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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION
CRIMINAL APPEAL CASE NO.: HAA 32 OF 2014
BETWEEN:
MAKERETA POLAUGA OFAKILEVUKA MALO
Appellant
AND:
STATE
Respondent
Counsels : Mr. E. Koroi for the Appellant
Ms. S. Kiran for the Respondent
Date of Hearing : 29 October 2014
Date of Judgment : 30 October 2014
JUDGMENT
FIRST COUNT
Statement of Offence
OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 of the Crimes Decree No. 44 of 2009.
Particulars of Offence
MAKERETA POLAUGA OFAKILEVUKA MALO on the 12/04/12 to 15/06/12 at Nadi in the Western Division by deception dishonestly obtained financial advantage of $1,280.00 from ATECA NARISIA.
SECOND COUNT
Statement of Offence
OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 of the Crimes Decree No. 44 of 2009.
Particulars of Offence
MAKERETA POLAUGA OFAKILEVUKA MALO on the 01/03/12 to 04/07/12 at Nadi in the Western Division by deception dishonestly obtained financial advantage of $1,095.00 from MIRIAMA MATI.
THIRD COUNT
Statement of Offence
OBTAINING PROPERTY BY DECEPTION: Contrary to Section 317 (1) of the Crimes Decree No. 44 of 2009.
Particulars of Offence
MAKERETA POLAUGA OFAKILEVUKA MALO on the 07th day of June, 2012, at Nadi in the Western Division by deception dishonestly obtain property namely Samsung Digital Camera valued $359.00, Akita 22 LCD Flat Screen valued $599.00 and LG DVD player valued $139.00, all to the total value of $1,097 the property of MIRIAMA MATI.
On the 15/08/12 at Namaka Police Station one Ateca Narisia (Witness-1) 31 years bar attendant of Legalega, Nadi and one Miriama Mati (Witness-2) 23 years house maid of Malawai, Nadi reported that one Makereta Polauga Ofakilevuka Malo (Acc) 25 years unemployed of Vatumami, Rakiraki by deception obtain money from them after promising them to arrange for their working visa and migration to the United Kingdom between April to July 2012. Also on the above date (Witness-2) reported that (Acc) also obtain property by deception from Courts Omega Namaka Branch after using her courts account number 080000118501 and fled with the high purchase property to Rakiraki without her concern.
Between the months of April to July 2012 (Acc) check in at the Kontiki Private Hotel Votualevu Nadi and was staying there for few months, that’s when she met with both (witness) who were both employed at the hotel. They start knowing each other when (Acc) mention to them that she’s legally married to one Royal British Air Force captain and she’s here in Fiji arranging for some Fijian to be recruited in the British Army and Overseas employers. Both witness said that they are interested in employment opportunity overseas so they gave their Passport, CV and documents to (Acc). (Acc) upon receiving the documents gave her BSP Bank account number : 8420392 to both witness and promise that she’s going to process their application and visa in Suva and for them to deposit the money for their visa application and other document fees.
(Witness-1) deposited a total of $1,280.00 into (Acc) account on different dates and bank branch and (Witness2-) deposited a total of $1,095.00 into (Acc) account on different dates and bank branch. (Acc) always contact both (witness) when she’s in Suva and demanded the cash to be deposited into his account as it’s urgent for the British High Commission for the final processing of their Visa. (Acc) after few days back at the Hotel and met both (witness) assure ring them that they would be flying out to England on August, 2012. Both (witness) also gave cash personally to (Acc) on several occasion at different places in Nadi.
(Acc) on 07/06/12 at Courts Omega Namaka personally produce (Witness-2)’s identity documents and mention that (Witness-2) was her cousin and working for Kontiki Hotel. She inform the staff of Courts Omega that (Witness-2) has given concern for her to apply for the purchasing of a Samsung Digital Camera value at $399.00, Akita 22 LCD flat screen value at $599.00 and LG DVD Player value at $139.00 on account number: 080000118501 and she would pay for the deposit. (Acc) after processing the property didn’t inform (Witness-2) and she took the items, fled with the items to Rakiraki.
Investigation into the above matter was carried out where by DC 3426 Inosi Ravouvou was appointed as Investigating Officer. Upon information received (Acc) was arrested from Rakiraki all the above property, items was recovered from (Acc) house at Vatumami. She was interviewed under caution and she admitted the facts and allegation stating that it was her intention to by deception to obtain money from both (Witness) and lied to them, she also mention that she has used up all the money on her personal expense. (Refer to question no. 88, 94, 95, 108, 122 and 127) of the interview notes. (Acc) was charge for two counts of obtaining financial advantage by deception and one count of obtaining property by deception. (Acc) has 5 previous convictions of the similar offence. (Acc) is appearing in police custody for court.
That the learned Magistrate erred in not considering the restitution mitigation made by the appellant where she had indicated to the Court that she was willing to make good the whole amount she had obtained by deception.
That the learned Magistrate erred in not considering a lesser imprisonment term under 2 years had the full restitution been considered along with other mitigating factors adduced by the appellant and which would have qualified her for a suspended sentence.
The learned Magistrate erred in predetermining the appellant’s sentence to be more than and above the 2 years qualification for a suspended sentence provided under Section 26 (1) & (2) of the Sentencing and Penalties Decree 2009.
The learned Magistrate erred in imposing a long non parole period of 15 months given the ignored full restitution and other mitigating factors.
In a nutshell, the learned Magistrate erred in fact and in law in imposing a harsh and excessive sentence.
“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 sub clauses 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.
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.
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.”
“The tariff under the Penal Code offence for obtaining money by deception was 18 months to three years (Arun v S#160; [2009] HAA] HAA 55 of 2008, Ateca v State&#/u> HAA 71 of 1 of 2002, Rukhmani v State <
Now that the ty unhe new Crimes Decs Decree has doubled, then obviously this tariff needs to be revisited. Thd. The tariff for obtaining a pecuniary adge byption should now now be bebe between 2 years and 5 years with 2 years being reserved for minor offences with little and spontaneous deception. The top end of the range will obviously be reserved for fraud of -the most serious kind where a premeditated and well planned cynical operation is put in place."
"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this stage. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls outside either below or higher than the tariff, then the sentencing Court should provide reasons why the sentence is outside the range."
First & Second Grounds in Written Submissions
"There are ample authorities supporting the proposition for custodial sentences on fraud and breach of trust offences. Custodial sentences are usually imposed in spite of the offender's good character. People of previously good character are often given positions of trust and responsibility in institutions and corporations. It is the betrayal of that trust that makes a custodial sentence inevitable except in the most exceptional cases where full restitution has been made. Non custodial sentences in those circumstances are not to be seen as offenders buying their way out of prison but as true remorse."
"We cannot understand how the learned Judge could have found that repayment after such a long failure to do so and then only after the Judge gave him the option to pay or go to jail could be considered any measure as true remorse. It appears to us to be a clear case of something Shameem J expressly excluded, namely a payment made by the appellant to buy his way out of prison.
The Judge's decision to allow the appellant time to pay was wrong and the manner in which it was stated was wrong. It could only have led the appellant to feel that an implicit bargain had been struck; i.e. fail to pay you will go to prison, pay and you will not.
Such implicit bargains were disapproved of by Salmon LJ in the case of Collins v R [1969] 53 Cr App R 385. That case had been adjourned and the accused bailed to allow him to assist the police locate stolen property; a course Salmon LJ described as not appropriate. He referred to the earlier case of West v R [1959] 43 Cr App R 109 in which Parker LCJ had pointed out that the court of appeal had disapproved of situations such as occurred in the case before us.
West's case was one of fraudulent conversion. The sentencing court had allowed an adjournment after the sentencing Judge had referred to the accused's ability to repay the sum taken and continued "I cannot order you to repay but I will postpone sentence if you are willing to promise me to come up for judgment in six months. Are you willing?" Parker LCJ commented:
"That is just what this court has said ought not to done. ... it is highly undesirable to postpone sentence and at the same time to turn the court into money-collecting agency."
Third Ground in the Written Submissions
Fourth Ground in the Written Submissions
Sudharshana De Silva
JUDGE
At Lautoka
30th October 2014
Solicitors: Koroi Law for the Appellant
Office of the Director of Public Prosecutions for Respondent
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