Shabrina v State [2019] FJHC 788; HAA09.2019 (2 August 2019)

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO: HAA 09 OF 2019

(Labasa Criminal Case No. 388/12)

BETWEEN : SHAHEENA SHABRINA

Appellant

AND : STATE

Respondent

Counsel : Mr. A, Sen for Appellant

Ms. A. Vavadakua for the Respondent

Dates of Hearing : 31 July 2019

Date of Judgment : 2 August 2019

JUDGMENT

1. The Appellant was charged with four others with Theft contrary to Section 291 of the Crimes Act 2009. On 18th October, 2018, the Appellant was convicted by the Learned Magistrate of Labasa.
   
2. On 13th May 2019, the Appellant was sentenced to a term of 24 months imprisonment and 15 months of that sentence was to be served in prison and the remaining period of 9 months was suspended for 2 years.
   

3. The information on which the Appellant was charged is as follows:-

Statement of Offence

Theft: Contrary to Section 291 of the Crimes Decree 2009.

Particulars of Offence

ARCHANA INDRANI MURTI, ANJINI DEVI MANDRI, SHAHEEN SHABINA, SHAVIN MAHARAJ and VANE TIKOKA BERA between 1^st day of October 2010 and 1^st day of June 2011 at Labasa in the Northern Division being the employees of Westpac Bank Labasa branch and within capacity of their employment stole $182, 862.45 in cash, the property of Westpac Bank.

Grounds of Appeal

4. Being dissatisfied with the said judgment and the sentence, the Appellant filed his petition of appeal within time with following grounds.
   
   1. That the Learned Magistrate erred in law in convicting the appellant for theft on the basis that a correct procedure was not followed, when such withdrawals were approved by her immediate supervisor and when there was no intention to permanently deprive the Westpac Bank.
      
   2. The Learned Magistrate did not properly analyse the evidence as to how the law was applicable to the facts in determining the guilt or innocence of the appellant.
      
   3. That the Learned Magistrate failed to correctly apply the principles of sentencing and failed to consider the relevant authorities submitted.
      
   4. The Learned Magistrate erred in law in failing to allow the appellant to call character witnesses.
      
   5. The Learned Magistrate erred in law in holding that the appellant had the intention to permanently deprive the Bank when upon request full overdraft was created as a result of overdraft from their respective accounts.
      
   6. That the Learned Magistrate erred in failing to suspend the sentence as there were strong mitigating factors.
      
   7. That the Learned Magistrate erred in failing to take into consideration the mitigating factors namely the accused was a first offender and had three young children and also failed to consider the good behaviour of the appellant.
      
5. In the written submission filled, the Learned Counsel for Appellant had challenged the legality of the charge although no ground for that respect was incorporated in the Petition of Appeal. At the hearing, the Leaned Counsel for Appellant informed the Court that the Appellant would not challenge the legality of the charge. Gracious
   

Facts

6. The Appellant and the other accused were employed at the Westpac Bank (the Bank), Labasa Branch, when the alleged theft took place. The Appellant had been working for the bank since 26th May, 2005 and was a Commercial Teller during the material time. The 1st accused was the Customer Relations Manageress who supervised the Appellant and the other accused.
   
7. Upon an audit conducted on some suspicious transactions, it was revealed that the Appellant had obtained money from the bank by putting withdrawal slips in the till when there was no sufficient funds in her bank account. When this was revealed, the Appellant at an internal investigation admitted that she took $ 39,124 on several occasions knowing that she did not have sufficient funds in her bank account. She took up the position that she was borrowing from the bank (on an overdraft) with the approval of the 1st accused who was the Customer Relations Manager. On the strength of the findings of the audit, the Appellant and the other accused were dismissed from the bank immediately. Upon the termination of her service, the Appellant repaid in full the money she had taken from the bank. At the caution interview, the Appellant admitted taking money from the bank in breach of the established procedure. She advanced the same defence she had taken up at the internal investigation and denied being dishonest. The contents of the Record of Caution Interview was not contested and the same was admitted into evidence at the trial.
   

Analysis

Appeal against Conviction

8. It appears that two appeal grounds are fused together in Ground 1. From the written submission and what the Counsel for Appellant submitted at the appeal hearing, it became apparent that the phrase ‘a correct procedure was not followed’ refers to the Learned Magistrate’s failure at the close of the Prosecution’s case to follow Section 179 (1) of the Criminal Procedure Act. The Section states :
   

179 (1) At the close of the evidence in support of the charge, if it appears to the court that a case is made out against the accused person sufficiently to require the making of a defence, the court shall —

(a) again explain the substance of the charge to the accused; and

(b) inform the accused of the right to —

(i) give evidence on oath from the witness box, and that, if evidence is given, the accused will be liable to cross-examination; or

(ii) make a statement to the court that is not on oath; and

(c) ask the accused whether he or she has any witnesses to examine or other evidence to adduce in his or her defence; and

(d) the court shall then hear the accused and his witnesses, and other evidence (if any).

9. The section stipulates a mandatory requirement that, if it appears to the court that a case is made out against the accused, these rights must be accorded to an accused at the end of the prosecution’s case,
   
10. On the face of the Record, there is no mention that those rights were accorded to the Appellant at the end of the Prosecution’s case. At the conclusion of the evidence of 1st and the 2nd accused the Appellant had opted to remain silent. The 4th accused had then presented her evidence.
    
11. Ms Vavadakua, the Counsel for Respondent asserts that, although not recorded by the Learned Magistrate, those rights were duly accorded to the Appellant at the relevant time. Ms Vavadakua was the prosecutor who conducted the trial at the Magistrates Court. What she claims from her personal knowledge can be relied upon because the 1st, 2nd and the 4th accused had elected to give evidence under oath. After listening to the evidence of the 1st and the 2nd accused and after watching the way they had exercised their rights in defence, the Appellant, as an educated banker, could have realised even without the assistance of a legal counsel that she too was entitled to the same rights exercised by her colleagues.
    
12. In this case, the Appellant was in fact represented by a counsel who was conversant with the procedure and the rights attached to an accused. The Appellant had exercised her right to remain silent apparently on the instructions of her counsel. Even if I were to assume that those rights were not properly explained by the Learned Magistrate, the Appellant was not prejudiced at the trial because she was represented by a counsel.
    
13. In the latter part of Appeal Ground No.1, the Appellant contends that the Learned Magistrate erred in law in convicting the Appellant for theft when withdrawals were approved by her immediate supervisor and when there was no intention to permanently deprive the Westpac Bank.
    
14. The Appellant had started her career at the bank way back in 2005. During her long tenure in office, she no doubt had acquired a sound knowledge about the banking practices and the procedure to be followed in disbursement of loans and overdrafts. The Appellant in her caution interview admitted that the procedure she followed to obtain the money was wrong.
    
15. Although the Appellant in her caution interview said that she had the approval of the manager, the 1st accused (the Customer Relations Manager) under cross-examination denied that she had given such an approval. The Appellant’s claim remained an unsworn statement not tested in cross-examination. Even if this claim were accepted, the Appellant knew that the money did not belong to the manager and that the correct procedure was not followed in granting the approval.
    
16. The Appellant in her caution interview admitted that the withdrawal slips were not duly filled and that the withdrawals were not duly posted or processed in the system. PW.1 who was the Head Teller testified that if a withdrawal slip was incomplete, the manager (the 1st accused) had no authority to release cash. The Appellant was also a Teller and she knew that the procedure was wrong.
    
17. Section 293 (1) of the Crimes Act states that any assumption of the rights of an owner to ownership, possession or control of property, without the consent of the person to whom it belongs, amounts to an appropriation of the property. The Appellant knew that the money belonged to the bank. She, as an experienced banker, must have known that the Manager was entitled to operate only within the framework of established banking rules / procedure and that the manager had no authority to approve transactions in contravention of the accepted procedure.The Appellant had made several withdrawals by following the same irregular procedure over a period of 7 months and not a single dollar had been repaid to the bank until she was sacked after the internal investigation.
    
18. The Learned Magistrate had ample evidence to find that the Appellant had made unauthorised withdrawals with the intention of permanently depriving the Westpac Bank of the money she had withdrawn. This ground is not meritorious and it must fail.
    
19. The Appellant in Ground 2 contends that the Learned Magistrate did not properly analyse the evidence as to how the law was applicable to the facts in determining the guilt or innocence of the Appellant.
    
20. According to Section 291 of the Crimes Act, the main elements of the offence of Theft are that

i. The accused

ii. Dishonestly appropriates,

iii. Property belonging to another,

iv. With the intention of permanently depriving the other of the property.

21. There was no dispute that the Appellant is the 3rd accused in this case. The Appellant in her caution interview admits that the money she obtained belonged to the bank. The only dispute is with regards to the 2nd and 4th elements of the offence of Theft.
    
22. In the preceding paragraphs I have already dealt with the 4th element.
    

23. Section 290 of the Crimes Act defines the term ‘dishonest’ as follows:

(a) dishonest according to the standards of ordinary people; and

(b) known by the defendant to be dishonest according to the standards of ordinary people.

24. The test is clearly an objective one. The fact finder must find the accused dishonest according to the standards of ordinary people and also that the accused knew that his or her act/omission to be dishonest according to the standards of ordinary people.
    
25. PW 1 (the Head Teller) testified that the withdrawal slips had been filled and the moneys obtained. She also said that an overdraft facility had not been properly approved in favour of the Appellant at the time she withdrew money from her account. Incomplete withdrawal slips had been found in the cash till to account for the shortage of cash. The Appellant in her caution interview admitted that she knew that there was no sufficient money in her bank account when she withdrew the money and that is why the Teller did not process the transactions. She admitted that the withdrawal slips were not stamped and initialed by the Teller. She admitted that she filled the withdrawal slips because she was in need of money. She admitted that as a bank officer she did not follow the proper procedure.
    
26. In view of the evidence led in trial, it is open for the Learned Magistrate, by applying the above mentioned two fold test of dishonesty, to find the Appellant to be dishonest.
    
27. In appeal ground (v) the Appellant contends that the Learned Magistrate erred in law in holding that the Appellant had the intention to permanently deprive the Bank when upon request full overdraft was created as a result of overdraft from their respective accounts.
    
28. The Learned Magistrate at paragraph 20 of the judgment rejected the explanation of the Appellant that she had an overdraft facility. He had given reasons as to why he disbelieved the Appellant. The Appellant admitted in her caution interview that the withdrawal slips were not processed because she did not have sufficient money in her bank account. She failed to explain why the withdrawal slips were incomplete and not posted in the system if an overdraft had been created in her favour.
    
29. The Learned Magistrate quoted Section 292 (3) of the Crimes Act in his judgment which stipulates that a person’s appropriation of property belonging to another may be dishonest even if the person or another person is willing to pay for the property. Although the Appellant had repaid the money in full after she was sacked, that gesture would not make her an innocent person.
    
30. From paragraphs 20 to 26 of the judgment, the Learned Magistrate having analysed the evidence found that the Appellant and the other accused had been dishonest in appropriating the money belonging to the bank and in so doing they had the intention to deprive the bank of the money withdrawn.
    
31. The counsel for Appellant referring to paragraph 19 of the judgment argues that the Learned Magistrate shifted the burden on the Appellant to prove her innocence. I reproduce below the paragraph 19.
    

“While giving his evidence, PW 03 admitted that he did not follow the correct procedure and he tried to pass the liability to the 1^st accused Archana Murti. He said that he obtained money according to the 1^st accused’s instructions. But he couldn’t prove his version. On the other hand, PW03 admitted that he signed the withdrawal slips but not able to prove that the 1^st accused used to sign his withdrawal slips. Being a teller, he placed withdrawal slips in his till and obtained cash. He was aware that there were insufficient money in his account to withdraw.”

32. It is obvious that the Appellant who was the 3^rd accused in this case opted to remain silent. She opted to exercise this right at the conclusion of evidence of the 1^st and the 2^nd accused. From the context of the said paragraph, it can be gathered that the Learned Magistrate was referring to evidence of Shavin Maharaj who was the 4^th accused in this case. It should clearly be a typing mistake when the paragraph 19 referred to PW3 instead of DW 3.
    
33. The Learned Magistrate has correctly analysed the evidence and applied it to the law. He has given reasons for his decision. There is no error in his judgment. The Grounds (ii) and (v) must fail.
    

Appeal against Sentence

34. It is well established law that, before this Court can disturb the sentence, the Appellant must demonstrate that the court below fell into error in exercising its sentencing discretion. If the trial judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some relevant consideration, then the Appellate Court may impose a different sentence. This error may be apparent from the reasons for sentence or it may be inferred from the length of the sentence itself (Bae v State [1999] FJCA 21; AAU0015u.98s (26 February 1999; House v The King [1936] HCA 40; (1936) 55 CLR 499).
    
35. The Appellant contends that the Learned Magistrate failed to correctly apply the principles of sentencing and failed to consider the relevant authorities submitted. This appeal ground does not specify the principles the Learned Magistrate had failed to apply. I assume that those principles are expressed in the authorities cited by the Counsel for Appellant. Therefore I perused the cited authorities to see what those principles are.
    
36. In Singh v State [2000] FJHC 172; Criminal Appeal 46 of 2000 (21 July 2000) the High Court on appeal set aside the sentence of two years’ imprisonment and substitute with one of 18 months’ imprisonment suspended for 2 years. The sentencing principles applied in that case are not relevant to the present case. In that case, the Appellant was convicted on an unequivocal plea of guilty. The Court found that it was not a breach of trust case but a straight out larceny case, and therefore the principles set out in Barrick (1985) 91 Cr. App. R. 78, a case which set down sentencing guidelines in fraud cases, did not apply. The State had conceded that the sentence was excessive in all the circumstances of the case. Furthermore the Court was in dilemma whether to send the Appellant who was on bail pending appeal and was suffering from a mental condition ( at the time of the appeal hearing) again to prison.
    
37. In State v Prasad [2003] FJHC 320; HAC0009T.2002S (30 October 2003), the accused was convicted on his own plea of guilty to 12 counts of Larceny by Servant contrary to section 274(a)(i) of the Penal Code, Cap. 17 and was sentenced on each of the 12 counts to a term of 2 years imprisonment concurrent to each other, each term being suspended for a period of 3 years. In that case Gates J having extensively cited Barrick (supra) took the view that, given the exceptional circumstances present in favour of the accused, it was a fit case to suspend the sentence of imprisonment although it was a breach of trust case.
    
38. In Prasad (supra), there were several significant mitigating factors. The accused’s comparative youth, (25 at that time), his previous good character and clean police record, the fact that he was pursuing University studies with a third of his degree still to be completed; he had pleaded guilty, and he had made a complete reparation to the employer for the monies taken, and had "lost everything" in making such compensation. He was fairly lowly in the hierarchy and supposedly under the influence of a superior. Importantly his employers spoke on his behalf and spoke of what they saw as his genuine repentance; his doctor said he had been an asthmatic for 20 years.
    
39. The court found that the accused had already volunteered, without pressure, a full restoration of the complainant employer’s loss. This compensation was paid months in advance of the sentencing process. The employer was well satisfied by this reparation and testified in court to the genuineness of the remorse shown by the accused. In these circumstances, the court was satisfied that the remorse was demonstrated to be genuine both to the complainant and to the court, with full and early reparation made without the need for a court to make a compensation order.
    
40. In the instant case, the accused admitted her wrongdoing only when she was found to be at fault at the internal investigation. The restitution was not immediate. She repaid the money only after she was sacked. She maintained her innocence until she was convicted. She was blaming the manager for wrongful approval of her payments when she knew the procedure was wrong. There was no evidence of genuine remoras in her conduct.
    
41. Section 4(2)(g) of the Sentencing and Penalties Act provides that, in sentencing offenders, a court must have regard to the conduct of the offender during the trial as an indication of remorse or the lack of remorse. Early guilty pleas, confessions, cooperation with police to conduct the investigation and restitution to the victim may be considered as evidence of such remorse. In Prasad (supra) the Court held that ‘...where the remorse was demonstrated to be genuine both to the complainant and to the court’. In the present case, unlike in Prasad, the complainant was not fully satisfied that the Appellant was genuinely remorseful although the full restitution was made.
    
42. The courts are generally concerned with the issue whether remorse is ‘true’ or “genuine”. In State v Deo [2005] FJHC 64; HAA0008J.2005S (23 March 2005), Shameem J defined what might constitute a genuine remorse.
    

“The issue is not just restitution. The issue is true and sincere remorse, an early guilty plea and confession, and restitution to the victim as evidence of such remorse and apology.”

43. Therefore, restitution may not be regarded as evidence of remorse if the court feels that it was not true or genuine.
    
44. The Supreme Court in Aitcheson v State [2018] FJSC 29; CAV0012.2018 (2 November 2018) appears to have taken the view that the notion of genuine remorse is best assessed subjectively by the trial judge who is in a much stronger position to assess remorse and whether it is sincere and acceptable.
    
45. In Prasad, Barrick was cited extensively by Gates J. The court referred to the following determinative factors to which a sentencing court should have regard [27]:
    

"(i) the quality and degree of trust reposed in the offender including his rank; (ii) the period over which the fraud or the thefts have been perpetrated; (iii) the use to which the money or property dishonestly taken was put; (iv) the effect upon the victim; (v) the impact of the offences on the public and public confidence; (vi) the effect on fellow-employees or partners; (vii) the effect on the offender himself; (viii) his own history; (ix) those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police."

46. The Appellant as a bank teller was in a higher position of trust. The offending was long lasting over a period of more than 7 months. The Appellant failed to disclose to police how she disposed of the money dishonestly taken. The impact of the offences on the public and public confidence and the effect on the fellow employees were great.
    
47. In State v Roberts [2004] FJHC 51; HAA0053J.2003S (30 January 2004), the accused, a loans officer at the Colonial National Bank, pleaded guilty to four counts of Larceny by Servant. The Learned Magistrate referred to the case of Barrick (supra) and imposed a sentence of 18 month term suspended for three years. The State appealed. They argued that although an 18 month term of imprisonment was unexceptionable in a case of serious fraud, the suspension of that sentence was wrong in principle.
    
48. After considering Panniker, [2000] FJHC 156 (where sentence was reduced on account of the restitution of $10,000 to one of 3 years imprisonment), Vishwajit Prasad v. State Crim. App. No. 23 of 1993 (4 years reduced to 2½ years) in which almost half of the amount stolen was paid back before the hearing, and State v. Helen Broadbridge Crim. Case No. 31 of 1997 (2½ years imprisonment for the theft of $24,147.55), Shameem J affirmed the suspended sentence imposed by the court below. Her Ladyship observed:
    

“The principles that emerge from these cases are that a custodial sentence is inevitable where the accused pleads not guilty and makes no attempt at genuine restitution. Where there is a plea of guilty, a custodial sentence may still be inevitable where there is a bad breach of trust, the money stolen is high in value and the accused shows no remorse or attempt at reparation.

However, where the accused is a first offender, pleads guilty and has made full reparation in advance of the sentencing hearing (thus showing genuine remorse rather than a calculated attempt to escape a custodial sentence) a suspended sentence may not be wrong in principle. Much depends on the personal circumstances of the offender, and the attitude of the victim.”

49. In that case, the respondent had made attempts at restitution even before the bank discovered the theft. This was highly significant. Further full restitution took place, not because of the prosecution, but because his pastor counselled him and was able to persuade him to be responsible and accountable for his actions. In making restitution, the respondent was not buying himself out of trouble. The court found his remorse to be clearly genuine.
    
50. In the present case, the Appellant pleaded not guilty and maintained her innocence until she was found guilty by court. The reparation was done after she was dismissed from service to avoid her being prosecuted and therefore not genuine. The complainant had not accepted that she was genuinely remorseful and there was no evidence of reconciliation. This is also a gross breach of trust case in a bank.
    
51. The facts transpired at trial reveal a classic case of breach of trust by the Appellant. She was in a position of trust when dealing with the money of the bank in her capacity as a Teller. She was not supposed to take out money form the till by simply putting withdrawal slips on the pretext that the approval was given by the manager and appropriate the money for her personal use. The trust was owed to the bank and not to the manager. As a banker, she was also in a position of trust vis-a-vis the customers whose money she was dealing with.
    
52. Examination of case authorities reveals that in breach of&trust cases ases involving dishonest employees, suspension of sentence is only appropriate if there are exceptional mstanThe Court of Appeal in Deo&# State Cr App No AAU00AAU0025.2025.2005S; 11 November 2005 at [26, 27]: said

“During the course of the appeal, we have been referred to a number of cases of similar breaches of trust in the Fiji courts. In a surprising number, suspended sentences have been imposed. They have caused us some disquiet.

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”

53. In State v Cakau Cr. App. No. HAA 125 of 2004S; 10 November 2004, the offender who was a military officer stole $23,817.56 from the Fiji Military Forces after falsifying the accounts. He pleaded guiltyhe ch and was handed aded a suspended sentence in the Magistratetrates' Court. On appeal by the State, the High Court quashed the suspended sentence and imposed a custodial sentence of 18 months' imprisonment. In that case, Shameem J said at p.5:
    

“There is ample authority supporting the imposition of custodial sentences for serious fraud and breach of&trust offencffences. Indeed custodial sentences are usually imposed despite the offender's good characte character is inevitably the condition precedent for breach of 
us;trust cas0;cases, because only people of previ good charact aare given positions of trust and rand responsib in instiinstitutions and corporat It i betrof that&# that renders serious fous frus fraud offences the worst type of offendffending in property-related cases. It is for teasont a cial senl sentencetence is inevitable except in those exceptional cases where full restitutiitution has been effected, not to buy the offender's way out of prison, but as a measure of true remorse”.

54. Similarly, it was said in Barru> 81 Cr81 Cr. App. R(S):

The type of case with which we are concerned is where a person in a position of&#rust has used his trusted position to defraud his partners or employers. He will usualusually, as in this case, be a person of hitherto impeccable good character. Itracticallically certain, again as in this case that he will never offend again and in his life be able to secure similar employment with all that means in the shape of disgrace for himself and hardship for himself and also his family.

[19] And later at pp 81-82:

In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small. Despite the great punishment that offenders of this sort bring upon themselves, the court should nevertheless pass a sufficient substantial term of imprisonment to mark publicly gravity of the offence. (Emphasis added)

55. In Khan v State [2016] FJHC 953; HAA24.2016 (24 October 2016) the court held:
    

“Case authorities in Fiji do not recommend imposing a suspended sentence where there is a breach of trust situation; a degree of preplanning, no restitution had been done and no genuine remorse is manifested even though the convict is a first offender.

Therefore, learned Magistrate’s decision to impose an immediate custodial sentence is not obnoxious to the provisions of the Sentencing and Penalties Decree or sentencing guidelines entrenched in our legal system. Therefore, any kind of interference with the sentence imposed by the learned Magistrate is not warranted in this case”

56. For these reasons the Appeal Ground (iii) must fail.
    
57. Appeal Ground (iv) contends that the Learned Magistrate erred in law in failing to allow the Appellant to call character witnesses.
    
58. It appears that the Judgment was entered on the 18^th of October 2018 by the Resident Magistrate Mr.Thennakoon. The Appellant had filed mitigation on the 27^th of November 2018. The Sentence was not passed until 13^th May 2019. After several adjournments, on the date the Sentence was to be passed, the Appellant had informed court through her new counsel that she wanted to call character witnesses. The court noted that there was already a considerable delay in the matter and refused to grant a further adjournment. The sentence was passed by Resident Magistrate Mrs. Levaci on the 13^th May 2019 as scheduled.
59. The court had given sufficient time, nearly 6 months, to the Appellant to add further mitigation. Even if the character witnesses were allowed to be called, no or very little weight would have been given to the previous good character in view that the Appellant was at a breach of trust. I have already cited series of case authorities that held that previous good character is not a compelmitigation fion factor in breach;of trust c160;cases.
60. The Counsel for Appellantis suion hised concern that the sentence was prepared and pand pronounced by a magistrate other than than the mthe magistrate who had tried the matter. I concede that the trial magistrate is best positioned to assess the conduct of the accused in deciding the genuineness or otherwise of remorse (See: Aitcheson v State) and the gamut of the overall sentence. However, in this jurisdiction the law does not recognise this aspect of the distinction between the trial judge and the sentencer when it comes to sentencing. The good example is Section 190 (3) of the Criminal Procedure Act, where the High Court is vested with the jurisdiction to sentence a person convicted by a magistrate. According to this section, the High Court, after inquiring into the circumstances of the case, is vested with the jurisdiction to deal with the person convicted in any manner in which the person could be dealt with if the person had been convicted by the High Court.
61. In Nadan v State [2019] FJCA 29; AAU0146.2015 (7 March 2019) the Court of Appeal has interpreted this section. In its majority decision the court held that the phrase ‘enquire into the circumstances of the case’ encompasses an inquiry or examination essential to the matter of sentence on the accused brought before the High Court upon a conviction in the Magistrates Court.
    
62. In view of the above, I do not see any violation of a principle in sentencing when Resident Magistrate Mrs. Levaci sentenced the Appellant who was tried and convicted by Resident Magistrate Mr. Thennakoon because Mrs. Levaci in her Sentencing Ruling had enquired into the circumstances of the case essential to the matter of sentence. Therefore there is no basis for this concern.
    
63. In Appeal Ground (vii), the Appellant contends that the Learned Magistrate erred in failing to take into consideration the mitigating factors namely the accused was a first offender and had three young children and also failed to consider the good behaviour of the Appellant. At pargraph 8 of the Sentencing Ruling the Learned Magistarte has taken into consideration all the mitigating factors highlighted in this appeal ground. Therefore this ground should also be dismissed.
    
64. The tariff for theft is 4 months to 3 years imprisonment (Waqa v State; HAA 17 of 2015). The Learned Sentencing Magistrate had identified the tariff in Ratusili v State [2012] FJHC 1249; HAA011.2012 (1 August 2012). Even according to Ratusili (supra), the tariff set between 2- 9 months is applicable only to first offenders in simple theft cases. It clearly states that thefts of large sums of money and thefts in breach of trust, whether first offence or not can attract sentences of up to three years; that regard should be had to the nature of the relationship between offender and victim; that planned thefts should attract greater sentences than opportunistic thefts; that although the higher tariff is apposite for breach of trust thefts of large amounts of money, thefts of sums of money from an employer by way of fraud come within the Barrick 81 CrApp R(S) 78 guidelines, as developed by this Court in Anand Kumar Prasad and others [2011] FJHC 218.
    
65. The Appellant received a Sentence of 24 months imprisonment, 15 months to be served and 9 months is suspended for 2 years, for stealing approximately $39,124.00 from her employer, the Westpac Bank. The Appellant was fortunate to have her sentence partially suspended considering that the Learned Sentencing Magistrate never added as an aggravating factor the fact that the Appellant was stealing money for a period of time until she was caught.
    
66. There is no basis for the grounds raised by the Appellant against her sentence.
    

Following Orders are made:

1. Appeal against conviction is dismissed.
2. Appeal against sentence is dismissed.
3. The conviction recorded and the sentence imposed by the Magistrates Court at Labasa are affirmed.
   

Aruna Aluthge
Judge

At Suva

2^nd August, 2019

Solicitors:

Maqbool & Co. for the Appellant

Office of the Director of Public Prosecutions for the Respondent