State v Verma [2013] FJMC 160; Criminal Case 1699.2010 (22 April 2013)

IN THE MAGISTRATES COURT
AT SUVA

Criminal Case No. 1699/2010

THE STATE

–v-

SANJAY S. VERMA

For Prosecution: Ms. Fatiaki (DPP)
For Accused: Mr. Nadan S with Mr. Chand A

SENTENCE

1. Mr. Sanjay S. Verma, the accused, (hereinafter referred to as the accused) is being charged with one count of "Forgery" contrary to Section 341(1) of the Penal Code and one count of "Uttering Forged Documents" contrary to Section 343 of the Penal Code. The particulars of the two charges are as follows:
   

Count 1: On the 10th day of July 2008 at Suva in the Central Division with intent to defraud forged the signature of Amit Prasad on the Tax Invoice Number 0343 purporting the same to be genuine.

Count 2: On the 10th day of July 2008 at Suva in the Central Division, knowingly and fraudulently uttered a forged, Tax Invoice Number 0343 at the Small Claims Tribunal, Suva.

2. Upon pleading not guilty to the above mentioned charges, matter proceeded for a full Hearing and at the end of the said full Hearing, this court found the accused guilty to the said charges on the 17th of April 2013. The reasons for the said conviction were given in detail when the Judgment was pronounced in open court and now the accused stands convicted before this court. The matter is being fixed for Sentencing today.
   
3. In mitigation, the following factors are being brought to the notice of court:
   
   • * You are 37 years of age, married and have a 7 year old son.
   • * You wife is a full time employee at the USP and you have to look after the child.
   • * You are a full-time law student and a part-time businessman.
   • * Your income is crucial in maintaining the family's lifestyle.
   • * You have academic commitments already scheduled for next week.
   • * You financially support your elderly parents.
   • * You have been a diabetic patient for ten years and require medication three times a day and have to be a strict diabetic diet.
   • * You have to constantly visit the toilet to urinate, consult the doctor and the dietician.
   • * You have no previous convictions.
     
4. It was suggested by the accused that he is only being charged with one count of "Forgery" and one count of "Utterance" and him being a 1st offender, his sentence should not be higher than 6 months and that has to be suspended. In support of this contention, the accused has cited 3 case authorities.
   
   1. State v. Singh [2012] FJHC 855
   2. FICAC v. Khan [2010] FJHC 145
   3. State v. Tuiloma [2011] FJC 15
      

Further, the accused requests that if the court determines that a period of custodial sentence is required, the sentence to begin on 29th of April 2013 enabling the accused to complete his academic requirements and fulfill certain family obligations. The conclusion of the accused's mitigation is "that a non-custodial sentence would be appropriate in this case".

5. The learned Prosecutor, in her Sentencing Submissions, identified the maximum sentence for the offences of "Forgery" (Section 341(1) and Section 47 of the Penal Code) and "Uttering a Forged Document" (Section 343 and 47 of the Penal Code) is imprisonment for a term not exceeding 2 years or a fine or both. According to the State "the tariff for fraud offences is 18 months – 3 years imprisonment as His Lordship Justice Gounder stated in State v. Tomasi Kaitoga Kesi [2009]RFJHC 145; HAC 024.2009 (22nd July 2009). While the citing the case of The State v. Yeung Sze Wai [1997]; HAA 0079.1997s (3rd September 1997), the learned Prosecutor submits that the maximum punishment is the same for the offence of "Uttering a Forged Document" as that for forging that particular document. This court endorses those propositions of the State.
   
6. The learned Prosecutor identifies two aggravating features of the case:
   
   • * Even though the defrauded amount is small in this case, the accused committed a systematic fraud in breach of trust.
     
   • * He has not offered any restitution to the complainant.
     
7. State suggests a sentence of 12 months imprisonment suspended for 2 years for each count to serve concurrently to each other "would in-fact serve the ends of Justice".
   
8. While appreciating the grounds cited by the learned Defence Counsel in Mitigation, this court proceeds to see the aggravating background of the offences committed. As already analysed at length in the Judgment, this court has found the accused guilty to the first count of "Forgery" and the 2nd count of "Uttering a Forged Document". The court concluded that the accused did forge or made to forge the signature reflected on Tax Invoice No. 0343 of Amit's Electricals. The said forged invoice had been admittedly uttered to the Small Claims Tribunal by the accused to pursue a claim of $550 from Mr. Cakacaka, the complainant. It was revealed in the course of the Hearing that the Small Claims Tribunal had decided in favour of the accused and ordered to pay $760 to the accused. Thus, it is quite apparent that the decision of the learned Referee had been based on the Tax Invoice No. 0343.
   
9. At the end of the Hearing before this court, it was judged that the 'signature' on the Tax Invoice was forged and had it been revealed or unveiled at that stage, the accused would not have got the Small Claims Tribunal decision in his favour. Therefore, the most aggravating factor attached to these offences is Uttering a Document to a Tribunal, which is knowing to be forged and pursuing a financial claim. It is worth to note with concern that Section 3(3) of the Small Claims Tribunal Decree says that "each SCT shall be a division of the Magistrates' Court". Section 4(1) of the Decree says "the jurisdiction of the Tribunal shall be exercised by the referees appointed under Section 6 of this Decree or by a Resident Magistrate". In this background it is quite apparent that though the Small Claims Tribunals do not fledge with comprehensive judicial glamour, those institutions do mean to perform a quasi judicial function. Therefore, whoever tries to penetrate the jurisdiction of the SCT, in view of perverting the course of Justice, not only challenging the authority of the SCT, but the authority of the entire Legal system.
   
10. When these types of corrupt practices are brought to the light of Criminal Justice System, the entire society, comprised of very high percentage of law abiding citizens, will anticipate the outcome of the case. The way the court will react will give a strong message to the society that any undue advantage through corrupt practices within the Justice System will not be tolerated and therefore discouraging and demoralizing people who even think of such things.
    
11. It is not only the "trust" that the law or the Justice System anticipates from the accused being breached in this instance. The "duty" of any litigant who comes before a Court or Tribunal to come with clean hands is also been breached. Any attempt to deviate from that basic principal with any fraudulent means should be severely and firmly dealt with. It doesn't matter or rather doesn't play pivotal role what the monetary value anticipated from such a breach. What aggravates the background is the breach of trust and the misuse of the system. Things get worse when a lot of pre-meditation, pre-planning and prior concert are being involved to make that fraudulent effort a success. In this instance all the above stated aggravating factors are plainly visible.
    
12. Therefore, remaining within the tariff recommended in the case of The State v. Kesi (Supra). I select a starting point of 18 months imprisonment for each count. Since there was no early plea of guilty, accused is not entitled to have any reduction at this point. I add 12 months imprisonment for all the above stated aggravating factors to the starting point where it reaches 30 months imprisonment.
    
13. When considering the mitigatory factors, this court observes that the main concern of the accused is the well-being of his family and his academic achievements. As stated in "Principles of Sentencing" (2nd Edition) of D.A. Thomas, "the court has stated on many occasions that the hardship caused to the offender's wife and children is not normally a circumstance which the sentencer may take into account". In Lewis (20.11.72, 2600/A/72) the court refused to reduce sentences of imprisonment totaling three and a half years imposed for burglary, stating that it had been urged 'to take into consideration the unhappiness and the distress that his misdeeds have brought upon his dependants. That also is something which is an inevitable consequence of crime, and it is something which the court cannot regard as a mitigating circumstance'. In another case, (Sherlock 14.1.74, 2731/A/73) a sentence of four years and three months was upheld on a man of 32 whose wife had just given birth to a baby, after losing a child some time previously, with the comment that 'this court is very sensitive . . . to the distress and hardship which sentences of this nature must necessarily bring upon the family, friends and relations of convicted person; but this is one of the penalties which . . . convicted person must pay'. In Ingham (3.10.74, 3120/A/74) the appellant was sentenced to a total of twenty-one months' imprisonment for driving while disqualified; the court was told that his wife was in an advanced state of pregnancy and her husband's imprisonment had caused severe depression. The court refused to interfere, saying that 'imprisonment of the father inevitably causes hardship to the rest of the family . . . part of the price to pay when committing a crime is that imprisonment does involve hardship on the wife and family, and it cannot be one of the factors which can affect what would otherwise be the right sentence'. According to Thomas, this principle appears to be subject to 3 recognizable exceptions, although none is automatically applied. The first exception is, the family hardship is "exceptional and considerably more severe than the deprivation suffered by a family in normal circumstances as a result of the imprisonment". In the case of Anderson, (14.11.74, 2571/A/74) it says where the accused's wife was a permanent cripple who could not cope with domestic matters without he husband's assistance was considered to be exceptional. In Renker (29.06.76, 2266/A/76), the accused's sentence was reduced enabling him to spend time with the son, dying of leukemia. The 2nd exception is the offender being the mother of young children. The third scenario is when both parents are imprisoned simultaneously. The academic commitments of the accused and the well-being of the family that the accused averred, thus, cannot be taken into account as strong mitigatory grounds and those attract a little weight. (pgs. 211, 212, 213).
    
14. On the other hand, the medical history of being a diabetic patient is not supported by any documentary proof. Had the accused been suffering from diabetes for 10 years, there should be some records which should have been brought to the Notice of Court. Similarly, the first averment in mitigation about the "prayer organized at the accused's residence" took a little while to realise what it means is that the accused is going to be sentenced on his 37th birthday. Even that is not being supported at least with a photocopy of the accused's Driving Licence. Therefore, those factors do remain as "evidence from the Bar Table" and does not attract much weight. But, this court is ready to give due consideration to the fact that the accused has no Prior Convictions. That is being confirmed by the Prosecutor as well. There cannot be any reduction of sentence for the "remorse" of the accused as he proceeded for a full trial. Finally, after a careful consideration of all the mitigating factors claimed by the accused inclusive of his good character, this court decides to reduce 6 months from the existing sentence where it comes down to 24 months imprisonment.
    
15. Now, the final sentence of the accused remains at 24 months imprisonment for each count. This court now proceeds to see whether the said sentence of 2 years imprisonment for each count should be suspended or not. As cited in "Principles of Sentencing", it is evident that the attempts or conspiracies to pervert the course of Justice are being dealt with firmly. It says "a similar policy (referring to perjury) is evident in case of conspiracies to pervert the course of Justice and analogues offences. A sentence of imprisonment usually be upheld, varying in length according to the nature of the conspiracy and, in particular, the extent to which the appellant persisted in it". (pgs. 175, 176). This court sees that the action of the accused in committing the alleged two offences does pervert the course of Justice. Therefore, an immediate custodial sentence warrants against the accused in this instance.
    
16. Now it is the duty of the court to determine whether the custodial sentence for each count should run concurrently or consecutively. According to D.A. Thomas in "The Principles of Sentencing", the two principles which govern whether the sentence should be consecutive or concurrent are the "One Transaction Rule" and the "Totality Principle". (pgs. 52 to 61). The cited case of Lewington, (23.01.73 2672/A/72) says "the unlawful possession of a forged bank notes and uttering the same note were covered by the term of "One Transaction Rule". In case of Bennett, (20.6.72, 1009/A/72) it was decided that where the accused forged an entry in the log book of a car and subsequently used the log book as a means of obtaining by deception do not formulate one transaction (pg. 55). As their Lordships of the Supreme Court agreed in the case of Wong Kom Hong v. State (2003) FJHC 13, "that the problem lies in defining what a single transaction is". This court does not wish to proceed to define whether the two offences of which the accused found guilty do formulate "one transaction" or not as the court is of the view that though it is not performed in one transaction, if a consecutive sentence is to be ordered, it will jeopardize the "Totality principle". Therefore, the sentence of 2 years imprisonment for each count is hereby ordered to run concurrently.
    
17. This court if fully mindful that a custodial sentence below 2 years imposed by a Magistrates' Court can be suspended in terms of Section 26(2) of the Sentencing and Penalties Decree. But, this court is of the firm view that the conduct of the accused when performing the two criminal acts does not deserve to have any mercy or leniency. The deterrent punishment of the accused should be a strong message to the public at large about the severe repercussions that one has to face in case of abuse or misuse or fraudulent efforts to pervert the Justice System.
    
18. Therefore, the accused is sentenced as follows:
    

1st count: Forgery – 2 years imprisonment.

2nd count: Uttering Forged Document – 2 years imprisonment.

Both the sentences of 2 years imprisonment are ordered to run concurrently.

19. In Mitigation, the accused requests that his custodial sentence to be commenced on 29th of April 2013, in case of court decides that a custodial sentence is required. This is to enable the accused to complete his academic commitments, to participate in the Parent's Day at his son's school, make arrangements to his child's transportation and after school custody and finally to arrange alternative accommodation for his wife and child in a nearer place which is closer to his wife's workplace. In response to this request the court wishes to stress that "crime" is a "crime" whatever the colour and nature of it may be. When such a crime is being established beyond reasonable doubt and the court determines that an immediate custodial sentence is warranted, this court does not wish to mollycoddle the accused anymore. It is rather unfortunate and ironical if the 37th birthday of the accused falls today, as he claims. But, a person who insinuated that he could tease the Justice System cannot anticipate much after being caught. Hence, the sentence of 2 years imprisonment is hereby ordered to commence from today itself.
    

. . . . . . . . . . . . . . . . . .
Mr. Janaka P. Bandara
Resident Magistrate, Suva

At Suva
Wednesday 22nd April 2013