which will have no additional effect on sentence, it is creating difficulties should the matters have gone to trial. In producing evidence both oral and documentary on fifteen unnecessary counts, the state is adding days to the court calendar, as well as unnecessarily prejudicing the accused in his defence. The information although overloaded is not defective and it is not proper for this Court to dictate what the Director of Public Prosecutions should charge; but care should be taken not to waste the Court's time when there is every likelihood that sentence will not be enhanced.
   
4. The facts admitted by the accused were that he joined the Fiji Police Force in May 1989. From April 1999 he was posted to Navua into the Uniform branch. Whilst at Navua, he became the Administration Officer and when the Station Sergeant was absent he would carry out the duties of that Officer. One of the duties of the Station Sergeant was to process witness claims.
   
5. After a witness had attended court, he or she would make a claim for expenses to the Station Sergeant who would do the necessary calculations and prepare a payment voucher to be taken to the Post Office for encashment.
   
6. The basis of these offences is that when acting as Station Sergeant the accused would prepare witness claim vouchers under fictitious names and addresses. On forging the signatures of the fictitious names be would take them to Pacific Harbour Post Office for encashment.
   
7. The accused would tell the cashiers at the Post Office that the witnesses were living far away and he was going to deliver the money to them. One of the cashiers became suspicious and reported the matter to the Navua Police Station, a report which instigated investigation into these offences.
   
8. For the first set of three counts, the accused on the 4th of April 2006 forged a witness claim voucher number 65069 in the name of Vikram Singh for a traffic case in the sum of $280.00 He uttered this claim at Pacific Harbour Post Office where he fraudulently obtained the money.
   
9. In the second set of three counts, the accused on the 4th of April 2006 forged claim number 65070 in the name of Jasvindar Kuar for a traffic case in the sum of $163.00 and uttered the claim at Pacific Harbour Post Office where he fraudulently obtained the money.
   
10. With respect to the third set of three counts, the accused on the 11th April 2006 forged witness claim voucher 65071 in the name of Sekove Ratu in the sum of $310.00 and in uttering it that day at Pacific Harbour Post Office obtained the funds fraudulently.
    
11. For the fourth set of three counts, the accused on the 11th April 2006 forged claim voucher 65072 in the name of Kalesi Kaibau in the sum of $193.00 and uttering the claim that day at Pacific Harbour Post Office fraudulently obtained the funds.
    
12. On the 22nd April 2006, the accused forged claim voucher 89013 in the name of Malkeet Singh for $129.00 He uttered the claim at Pacific Harbour Post Office where he fraudulently obtained the funds.
    
13. For the sixth and final set of three counts, the accused forged witness claim voucher number 89014 in the name of Rishma Prakash with the sum of $132.00 and in uttering the claim at Pacific Harbour Post Office he obtained the sum of money fraudulently.
    
14. In total the accused obtained the sum of $1207.00 on the uttering of those forged documents.
    

Mitigation

15. In a comprehensive written submission on behalf of the accused, Mr Raza tells me that the accused is 51 years old, married with three children of mature age. As well as being in the Police Force, he is a part time officer with the RFMF territorial forces and has served three separate tours of duty in both Lebanon and to the Sinai. He is presently on interdiction from the Police Force without salary and now on conviction will be dishonorably discharged.
    
16. He has a clear record.
    
17. He is one of the trustees of the religious body to which he belongs and the President of that body has provided a reference for his hard work for the body and his general helpfulness.
    
18. Two references from the Military Forces tell me of his dedication and loyality to the Territorial Forces and of his strength and leadership during his three tours of duty in the Middle East.
    
19. He expresses remorse and recognizes his deeds as acts of stupidity and madness, but were effected to defray medical expenses for his wife travelling to and from CWM Hospital in Suva from Navua.
    
20. Most importantly, the accused relies on his pleas of guilty after the case has been hanging over his head since he was charged in 2008.
    

The Law

21. Abuse of employers' money especially in the context of government funds is regarded seriously. Although not strictly a breach of trust case, the systematic fraud and theft of the money was petty, greedy and totally irresponsible, and there is no reason why a starting point for each of the forgery and uttering offences should not be within the tariff of 18 months to three years, set by Hu Jun Yun HAA 24 of 2005 and Kesi HAC 24 of 2006.
    
22. For each of the six forgery counts (Counts 1,4,7,10,13 & 16) and for each of the six uttering counts (Counts 2,5,8,11,14 & 17) I sentence the accused to eighteen months imprisonment all terms to be served concurrently.
    
23. As this Court said in Suguturaga HAC 43 of 2009 the offence of obtaining property on a forged instrument must stand aside from its related offences because the obtaining aggravates the forgery and uttering. For each of the six obtaining counts, (Counts 3,6,9,12,15 and 18) I sentence the accused to two years imprisonment, to be served concurrently with each other and concurrently with the other offences.
    
24. The total sentence therefore is one of two years.
    
25. The accused's powerful mitigation is in his favour. He has pleaded guilty to all counts, he has a record of good service both with the Police Force and in the Military services. He has a clear record. The amount defrauded is not high. It is but $1,207 and this sum has been paid into court by way of restitution.
    
26. The circumstances determine that this case is a suitable one where the sentence should be suspended and this I so order. The sentence of two years will be suspended for a period of three years.
    
27. Effect of a suspended sentence is explained.
    
28. The money paid in restitution is to be paid into the Fiji Government Consolidated Fund.
    

Paul K. Madigan
JUDGE

At Suva
3rd February 2012