State v Ramjan [2010] FJMC 69; Criminal Case 681 of 2008 (15 July 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 681/08

BETWEEN

THE STATE

AND

MOHAMMED RAMJAN

SENTENCE

1. You, Mohammed Ramjan are to be sentenced upon pleading guilty to three counts of uttering forged documents contrary to section 343(1) of the Penal Code, three counts of obtaining money on false pretence contrary to section 345(a) of the Penal Code and one count of personation contrary to Section 369 of the Penal Code.
   
2. The maximum sentence for uttering forged documents and obtaining money by false pretence is fourteen years imprisonment. The maximum sentence for personation is two years imprisonment.
   
3. The tariff for uttering forged documents and obtaining money by false pretence is imprisonment for 18 months to 3 years. In this case I pick my starting point for uttering forged documents and for obtaining money on false pretence as 18 months. For personation I pick my starting point as 3 months.
   
4. You pleaded guilty at the very out set to all the seven counts and you were granted bail on the first day itself. However sentencing was delayed due to various reasons such as adjournments sought for mitigation, non availability of magistrates, non appearance by you, for determination of applications made by you and for restitution.
   
5. Be that as it may, the facts of this case reveals that you were charged in this case following an investigation by the Anti Money Laundering Unit, Transnational Crime Unit and the Fiji Inland Revenue and Custom authority in to a scam where eight FIRCA cheques were stolen from Nadi Airport Post office, forged and cashed at third party outlets using forged identification documents. Eight cheques all to the total value of 27127.64 dollars have been stolen in the whole transaction. You came to the picture after the cheques were stolen.
   
6. You have committed this offence with other persons. Further it appears this scam is carried out in a well organized manner. Although you are not the leader of the team who carried out the scam, your role is very significant according to the facts of the case. Your involvements in the commission of the offence are briefly as follows;
   
   1. After the cheques were stolen by another person you have gone to see the main culprit and have arranged a car to go to Lautoka from Nadi.
      
   2. You have gone to a hotel room with the other and have assisted the other to carry a printer to the room.
      
   100. You have taken instant photos of you to facilitate the other person to substitute the photo in someone else's passport, with your photo.
        
   4. You have then gone to Food for Less Supermarket with a cheque valued $ 1881.51 and have purchased groceries for about 300 dollars and presented the cheque with the forged passport.
      
   5. You have signed the cheque as Lawrence Arvind Singh, whose name appeared on the passport.
      
   6. The cash received have been shared among you and the other two persons.
      
   7. You have cashed the second cheque valued $ 1329.55 at the Reddy's Royale Wine Shop in the same manner.
      
   8. You personated one Billy Prakash Chandra in the second time.
      
   9. You have presented a cheque valued $ 7045.17 for the third time on the 25th August 2008 at Real Me Dressing in Suva.
      
   10. You have personated one Sanjeev Kumar in the third time.
       
7. Although it appears that passports have been forged and you have personated three persons there are no charges for forgery of pass ports and you are only charged for personating only one of them. However it appears that you are directly involved in the commission of the offences you are charged with.
   
8. These offences are committed in a very organized manner and the incidents cannot be considered as isolated incidents of mischief by a young explorer. After committing these offences on the 06th September 2008 you have left for Tonga and later you were located in Samoa and were deported to Fiji. Although you have fled the country after the commission of the offence you have admitted the offence in the caution interview. Yet it appears your conduct after the commission of the crime has caused extra troubles for the investigators and resources were wasted to locate you and to get you deported from Samoa.
   
9. In State V Ngeon Chong Chee(2008) FJHC 38, Justice Gounder stated " Fraud offences such as obtaining money or goods by false pretence cause economic harm. In assessing the harm, the starting point is the loss of monetary value to the victim. In general, the greater the loss, the more serious is the offence. However one must appreciate that the monetary value of the loss may not reflect the full extent of the harm caused by fraud offences."
   
10. In the whole transaction you were directly involved in encashing three cheques all to the total value of 10256.23 dollars. Although you had nearly two years since you have pleaded guilty it does not appear that you attempted to do any restitution. You showed some receipts to the total value of 150 dollars yet it was revealed to be receipts of a Small Claim Tribunal Case.
    
11. I have observed the following aggravating factors in this case.
    
    1. A substantial amount of money is involved
       
    2. The degree of premeditation and the degree of sophistication in tampering with documents
       
    100. Crime is committed in a well organized manner
         
    4. Use of other's identities and forging of other's passports
       
    5. Lack of restitution
       
    6. The subject matter of the fraud is property belonged to the state.
       
    7. Fleeing the country after the commission of the crime
       
    12. For the aggravating circumstances of the case I enhance the sentences for each offence by 9 months.
        
13. In mitigation your counsel said that "Father deceased. Looking after the mother. He has two children, one is 4 and the other is 2. Sole breadwinner. Wife domestic duties. At the moment he is unemployed. He cooperated with the police and pleaded guilty in the first opportunity. The main culprit was apprehended due to the help by the accused. He has no previous convictions. He was dumped in this matter. He got a free trip to Tonga and Samoa. Wish for the court to consider that there is no likelihood that he will re offend. The mastermind behind this was his neighbor. Police is going to use him as their witness. He was only used to utter the forged documents."
    
14. On the 1st June 2010 your counsel sought time for further mitigation and for restitution. But you have not restituted up to this date. However in further mitigation you said that "For the mistake I did I want to pay that amount." Further you said you paid 150 dollars in three installments yet the receipts you tendered were receipts of a Small Claim Tribunal case.
    
15. You pleaded guilty at the very outset and it can be considered as a sign of remorse. But you have not restituted so far although you indicated to court that you have an intention to restitute before the sentencing.
    
16. You have no previous criminal records. You are still in very young age. The court is mindful that you should be given a chance to correct yourself too. Having considered the mitigatory circumstances I reduce the sentences of each count by 12 months.
    
17. The courts have always looked at fraud offences in a serious manner. Time and again the courts have emphasized the necessity to impose deterrent sentences for offences of this nature. The sentence should be appropriate enough to deter you from committing offences like this, at the same time the court has a duty to send a stern message to those who are minded to indulge in fraud offences.
    
18. Section 4 of the Sentencing and Penalties Decree sets out the following purposes of which sentencing may be imposed by a court;
    
    1. To punish offenders to an extent and in manner which is just in all the circumstances
       
    2. To protect the community from offenders
       
    100. To deter offenders or other persons from committing offences of the same or similar nature
         
    4. To establish conditions so that rehabilitation of offenders may be promoted or facilitated
       
    5. To signify that the court and the community denounce the commission of such offences
       
19. You are a first offender and you are married with two children. Although you pleaded guilty at the very out set you did not take any step for restitution. Unlike in other cases you had nearly two years at least to pay half of the amount you obtained. Justice Gates said in State V. Mahendra Prasad HAC009.02S, where there is an earnest and sincere wish to effect reparation to the victim, and where that wish is prompt and an expression of remorse, a suspended sentence is not wrong in principal.
    
20. But in this case you indicated to court that you want to pay back the money nearly two years after you pleaded guilty. It should be noted that suspension of sentence is only considered where an early restitution is made as true expression of remorse and not just an attempt to buy one's way out of prison.( State V Cakau HAA125 of 2004S)
    
21. Thus I do not believe although you have no criminal records, the circumstances of this case warrant a non custodial sentence. The sentence should signify that the court and the community denounce the commission of offences of this nature. Accordingly I impose the sentences in the following manner;
    

1st Count – 15 months imprisonment

2nd Count- 15 months imprisonment

3rd Count – 15 months imprisonment

4th Count – 15 months imprisonment

5th Count – 3 months imprisonment

6th Count – 15 months imprisonment

7th Count – 15 months imprisonment

22. Further I order that all the sentences should run concurrently and you should serve a 15 months imprisonment altogether. You are eligible for parole after 9 months.

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka
15.07.2010