State v Singh - Sentence [2015] FJHC 785; HAC250.2014 (19 October 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 250 OF 2014

STATE

V

SAVITA SINGH

Counsel : Mr R. Kumar for the State
Ms. A. Seruvatu for the Accused
Sentence : 19 October 2015

SENTENCE

[1] Ms.Savita Singh you are before this Court for sentence, after being convicted to the charge of money laundering.

[2] You were charged before this Court as follows;

Statement of Offence

MONEY LAUNDERING: Contrary to section 69(2)(a)and (3)(a) of the Proceeds of Crime Act 1997 as amended by Proceeds of Crime (Amendment) Act 7 of 2005 and Proceeds of Crime (Amendment) Decree 61 of 2012.

Particulars of Offence

SAKIUSA VAKAREWA, MUKESHWAR NARAYAN SINGH and SAVIT SINGH between the 1st day of February 2007 and the 31st March 2007, at Suva in the Central Division, engaged directly or indirectly in transactions involving $ 2400.00 that were the proceeds of crime knowing or ought to have reasonably known that the money is derived from some form of unlawful activity.

[3] On 20th May 2015, when the information was read over, you pleaded guilty to its second Count, where you were implicated. Subsequently upon your admission to summary of facts, you were convicted by this Court on 23rd September 2015.

[4] The admitted facts by you are as follows;

1. On 2011, Fiji Revenue and Customs Authority (FRCA) noticed anomalies in its database known as FITS. The anomaly was that there were 27 taxpayers using the same postal address which is P.O. Box 1671, Nabua. Due to this, FRCA conducted its investigations and discovered that fraudulent transactions had taken place and money had been paid out.
   
2. Mukeshwar Singh was married to you in 2008. Prior to marriage, you were in a relationship in or about 2004.
   
3. Sometimes between the 1st of February and 31st of March you negotiated a cheque number 187890 for the sum of $ 2400.
   
4. The cheque number 187890 was deposited by you in your ANZ bank account number 7150266.
   
5. Cheque number 187890 was issued by FRCA due to fraudulent tax return being lodged in your name. This tax return contained a false contractor slip.
   
6. As a result of fraudulent tax return, FRCA made cheque 187890 in your name. Therefore the cheque and, upon it being deposited in your account, the money were proceeds of a fraudulent tax return.
   
7. At the time of engaging in the above transaction you ought to have reasonably known that the cheque and the resultant money were from an unlawful activity based on the facts known to you that;
   
   1. The cheque you processed through your bank account was a FRCA cheque in your name,
      
   2. You were not registered as a tax payer at the time of offending; and
      
   100. You were not entitled to receive any monies or cheques from FRCA.
        
8. Upon encashment of cheque number 187890, the monies were withdrawn and used.
   

[5] The maximum penalty for money laundering is a fine of $ 120,000 and /or a term of imprisonment of 20 years. In State v Robin Shyam[2013] FJHC529 and State v Stephens [2012] FJHC 1010 the tariff for offence of money laundering was accepted as range of imprisonment between 5 years and 12 years.

[6] In State v Robin Shyam (supra) it was observed that "a sentence at the lower end ofthe band would be passed for unsophisticated domestic money laundering on a small scale with little benefit to the accused."

[7] Justice Suresh Chandra in Laisiasa Koroivuki v the State( Criminal Appeal AAU 0018 of 2010) has discussed the guiding principles for determining the starting point in sentencing, where his Lordship observed that;

"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 time. 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 either below or higher than the tariff, then the sentencing court should provide reasons why the see is outside the rang range".

[8] In view of the said Court of Appeal judgment and above cited observati State v Robin Shyam (supra), I commence your term of imprisonment at 6 yearsyears.

[9] You pleaded guilty to the charge on the 1st available opportunity, on the day your plea was to be recorded after the transfer of this case before this Court. The case against you is a fairly a straightforward case. However, in consideration this fact, you are given a concession of a waiver of 1/3 off your term of imprisonment. Now your sentence is 4 years.

[10] The aggravating factors are;

1. The proceeds of crime in relation to the offence committed are funds of a Government agency,
   
2. Your involvement in the commission of the offence is not limited to being a mere accessory to a grand scheme of fraud, but as an active participant at its several stages,
   
3. Your involvement in the fraud is spread over several years of activity.
   

[11] In considering the aggravating factors I add 3 years to your sentence. Now the sentence is 7 years of imprisonment.

[12] The mitigating factors are;

1. You are 32 years in age and is the mother to your husband's, Mukeshwar Narayan Singh, three year old daughter,
   
2. You are a first offender as conceded by the DPP and has previous good character,
   
3. You co-operated with the Police,
   
4. You paid back to the State the amount of money received as proceed of crime
   
5. You have apologised to Court and feels deeply remorseful of the act of offending
   
6. You promised not to reoffend and admits that you made a serious error, poor judgment, was "duped" by your husband and have acted on his influence,
   
7. You are presently employed as a teacher and wants to be role model to your students,
   
8. You provide financial assistance to your parents,
   

[13] I deduct three years from your term of imprisonment considering your mitigation. Now your sentence is 5 years of imprisonment.

[14] You made a strong case pleading for clemency of Court and also moved for consideration of imposition of a suspended term of imprisonment.

[15] In view of the provisions contained in section 26(2)(a) of the Sentencing and Penalties Decree 2009, this Court has no jurisdiction to suspend a term of imprisonment of less than three years.

[16] In compliance of the unreported judgment of the Court of Appeal in Tora v State Crim. App. No. AAU 0063/2011 of 27th February 2015, and section 18 (1) of the Sentencing and Penalties Decree, I impose 12 months of non- parole period.

Summary

[17] You are sentenced to 5 years of imprisonment. You will not be eligible for parole until you complete serving 12 months of your imprisonment.

[18] You have 30 days to appeal to the Court of Appeal.

Achala Wengappuli
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Alofa Seruvatu & Associates