State v Tukana [2009] FJMC 6; Criminal Case 746.2009 (21 September 2009)

IN THE RESIDENT MAGISTRATES COURT
CENTRAL DIVISION, SUVA

Criminal Case No. 746 of 2009

STATE

V

JOELI TUKANA

Prosecution: Corp. Yasin, Police Prosecutor
Accused: Ms R Senikuraciri

Date of Hearing: 28 July 2009 &17 August 2009
Date of Ruling: 21 September 2009

SENTENCING

[1] The Accused, Mr Joeli Tukana, has been charged with, pled guilty to and has been convicted of one count of Larceny by Servant contrary to s 274(a)(1) of the Penal Code, after electing hearing in the Magistrates Court.

[2] The Accused was represented by Ms Senikuraciri of the Legal Aid Commission on 28th July, 2009 when the Accused pled guilty, and she made oral submissions and handed up written submissions on mitigation on that day.

[3] Ms Senikuraciri did not appear on 17th August, 2009 when this matter was called for the Prosecution to make submissions on sentencing. The State elected to file written submissions responding to the Accused’s submissions on mitigation.

[4] This is a case of Larceny by Servant. The Accused was a bank manager with ANZ Bank in Lami.

[5] The Accused used his bank ID and password to electronically transfer funds from the bank’s suspense account to the Valevale Development Project Account, of which the Accused was signatory.

[6] This occurred on 6th February, 2001, it was discovered by the bank on 17th April, 2001, and the amount transferred was $12,000.00. Charges were filed on 23rd June, 2009.

[7] No explanation has been proffered by the State regarding the eight year delay in filing charges against the Accused.

[8] The Accused’s Submissions on Mitigation identify the abuse of trust by the Accused as a senior employee of the bank as an aggravating factor.

[9] As identified in the Prosecution’s submissions, the lack of restitution is also an aggravating factor. The Accused has not paid back the money he took, nor has he made any attempt to do so over the intervening years.

[10] The mitigating factors are that the offending took place over a short period of time, the amount stolen was small, the funds were allegedly used for traditional obligations, and there has been an eight year delay in filing charges.

[11] The Accused pled guilty at the first opportunity.

[12] Larceny by Servant by its very nature involves an offender who was trusted by their employer and who has abused that trust. It is that breach of trust which generally attracts a custodial sentence.

[13] As stated in the leading authority, R v Barrick, 81 Cr. App. R. (S) 78, the offender is usually a person of hitherto impeccable character, otherwise they would not have been put in a position of trust in the first place. The offence is usually a "one off", as the offender is unlikely to secure similar employment thereafter.

[14] R v Barrick, [supra] has been followed in Fiji by the cases of State v Tokona, High Court of Fiji Criminal Appeal No. 14 of 2000 (28 July 2000), State v Roberts, High Court of Fiji Criminal Appeal No. HAA 0053 of 2003 (30 January 2004) and State v Kumar, High Court of Fiji Criminal Case No. HAC 005 of 2005 (7 October 2005).

[15] The State submits that a custodial sentence is appropriate, while the Accused has submitted that he should be given a suspended sentence in the circumstances.

[16] The Accused relies on the cases of State v Kumar [supra] and State v Roberts [supra] in submitting that a suspended sentence would be appropriate.

[17] In those cases the Court upheld suspended sentences because the offenders had made full and prompt repayment and shown genuine remorse.

[18] Here the offender, Mr Tukana, has not made any restitution whatsoever.

[19] In the Accused’s submissions on mitigation, his counsel states that he is willing to make restitution. However, an offer to make restitution at this point in time is nothing more than a payment to buy his way out of prison, as stated in the case of State v Singh, Fiji Court of Appeal Criminal Appeal No. AAU 33 of 2006 & AAU 39 of 2006 (25 June 2007), which following the reasoning of the High Court in State v Semiti Cakau, HAA 125 of 2004S.

[20] The Court has not seen any sign of true remorse from the Accused.

[21] The Accused also submits that he should not be subject to a custodial sentence due to the delay in bringing the charges, stating that he has already suffered the consequences of his offending both socially and financially while his case was pending.

[22] The Court notes that while the charges were not filed until 23 June 2009, this case has been disposed of quite promptly since then. The Accused cannot claim that he has suffered from delay while the case was pending as it has not been pending very long at all. The only delay was with respect to the filing of the charges.

[23] Further, the Accused’s own submissions admit that the Accused has been employed on the vessel Tunatuki II as Operation Managers from 2001 [the year of the offence] until last month when he was laid off with the rest of the staff.

[24] The Court does not see how this Accused has suffered much if at all from the State’s delay in bringing charges, even though it was a significant delay. He has been employed elsewhere as an operations manager the whole time. His recent unemployment is due to the vessel ceasing operations, not to this charge being filed.

[25] While the funds stolen were not put into the Accused’s personal account but into the Valevale Development Project Account, there is no evidence before this Court as to what the Accused, a signatory to the account who had been entrusted with the chequebook, actually did with those funds. The Accused claims he used them for traditional obligations.

[26] The amount stolen, $12,000, was small in the context of embezzlement cases but not insignificant.

[27] The Court rejects the Accused’s claim that this was a crime of opportunity. The Accused used his bank ID and password to access funds belonging to his employer and electronically transfer them from the bank’s suspense account to an account that he controlled. Such a theft took some thought if not planning.

[28] The tariff for breach of trust sentences ranges from 18 months to 3 ½ years imprisonment. State v Bole, High Court of Fiji Criminal Case No. HAC 38 of 2005S (4 October 2005).

[29] The Court picks 24 months as its starting point, as the Accused was a bank manager and held a position of significant responsibility and trust.

[30] The Court deducts 6 months for the mitigating factors of the amount stolen being small, the funds being put in the mataqali’s project account not the Accused’s personal account, the offence occurring over a short period of time and the State’s delay in bringing the charge.

[31] From the resulting sentence of 18 months the Court deducts one third, or 6 months, for the Accused’s early guilty plea.

[32] The Court sentences Mr Joeli Tukana to 12 months imprisonment for Larceny by Servant contrary to s 274(a)(1) of the Penal Code.

[33] As stated in R v Barrick [supra] at p.81-82:

"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."

[34] This offender stole from his employer the bank and has made no restitution, despite obtaining other employment. In the Court’s humble opinion, granting him a suspended sentence would send the wrong message to the community and the general public. This Court declines to suspend his sentence in the circumstances.

[35] The parties have 28 days to appeal.

DATED this 21st day of September, 2009

Mary L Muir
RESIDENT MAGISTRATE, SUVA