State v Holmes [2023] FJHC 597; HAC083.2023 (18 August 2023)

[1] Isaiah Homes, you appear for sentence after pleading guilty to eight counts of counterfeiting currency notes and three counts of uttering counterfeit currency notes.

[2] At the time of the offending you were employed by Goodman Fielder International (Fiji) Pte Ltd as a Transport Officer.

[3] On 10 February 2023 at around 6.40 pm, when all the staff members had gone home, you used a genuine Fijian $100 denomination currency note to make nine copies of the same note using a Printer and Photocopy Machine of your employer. You took the printed copies of the note to your home in an envelope. Later that night, you assembled the notes by cutting the copies and gluing the front and back of the notes together. You then ironed the notes to make them thin so that they appear genuine.

[4] The next day you hosted a farewell dinner party at your home at Delainavesi for some of your work friends. After dinner, at around 11 pm, you left your home with your wife and friends for a nightclub in Suva. You took a cab from your home to Suva city. When you arrived at your destination, you gave a counterfeit note to one of your friends to pay for the taxi fare. The taxi driver thought the note was counterfeit and refused to accept it. Your friend then paid for the taxi fare using his own money.

[5] You went to a nightclub and gave a counterfeit note to one of your friends to buy alcohol for all of you. Your friends and wife did not know that the currency notes in your possession were fake. Your friend bought alcohol using the counterfeit currency note you gave him.

[6] On the second occasion, you gave another counterfeit note to another friend of yours and asked him to buy more alcohol for all of you. When your friend presented the note to the bartender, the bartender recognized the note was counterfeit and refused to accept it. Your friend came and returned the note to you. When your wife came to know the reason your friend returned the currency note to you, she admonished you and took the note from you. But you were determined to carry on with your criminal activity that night.

[7] At around 2 am, you went to another nightclub and gave a counterfeit note to one of your friends to buy alcohol. When your friend presented the note to the bartender, the bartender recognized the note was a counterfeit. She immediately alerted the security officer who then pulled your friend to a side and confronted him.

[8] The nightclub employees stopped you and your friends from leaving the club and reported the matter to police. While waiting for the police to arrive, you asked the nightclub staff to use the washroom. A male staff accompanied you to the washroom and when you came out, the staff went and checked inside the toilet. He found three counterfeit notes tucked in the back of the toilet cistern.

[9] You were arrested and taken to Totogo Police Station for questioning. Under caution you made full admission. Eight out of nine counterfeit currency notes were recovered by the police. One note was torn and discarded by you when you saw the note had not been glued properly.

[10] You are 29 years old and married. You are the youngest in the family of five siblings. You were born and raised in Lautoka by your mother, as your father was largely absent during the time you were growing up. Eventually your parents separated and got divorced.

[11] After completing high school you moved to Suva to purse tertiary studies. While studying engineering you work as an apprentice with United Boat Builders & Marine Works. In 2017, you graduated with a degree in Mechanical Engineering from the University of the South Pacific.

[12] In 2018, you started work at Goodman Fielder International Limited as a Management Trainee. Later, you were promoted and appointed a Cost Improvement Officer with the responsibility to manage staff in a cost effective manner while increasing profits for the employer. Later, you were holding the post of Transport Officer on a temporary basis until your employer found a replacement.

[13] In 2022, you married your current wife who continues to work for Goodman Fielder International Limited.

[14] After you were charged and released on bail, a Nadi based private renewal energy company employed you as a project manager for a short period of time until you joined a new company in Suva with an annual income of $35,000.00. Your pastor has provided a written character reference for you in which he has stated that you are dedicated to your work and your family.

[15] You seek clemency from the Court and not for a conviction to be recorded against you.

[16] Section 15 of the Sentencing and Penalties Act gives the court discretion to dismiss proceedings without recording a conviction. Section 16 of the Sentencing and Penalties Act sets out the factors that the court must consider when exercising that discretion.

[17] I am mindful that recording a conviction may result in you losing your employment and financial support, but the offence you committed is serious. In Fiji, the maximum penalty prescribed for counterfeiting currency note is life imprisonment, and for uttering or using counterfeit currency, the punishment is 5 years imprisonment.

[18] There was an element of planning involved, using your employer’s sophisticated machine to produce copies of $100 notes, discretely assembling the notes using glue and iron and then exposing your friends to criminal transactions by giving the fake notes to them to buy alcohol in nightclubs to avoid your own exposure. On one occasion alcohol was bought using a fake currency note. These are serious aggravating factors.

[19] I consider the following mitigates your offending. You entered an early guilty plea and saved court’s time and resources. You cooperated with the police and made full admission. You are genuinely remorseful. You had an unblemished character until this case.

[20] Although counterfeiting of currency is not prevalent in Fiji, the insidious nature of the offence requires a deterrent sentence.

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[21] In DPP v Rhodes & Others [1985] 82 FLR 117 the Court of Appeal of the State of Victoria, Australia said at p 123:

The community must protect its currency. Forgery of bank notes is by no means a prevalent offence..., but this state of affairs may not continue if the crime is not severely punished when it is committed. The need to deter others overshadows other considerations. The potential rewards for the counterfeiter are great and the potential damage to the community is even greater.

[22] In R v Howard (1986) 82 Cr App R 262 the English Court of Appeal held that counterfeit currency undermines the whole economy of the country and is likely to result in great loss being sustained by innocent people who find themselves in possession of currency only to discover that they are worthless.

[23] In R v Ali & Another [2008] Tonga LR 257 (26 September 2008) the Supreme Court of Tonga said at [4]:

Offences of this nature involving counterfeit note of the Realm are always regarded by the courts very seriously. Except in the most exceptional cases...a custodial sentence is called for in all cases involving the production or passing over of forged banknotes.

[24] Counsel for the State in her well researched sentencing submissions has formulated a table of cases from Fiji and the common law jurisdictions on the sentencing range for the counterfeit offences, which I reproduce below.

Case Name	Offence	Maximum Penalty	Starting point and/or Sentence
Jurisdiction: Fiji State v Chand 2011 FJHC, Criminal Case 45 of 2011, 12 September 2011	1 count of counterfeiting	Life imprisonment	• 4 years starting point was taken. • 12 months of imprisonment suspended for 2 years for both Juveniles. • The juveniles were to perform 50 hours of community work in Sigatoka District, supervised and instructed by the Welfare Office. At the end of the community work, a report was to be forwarded to the court. • The court had looked at the value of the counterfeit ($30), the counterfeit notes were amateurish, no aggravating factors, early guilty plea and they cooperated with the Police.
	1 count of uttering counterfeit notes	5 years imprisonment
Jurisdiction: Samoa Police v Collins (Samoa) [2011] WSSC, Supreme Court of Samoa 158, 14 November 2011	5 counts of making counterfeit currency	7 years imprisonment	3 years for each count to be served concurrently
	1 count of uttering counterfeit coin	6 months imprisonment	3 months imprisonment
Jurisdiction: Tonga R v Ali anor [2008] Tonga LR 257, 26 September 2008	Making counterfeit currency	10 years imprisonment	First accused - 2 years imprisonment (1 count). Second accused – 2 years imprisonment.
	2 counts of uttering counterfeit currency	5 years imprisonment	Second accused – 18 months imprisonment (served concurrently with count 1 and final 6 months of the sentence suspended for 2 years)
Jurisdiction: Vanuatu Public Prosecutor v Stefanson Stefan Atanasov [2010] VUSC 91, Supreme Court case 43 of 2010, 2 July 2010	1 count of counterfeit currency	15 years imprisonment	• The starting point taken was 3 years imprisonment. • 1 year was added for the aggravating factor – value of counterfeit notes were $2,300 USD. • 18 months imprisonment with another 12 months being suspended.
Jurisdiction: Australia Director of Public Prosecutions v Rhode and Others [1985] 17 A Criminal Appeal R 166	Forging Notes with Intent to Defraud	14 years imprisonment	• First respondent - 5 years imprisonment with 3 years being fixed as the minimum term before being eligible for parole. • Fourth respondent - 4 years imprisonment with a minimum term of 2 years.
Jurisdiction: United Kingdom R v Howard (1986) 82 Criminal Appeal R 262, CA	Custody of counterfeit currency and tendering one such counterfeit note	10 years imprisonment or fine or both	2 years imprisonment
Jurisdiction: Tonga Rex v Soane [2021] TOSC, Supreme Court of Tonga Case 188 of 2020, 1 April 2021	3 counts of uttering counterfeit currency	5 years imprisonment	8 months imprisonment for count 1; 12 months imprisonment for count 2; and 16 months imprisonment for count 3. All terms to be served concurrently. Final 4 months suspended for 12 months from release.

[25] Section 17 of the Sentencing and Penalties Act gives the court power to impose an aggregate sentence of imprisonment when an offender is convicted for more than one offence founded on the same facts. All eleven counts of counterfeiting and uttering are founded on the same facts.

[26] Had it not been for your mitigating factors, you would have been facing an aggregate sentence of about 3 years’ imprisonment.

[27] You are convicted (convictions recorded) and you are sentenced to an aggregate term of 18 months imprisonment. This is not an exceptional case to suspend sentence. However, I decided not to fix any non-parole period so that you can qualify for a full one third remission for good behavior in prison.

[28] The seized counterfeit notes are to be destroyed immediately and the genuine $100.00 note which was used to make the fake notes, being a tainted property, is forfeited to the State.

..............................................................
Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Director of Public Prosecutions for the State
John Rabuku Lawyers for the Accused

High Court of Fiji

State v Holmes [2023] FJHC 597; HAC083.2023 (18 August 2023)