State v Neitoni [2011] FJMC 50; CRC180.2011 (5 April 2011)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 180/11

BETWEEN

THE STATE

AND

WATISONI NEITONI

SENTENCE

1. You, watisoni Neitoni are to be sentenced upon pleading guilty to the following counts.
   

1st Count – Forgery contrary to Section 335(2)(a) of the Penal Code.

2nd Count – Uttering forged document contrary to section 343(1) of the Penal Code.

3rd Count – Obtaining money on forged document contrary to Section 345(a) of the Penal Code.

4th Count – Forgery Contrary to Section 335(2)(a) of the Penal Code.

5th Count – Uttering forged document contrary to Section 343(1) of the Penal Code.

6th Count – Obtaining money on forged document contrary to Section 345(a) of the Penal Code.

2. The maximum punishment for these offences are as follows;
   

Forgery -imprisonment for fourteen years.

Uttering forged document – imprisonment for fourteen years.

Obtaining money on forged document -imprisonment for fourteen years.

3. You are a Pastor of Omega Global Caring Ministry. Between 22nd August 2008 and 10th September 2008 you forged the signatures of Laite Mole (71 years) and Waisake Aparama Salobo (25years) who are members of Mataqali Botelaki of Vakabuli village, on 4 different occasions and obtained $ 4,813.83 from the NLTB. Further the summary of facts reads as follows;
   

"The accused is also a member of the said land owning unit and he forged the signatures of the Mataqalu members on the consent letter asking for an advance payment of their lease money and took it to the Roko's office which they stamped after failing to make proper check from VKB register. The accused then lodged the consent letter to NLTB whereby it was processed and the cheques were handed to the Accused and which was later cashed by them. On the 12th November 2008 Mosese Namolivou, head of Mataqali Botelaki of Vakabuli village reported the matter to Police after they discovered that the Mataqali members neither signed nor gave consent for the accused to withdraw their lease money."

4. It appears that the incident took place in 2008. However for the reasons best known to the Police, this matter was reported to court only on the 22nd March 2011.
   
5. Be that as it may, it should be noted, that offences of this nature which involves misuse of moneys belonging to members of the public should attract heavy penalties to send a deterrent message to the others as well, who are minded to indulge in similar acts. Persons who are engaged in this type of corrupt practices breaching the trust reposed on them should be dealt with appropriately. You have not only breached the trust of your own Mataqali members but you have misled state institutions as well, by presenting forged documents. Your actions have to be distinguished from a mere act of simple larceny. These are series of acts which you have meticulously planned with wicked intention to cheat a number of parties including your own members of the clan to gain unlawful advantage.
   
6. I have seen the following aggravating factors in this case;
   
   1. These are premeditated and meticulously planned acts.
      
   2. Repeated actions in four different occasions.
      
   100. You obtained the money belonging to a group of members of the public.
        
   4. You breached the trust of your own mataqali members.
      
   5. You misled a State institution (NLTB) to eventuate your fraud.
      
   6. You corruptly obtained a large sum of money.
      
   7. You did not make attempt to do any restitution for more than two years.
      
7. In mitigation you said that you came to the Police on your own. You said that you will not re offend and asked for forgiveness. Further you tendered one letter from the Mataqali members informing that you may be released on bail and another letter from a reverend of Omega Global Caring Ministries.
   
8. The reverend, Sailosi T. Veshikula has informed in his letter that you were instrumental in coordinating with Government departments, NGO s and other parties in the operations of Omega Global Caring Ministries. The letter further says that you are a changed person now and the Ministry is willing to pay $100-$150 a month to settle the money you obtained.
   
9. It should be noted that the Court does not see that you are remorseful of your actions or you have changed, as the Reverend of Omega Global Caring Ministries claims. It does not seem that you have even attempted to pay back the money you fraudulently obtained, up to date. If you were truly remorseful, you had ample time to do restitution. If you have changed, you should have paid back the money you illegally obtained, before you engage in correcting the community. Before you teach the others to be good, you should set an example by correcting yourself. The members of Boletaki clan has written a letter saying that you could be granted bail, as Omega Ministry has informed them that they are going to pay back the money. I do not think that the Court can make an order requiring a third party, specially a Ministry of a religion to do restitution on your behalf, in a crime committed by you. Besides one should not think that the culpability of committing an offence can be done away with, just by paying back the money stolen.
   
10. 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."
11. In this case I pick my starting point for forgery and uttering forged documents as 18 months. I pick my starting point for obtaining money on forged documents as two years. For the aggravating factors I enhance each sentence by 18 months. For the mitigatory circumstances I reduce each sentence by 6 months.
    
12. You pleaded guilty at the very out set and therefore I give you a one third discount for each sentence.
    
13. Accordingly I arrive at the following sentences for each count;
    

1st Count- 20 months imprisonment

2nd Count- 20 months imprisonment

3rd Count- two years imprisonment

4th Count- 20 months imprisonment

5th Count- 20 months imprisonment

6th Count- two years imprisonment

14. You are a first offender. But I do not think that you deserve the leniency normally shown to a first offender in a case, with different circumstances. Besides Justice Nawana in in State v. Vilikesa Tilalevu and Savenaca Mataki HAC 081 OF 2010 stated that;
    

"I might add that the imposition of suspended terms on first offenders would infect the society with a situation - which I propose to invent as 'First Offender Syndrome' - where people would tempt to commit serious offences once in life under the firm belief that they would not get imprisonment in custody as they are first offenders. The resultant position is that the society is pervaded with crimes. Court must unreservedly guard itself against such a phenomenon, which is a near certainty if suspended terms are imposed on first offenders as a rule."

15. 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. 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).
    
16. In the circumstances, I do not think that the circumstances of this case warrant this court to impose a non custodial sentence on you. However I order that all the sentences should run concurrently to each other.
    
17. Accordingly you should serve a total imprisonment of 2 years. You are eligible for parole after 18 months.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka

05.04.2011