State v Nalika [2011] FJMC 16; Criminal Case 1003.2009 (10 February 2011)

IN THE MAGISTRATE'S COURT OF FIJI ISLANDS AT NADI

CRIMINAL CASE NO: 1003/09

THE STATE

V

VILLIAME NALIKA

Mr. Newal for prosecution

Accused in person

Date of Sentence: February 10, 2011.

SENTENCE

1. Viliame Nalika, are charged with 4 counts of Theft contrary to section 259 and 262 and 4 counts of Forgery contrary to section 332 (1): 4 counts of Uttering Forged Document contrary to section 343 (1) and 4 counts of Obtaining Money on Forged Document contrary to section 345 (a) of the Penal Code, Cap 17.
   
2. You initially pleaded not guilty when the case was first called in the court on 23.11.2009. After several adjournments spanning a period approximately 1 year 2 months you changed your plea to one of guilty.
   
3. Before you changed plea on 11.01.2011, the charges were read to you, you understood and it was explained to you. The facts were outlined to you and you admitted it I therefore convict you as charged on all counts.
   
4. The outline of facts admitted by you confirms that there was substantial betrayal of trust of your employer (the company). You were employed as Office Worker in the Accounts Section of the Company. Your duties were to do banking, encashment of cheques and depositing wages. On the 21st October 2009, the company discovered that some Cheque Butts were torn and totally missing from the Cheque Book. You encashed 4 cheques of the company with the forged signature. Because of your forgery the company lost $1050.00. You had committed 4 forgeries from 17.09.2009 till 28.09.2009.
   
5. You are fist offender and had pleaded guilty to the offences charged in the first instance. You referred me to your family background. Also that you now have a family who look to you for support. You are 22 years old. In your mitigation you submitted that you are willing to pay back the amount.
   
6. Given the above, fix sentence at 30 months for the offence of obtaining money on forged document. I discount 10 months for the late guilty plea and for the fact that you are a first offender. The complainant incurred a loss of $1050.00 in this case and there has bee betrayal of trust, for these factors I add 4 months. Accordingly you stand as convicted for 24 months (2 years) imprisonment on each count of obtaining money on forged document. In total then, you are to serve 8 years imprisonments. Sentences on each count are to run concurrently hence you are to serve 2 years imprisonment.
   
7. Thus for the offence of uttering false document you get 2 years on each count. In total then, you are to serve 8 years. Sentences on each count are to run concurrently hence you are to serve 2 years imprisonment for the offence of uttering false document.
   
8. You also get 2 years on each count of forgery. In total then, you are to serve 8 years for this offence. Sentences on each count are to run concurrently hence you are to serve 2 years imprisonment for forgery.
   
9. For the offence of theft you get 6 months on each count. In total then, you are to serve 2 years for theft.
   
10. Considering the totality principle I order these sentences are to be served concurrently with each other. Accordingly you have to serve 2 years imprisonment.
    
11. However, I note that a sentence below 02 years could be suspended in terms of section 26-(2) (b) of the Sentencing and Penalties Decree 2009.
    
12. In Prasad v State [1994] FJCA 19; Aau0023. 93s (24 May 1994), Fiji Court of Appeal held that "... courts ought to bend backwards to avoid immediate custodial sentence for first offenders."
    
13. You are a young woman with potential. You have a family to look after. You are a first offender. You promised to court that you won't re-offend and willing to repay the amount to the complainant. In the circumstances I suspend the term for 3 years. Nevertheless, you must pay compensation in a sum of $1050.00 and fine of $500.00.
    
14. You must not re-offend during the operational period of the suspended sentence.
    
15. If you re-offend during the operational period of the suspended sentence of imprisonment, you are liable to be prosecuted under section 28-(1) of the Sentencing and Penalties Decree 2009.
    
16. Twenty eight (28) days to appeal.
    

ORDER

17. I make the following order:
    
    • (a) Accused is hereby sentenced to 24 months imprisonment suspended for 03 years from today;
      
    • (b) You must pay a fine of $500.00 in default 02 months imprisonment;
      
    • (c) You must also pay compensation in a sum of $1050.00 payable to the complainant in default 03 months imprisonment;
      
    • (d) You must pay the fine within 02 months.
      

M H MOHAMED AJMEER
Resident Magistrate

Dated at Nadi this 10th day of February 2011.