State v Miller [2014] FJHC 16; Criminal Appeal 29.2013 (31 January 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No. 29 of 2013

STATE
Appellant

v.

JOHN CUNNINGHAM MILLER
Respondent

BEFORE: THE HON. JUSTICE PAUL MADIGAN

Counsels: Ms. M. Fong for the State
Mr. D. Toganivalu for the Respondent.

Dates of hearing: 7, 31 October, 10 December 2013
Date of Judgment: 31 January 2014.

JUDGMENT
Obtaining by Deception

1. On the 12th July 2013 in the Magistrates Court at Suva, the Respondent ("R") was sentenced, on his own plea, for the following offences:

First Count

FORGERY: contrary to section 156(3) of the Crimes Decree no. 44 of 2009

Particulars of the Offence:

JOHN CUNNINGHAM MILLER between the 1stday of July 2011 and the 31stday of October 2011 in Suva in the Central Division, falsified the Payment Batch Summary Report belonging to Cake 2000 Limited, by copying and pasting the signatures of the Directors of Cake 2000 Limited to the said Report on five occasions, with intention to use it to dishonestly obtain the sum of F$7,943.27.

Second Count

USING FORGED DOCUMENT: contrary to Section 157(3) of the Crimes Decree 2009.

Particulars of the Offence

JOHN CUNNINGHAM MILLER, between the 1stday of July 2011 and 31stday of October 2011 in Suva in the Central Division, on five occasions, knew that the Payment Batch Summary Report belonging to Cake 2000 Limited, was a false document, and used it with intention of dishonestly obtaining the sum of F$7,943.27.

Third Count

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: contrary to section 318 of the Crimes Decree 2009

Particulars of the Offence

JOHN CUNNINGHAM MILLER, between the first day of April 2010 and the 31stday of October 2011 in Suva, in the Central Division, by a deception on seventy seven occasions, dishonestly obtained the sum of F$78,744.07 from Cakes 2000 Limited.

2. For these offences, the following sentences were passed on R.

Forgery: 12 months imprisonment

Using forged document: 12 months imprisonment, concurrent

Obtaining financial advantage by deception: unclear

But a total concurrent sentence of 16 months.

3. It is against the sentence for the third count (16 months for Obtaining by deception) that the State appeals on the basis that it is manifestly lenient in the circumstances.

4. The brief facts of the case were that R. was employed by Cakes 2000 from September 1995 until 17 October 2012 when these offences were detected. He was the Office Manager and was responsible for the payment of salaries to 14 staff. At the relevant times R altered salary records on 77 occasions and achieved this by forging the signatures of the Directors on payroll records. He used the stolen monies to fund his personal lifestyle.

5. It is most unfortunate that after dealing properly but leniently with the first two charges of Forgery and Using a Forged Document, the Learned Magistrate appears to have lost his way in dealing with the third count of Obtaining a Financial Advantage by Deception. He has in his sentencing remarks stated that the sentence he was passing for this offence was 22 months, but when summarising the sentences states that the sentence was 16 months. Earlier on he had taken a starting point of 30 months for the offence, but then fails to say how he arrived from there (30 months) to either 22 months or 16 months. This Court quashes the sentence passed for the offence below and would sentence him afresh, pursuant to section 256(2) of the Criminal Procedure Decree.

Obtaining by Deception

6. There are two deception offences in the Crimes Decree; obtaining property by deception (section 317) and obtaining a financial advantage by deception (section 318). The main section is 317 because there are numerous subclauses of explanation, and the section encompasses obtaining of choses-in-action as well as of tangible property. Obviously the section provides for the taking of monies and so it would have been a far more relevant offence in a situation such as in the present case. Obtaining a financial advantage (section 318) is more appropriate to situations such as securing scholarships by deception, securing a credit line by deception for example. It is not wrong for the charge to read financial advantage in this case, but it is not strictly correct. When an employee steals money from a bank account it is theft of a chose-in-action and it is obtaining property by deception contrary to 317(7) or sometimes 317(8) if the money is transferred to another.

7. The penalty for both offences is the same, that is ten years. Under the old Penal Code the maximum for the offence was a term of 5 years and the tariff was between 18 months to three years. As this Court stated in Atil Sharma HAC122.2010, given that the penalty has doubled, a new tariff should be set as being between 2 years and 5 years with the minimum being reserved for minor spontaneous cases with little deception.

8. From two years to five years then is the new tariff band for these two offences (financial advantage and property) and any well planned and sophisticated deception will attract the higher point of the band or even more if that court gives good reason. It will of course be a serious aggravating feature if the person being defrauded is unsophisticated, naive or in any other way socially disadvantaged.

9. The obtaining in this Cakes 2000 case was indeed sophisticated and practised on an employer who had put absolute trust in the accused over several years. He forged signatures on a payroll document and inflated sums payable to fellow employees so that he could obtain the differences for himself. He applied this sophisticated method on over 70 occasions.

10. I agree with the State that such an operation was serious and should have attracted a sentence in the upper part of the band. It is a pity that the Magistrate's attention was not drawn to the dicta in AtilSharma(supra).

11. For this third offence of obtaining a financial advantage by deception, I take a starting point of 3.5 years(42 months) imprisonment. That rather high starting point subsumes the aggravating features for which the Magistrate enhanced his indeterminate sentence. Credit of course must be given for the guilty plea and I deduct a full third (14 months) to reflect that. The sentence for the obtaining by deception now stands at 28 months which is a term that the Respondent must serve concurrently with his 12 months for Forgery and concurrent 12 months for using a forged document.

12. Although the three offences are all committed as part of the same transaction, the obtaining by deception is far more serious in that it is a fraud committed by an employee in breach of trust on his employer of many years. It involves sophisticated and cynical planning. For that reason the penalty must be higher than those for the forgery or the using the forged document, even though the penalties stipulated in the legislation are the same.

13. The new sentences are now:

Forgery: 12 months imprisonment

Using a forged document: 12 months imprisonment

Obtaining a financial advantage by deception: 28 months imprisonment.

14. All terms to be served concurrently and are to run from 12th July, 2013.

15. To that extent the State's appeal succeeds.

P.K. Madigan
Judge

31 January 2014