State v Nischal [2011] FJMC 153; Criminal Case 540.2009 (13 December 2011)

IN THE MAGISTRATE'S COURT AT SUVA
CRIMINAL DIVISION

Criminal case No. 540 of 2009

The State

v

Navin Nischal

For the State: Ms. Leweni
For the Accused: Mr. Singh

SENTENCE

The Accused has been convicted as charged after a full trial of 6 counts of Larceny by Servant contrary to section 274 (a) of the Penal Code.

He is a first offender and counsel has offered written mitigation on his behalf.

Mitigation

Navin Nischal is 38 years of age, married with 2 children. Since he lost his employment with Post Fiji Ltd, he has been employed by Jedu's Stationery as the sales manager. He is currently the sole breadwinner in the family and he supports his son, 17 years old who is currently attending Rishikul College in Form 6. He also supports his 19 year old daughter with her studies as a private student at USP. In addition he is solely responsible for the mortgage payments with the Bank of the South Pacific. His current balance is $69, 685. 95.

According to counsel, the Accused has suffered socially and financially due to this conviction and he submits that he had been punished enough. The Accused is willing to repay all the items that he took and he seeks leniency from this Honourable Court. He also submits that in the circumstances of this case, that a sentence of imprisonment that is wholly or partially suspended would be the most appropriate sentence.

Sentencing Recommendations

The State has also filed sentencing submissions for this case. The State submits that the offence is very serious as it carries a maximum sentence of 14 years imprisonment. The offence also involves a serious breach of trust and notwithstanding his previous good conduct as a first offender, a custodial sentence is inevitable.

The State identifies the following as aggravating factors: -

(a) The serious breach of the trust placed on the Accused by the company

(b) The lack of remorse and continuing loss suffered by the company

The only mitigating factor is the Accused's previous good conduct as a first offender.

The State submits that an appropriate starting point is 15 months imprisonment.

In imposing the sentence this Court is mindful of the various authorities that have set out the sentencing tariffs for such offences. Unlike other offences, a person's previous good conduct as a first offender carries relatively little weight when sentencing for such breach of trust offences.

This is due to the fact that a person with a previously unblemished character would be entrusted with such positions of trust therefore the offending is more egregious.

The aggravating factors here are the lack of any remorse shown and the lack of any form of restitution.

The mitigating factor here is the previous good conduct as a first offender. The Court notes that the Accused has offered full restitution however this is only now being made prior to the sentence being handed down and it can be characterised as an effort to pay his way out of prison.

The offending here requires a sentence of imprisonment and the Accused will be sentenced together for all 6 counts.

Applying the authority of Isikeli Vuniwaqa –v- The State [2005] FJHC 465, I take a starting point of 15 months imprisonment.

For the aggravating factors I add 12 months imprisonment. For the Accused's previous good conduct as a first offender I deduct one third of the sentence - 9 months imprisonment.

Navin Nischal, for each count of Larceny by Servant I sentence you to 18 months imprisonment and each count will be served concurrently.

This sentence is less than 2 years therefore it may be suspended if the circumstances are "just." In this instance, the trial commenced on the 14th March and concluded on the 17th March 2011. After the trial the Magistrate who heard the proceedings left the bench and the matter was not heard again until May when orders were made by me for submissions and the Accused was not convicted until 7th September 2011 – a full 6 months after his trial.

In the circumstances the Accused should not be penalised for the systemic delays. I therefore invoke section 26 of the Sentencing and Penalties Decree and I order that of the 18 months term of imprisonment – the Accused will serve 9 months in custody and the balance shall be suspended for 2 years.

Navin Nischal for Counts 1 to 6 – Larceny by Servant I sentence you to 18 months imprisonment, 9 months to be served in custody and the balance to be suspended for 2 years.

All counts to be served concurrently.

28 days to appeal

U. Ratuvili
Acting Chief Magistrate

13th December 2011