State v Lal [2013] FJMC 19; Criminal Action 921.2012 (18 January 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Criminal Action No: 921/12

STATE

V

RONEEL RAVNEEL LAL

Prosecution : Ms Shomal Kant. (For DPP)
Accused : in person.

SENTENCE

1. You Roneel Ravneel Lal is here today to be sentenced following the admission of guilt on your own accord and free will in this Court on 22.08.2012 for committing the offences of 'Obtaining Financial Advantage by Deception' and 'Serious Computer Offence' contrary to sections 318 and 341 of the Crimes Decree No 44 of 2009.
   

Count – 1

2. The synopsis of agreed facts states that the first offence was committed on 05.12.2011.
   
3. You deceived Shashi Prabhakar to obtain $240 in cash. It appears that you have identified yourself as Deepak Shivnil to her by a social network site. Later you led her to send money via Western union money transfer in order to purchase her a gaming device which was only available in Suva. After her confirmation you went to the Western Union branch with the control number and the driver's licence of actual Deepak Shivnil to disbursement of $240.
   
4. However you didn't buy the device she required and later deactivated your social network account. The matter was then reported to the police and investigations led to arrest you. Police have then found that actual Deepak Shivnil has lost his driver's licence at a night club in early 2011. Further it was stated that you deliberately distorted the said licence to use and mislead others.
   
5. The Court finds you guilty for the offence and you are convicted as charged.
   

Count – 2

6. The prosecution further submits that you committed a 'Serious Computer Crime' between 01.11.2011 and 05.12.2011.
   
7. At the outset Court notes that the second count of the charge sheet dated 11.07.2012 does not carry a penal section which the accused charged. It states 'contrary to section 340(a)(2),(b)&(c) of the Crimes Decree No 44 of 2009'. A careful perusal will illustrate that section 340 of the Decree speaks about formation of the offence. The penal sections start from section 341 onwards. This irregularity was not rectified during any stage of this proceeding.
   
8. Further the prosecution states that the accused 'without authorisation, modified data held in a computer, knowing that the modification was unauthorised, and he intended to commit a serious offence against a law by the modification'. In the summary of facts the prosecution has outlined how the offence was committed. It says 'further, he had entered data in a computer; on to a social networking site knowing that the details belonged to another person and without the authorisation of the said person. In doing so, he committed another offence'.
   
9. The contention of the prosecution is that the accused misrepresented himself to the complainant via social network. He used the name of Deepak Shivnil on his own photo and other details. The intention of the accused would have been to use the driver's licence of actual Deepak Shivnil. However there is no evidence provided to conclude that the accused modified the social network site of actual Deepak Shivnil.
   
10. Section 340(1) (a) (2) states 'any unauthorised modification of data held in a computer' is an offence. The statute clearly requires modification of 'held data' which in my view is the data that had already been entered in to a computer by some third party. The section does not cover people who create fake profiles in social networking sites. It is there to prevent people who 'hack in' to other person's data in computers and network systems.
    
11. Having considered the said circumstances the Court vacates your guilty plea for the second count. Further it notes that the given facts constitute an offence of 'Personation' against the accused, and he can be convicted lawfully under section 160(2) of the Criminal Procedure Decree 2009. However the Court has discretion under the section and in this instance it is used in favour of the accused person's rights.
    

Tariff for Count - 1

12. The offence of 'Obtaining Financial Advantage by Deception' carries a maximum sentence of 10 years imprisonment. In the case of State v Atil Sharma HAC 122 of 2010L Hon. Justice Madigan identified a tariff of 2 to 5 years for the cases of 'Obtaining Financial Advantage by Deception'.
    
13. The Court notes that you misrepresented via a social networking site to obtain money from the complainant. Therefore it cannot be considered as a trivial offence.
    
14. The Court therefore takes 1 year as the starting point for the offence.
    

Aggravating Factor

15. The offending is aggravated from your conduct to use actual Deepak Shivnil's driver's licence. It is evident that you planned this offence for a period of time. There was evidence to prove that you scratched and distorted the licence for it to look vague in order to use it for obtaining money.
    
16. The sentence is increased by another year to reflect the aggravating factor. Now the sentence stands at 2 years.
    
17. Your early guilty plea to save Court's time and resources takes one third of your sentence off. I will now reduce 8 months for your timely plea. Therefore your sentence is now 1 year 4 months.
    
18. Submitted personal circumstances states that you are 23 years old; working as a salesman; looking after the sister as mother passed away recently. Further you did not evade the legal process and the investigations but co-operated with them. Also the prosecution confirmed that you have paid back the amount in full to the complainant and therefore no actual monetary loss occurred.
    
19. Further concession of 4 months given in order to reflect above personal circumstances.
    
20. That leaves your final sentence at 1 year.
    
21. The Court has powers under the Sentencing and Penalties Decree 2009 to suspend any imprisonment term less than 2 years. You submitted that you are a first offender at an age of 23. The legal framework always encourages the court to consider imprisonment terms on an offender as the last resort.
    
22. On the other hand it is important to deter offenders who affect adversely on the other person's rights and financial status by using internet and social networking systems. It is not difficult for an offender to create a fictitious person who only exists on a web page to deceive another to achieve his ulterior motives.
    
23. At this juncture it is important to note the option of imposing a suspended sentence on an accused person. A suspended sentence is also considered as a term of imprisonment. The difference is that the offender serves the sentence while attending to his day to day work. The offender is bound for not to commit any other offence during the operational period. Any subsequent find of guilt will result him or her to serve the sentence which was suspended by the Court. It can also be considered as a period of rehabilitation to a first offender, where the Court and the law enforcement authorities will have constant monitor on him.
    
24. Having considered your young age and other circumstances this Court concludes that a suspended sentence is most appropriate in the instance.
    
25. Accordingly Roneel Ravneel Lal your final sentence states as follows,
    

Count 1 - one year imprisonment,

• The sentence is suspended for 3 years.
  

26. As stated early, any breach of the suspended sentence would be a ground for a separate prosecution against you.
    
27. I now invite the prosecution to reconsider the facts of the second count and submit whether they pursuit on this further.
    
28. Twenty eight [28] days to appeal.
    

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

18th January 2013