State v Tokona [2000] FJLawRp 43; [2000] 1 FLR 155 (28 July 2000)

[2000] 1 FLR 155

IN THE HIGH COURT OF FIJI

STATE

v

JOSEPH TOKONA

High Court Criminal Appellate Jurisdiction
Pathik, J
28 July, 2000
HAA 14/00 (on appeal from MC Crm Case 2359/99S)

Larceny by servant - appeal against leniency of sentence - Penal Code s274

The respondent, a clerk at the Asset Management Bank, stole various sums of money to an approximate total of $8,908.41. He pleaded guilty and was sentenced to 12 months imprisonment on each count, suspended for 2 years. He was a first offender and had repaid the amount back to the Bank.

Held - in sentencing for breach of trust cases, such as this, the court should have regard to:

(i) the quality and degree of trust reposed in the offender including his ranks;

(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;

(x) any help given by him to the police.

appl R v Barrick 81 Cr. App. R. (S) 78

(2) A custodial sentence is not always the norm in breach of trust cases and a suspended sentence may be considered depending on the particular facts and circumstances of each case.

Sentence was appropriate and not wrong in principle nor lenient.

Cases referred to in judgment
appl R v Barrick 81 Cr. App. R. (S) 78
ref Shane Raymond Heatley v State HAA 0003/95
foll Vishwajit Prasad v State AAU 23/93

Aiyaz Sayed-Khaiyum for the appellant
Graham Leung with Shayne Sorby for the respondent

28 July 2000.

JUDGMENT

Pathik, J

In the Magistrate's Court at Suva the respondent was on his own plea on 23 November 1999 convicted on 14 counts of larceny by servant and on 29 November 1999 sentenced to 12 months' imprisonment on each count suspended for 2 years from the date of sentence.

Facts

The facts are that between 23 November 1999 to 19 February 1999 the respondent being employed as a clerk at the Asset Management Bank stole various sums of money to an approximate total of $8908.41, the property of the said Bank.

The Bank has been paid the amount involved. The respondent is a first offender and is 31 years of age. He is married with two children.

Grounds of appeal

The State has appealed against leniency of sentence on the ground that the sentences imposed by the Learned trial Magistrate are "manifestly lenient given in particular the principle enunciated in R v Barrick 81 Cr. App. R. (S) 78, Shane Raymond Heatley v State Criminal Appeal No. HAA0003 of 1995".

Appellant's submission

The learned counsel for the appellant submitted that there was a breach of trust on the part of the respondent. He said that in the light of the authorities, (Barrick, supra) to which he made reference, the respondent received a lenient sentence. He should have been given a custodial sentence. He agreed though that there are mitigating factors which worked in favour of the respondent such as plea of guilty, first offender and repayment of the full amount involved.

Counsel referred to a number of cases where immediate custodial sentences of varying terms have been given.

Respondent's counsel's submission

The learned counsel for the respondent submitted that the learned Magistrate was not wrong in imposing the sentence which he did and applied proper legal principles of sentencing. He said that Barrick (supra p81-82) talks of, inter alia, general principles where it is stated that "in general a term of immediate imprisonment was inevitable, save in very exceptional circumstances or where the amount of money obtained was small". He said that the appellate Court would be loath to interfere with sentence unless the lower Court passed a sentence which is wrong in principle.

Counsel referred the Court to a number of authorities pointing out that no two cases are alike and that a suspended sentence would be imposed in an appropriate case. He said that it is the consistency of approach that matters and not uniformity of sentence.

Mr. Leung said that the respondent is 30 years of age and has hitherto had an unblemished record. There are other mitigating factors. Since sentence 7 months have already expired and it would be wrong now for him to be given a custodial sentence. Counsel submits that the Court allow the suspended sentence to remain and that the appeal be dismissed.

Consideration of the appeal

In this appeal the State says that the suspended sentence imposed on the respondent was lenient mainly because for breach of trust cases and the like, in line with authorities like Barrick (supra) nothing short of an immediate custodial sentence should have been given in this case.

With due respect this view is a clear misunderstanding of the principles of sentencing. Barrick does not say that in every such case the form of sentence as suggested by counsel should be given. The Court's discretionary powers cannot be fettered in this manner.

There is no doubt that there was a serious breach of trust particularly at a Bank where the respondent was employed. However, in sentencing the Magistrate did take into account many of the mitigating factors such as his plea of guilty, his remorse and the fact that he had made full restitution at the request of the Bank before appearing in Court to be dealt with. In this foolish act on the part of the respondent no one but he himself, his wife and 2 children have suffered drastically in the end. He finds himself out of a job with a gloomy future in front of him.

There were many strong mitigating factors which worked in the respondent's favour and to which the Magistrate gave great weight and quite rightly so before passing sentence.

In John Barrick (supra) are set out the guidelines on sentence which could be imposed. At page 82 in Barrick are set out the following matters to which the Court will pay regard in determining what the proper level of sentence should be:

"(i) the quality and degree of trust reposed in the offender including his ranks; (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."

In any consideration of principles involved in a breach of trust case the observations in the following extracts from the judgment of the Lord Chief Justice in Barrick (supra) at p.81 is pertinent and these must have been borne in mind by the Magistrate:

"The type of case with which we are concerned is where a person in a position of trust, for example, an accountant, solicitor, bank employee or postman, has used that privileged and a trusted position to defraud his partners or clients or employers or the general public of sizeable sums of money. He will usually, as in this case, be a person of hitherto impeccable character. It is practically certain, again as in this case, that he will never offend again and, in the nature of things, he will never again and in his life be able to secure similar employment with all that that means in the shape of disgrace for himself and hardship for himself and also his family."

And further at page 81-82 he said:

"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 the gravity of the offence. The sum involved is obviously not the only factor to be considered, but it may in many cases provide a useful guide".

There seems to be a misconception in the mind of counsel for the State that nothing short of immediate custodial sentence is the norm. But that is not the position at all. The following statement of the Lord Chief Justice in Barrick (supra p.81) is worth noting and this his Lordship said before setting out the above guidelines in that case:

"It is, we appreciate, dangerous to generalise where the circumstances of the offender and the offence may vary so widely from case to case. In the hope that they may be helpful to sentences generally, and may lead to a little more uniformity, we make the following regulations".

Similarly, in Vishwajit Prasad v The State (Crim. App. No. 23 of 1993 FCA) the Court made the following observation which I consider apt:

"As no two cases are exactly alike in every respect and as each case should be decided on its own particular facts and circumstances what we need to seek is a consistency of approach rather than uniformity of sentence".

The above passages lead me to say that there are ample authorities to support the proposition that suspended sentence in cases of breach of trust are not out of the question altogether. In Barrick (supra) it is stated that:

"In any case where a plea of guilty is entered however the Court should give the appropriate discount. It will not usually be appropriate in cases of serious breach of trust to suspend any part of the sentence. As already indicated, the circumstances of cases will vary almost infinitely."

And in the concluding paragraph the Lord Chief Justice said that "It seems to us that this was indeed a serious breach of trust. It was a case where no suspension of the sentences would have been appropriate".

Also in cases of this nature even a probation order could be made. (Vishwajit supra p.7 of Judgment) and also, ibid, "in between these extremes there are several instances of short prison sentences a number of which are suspended."

In the outcome, for these reasons, accepting that there is some force in the submission made on behalf of the respondent by Mr. Leung for the respondent and rejecting those of Mr. Sayed-Khaiyum and bearing in mind the cases cited as authorities, this court is satisfied that the suspended sentence imposed on the respondent was entirely appropriate and it was neither wrong in principle nor was it lenient.

Accordingly, the appeal is dismissed.

Appeal dismissed.

Marie Chan