IN THE RESIDENT MAGISTRATE'S COURT
AT SUVA
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 1284/10

STATE

V.

EMELE YAVALA

Prosecution: Ms Jayneeta Prasad.
Accused: In person.

SENTENCE

1.	EMELE YAVALA you are now being sentenced for the offence of larceny by servant, contrary to Section 274 (a) (ii) of the Penal Code.

2. 	You have represented yourself. You were found guilty by this Court after a hearing.

3.	The maximum sentence prescribed under Section 274 (a) (ii) of the Penal Code for the offence of larceny by servant is imprisonment for 14 years.

4.	This Court has noted the sentencing precedents in larceny by servant cases. Justice Gates (as he then was) held in State v Kumar [2005] FJHC 477; HAC0005T.2005S (7 October 2005)"The tariff for medium scale dishonesty offences is 2-3 years imprisonment. For the worst cases, bearing in mind the need worldwide to curb corporate misgovernance and white collar crime, the tariff could well extend to 6 years".

The tariff for the serious fraud offences is 18 months to 4 years. ("Savenanca Labavuka v FICAC (2009) FJHC 119, State v Isimeli Drodroveivali (Unreported) Suva High Court Cr. Case No HAC007.2002S,Panniker v State (2000)FJHC 156, Sate v Roberts (2004)FJHC 51,). Pain J in Shane Raymond Heatley v. The State (HAA0003.1995) held that "These cases show that on a plea of guilty of obtaining money  by  fraud a sentence  of 4 years imprisonment is likely for the most serious type of case (see dicta in Vishwajit Prasad v. State App. 23 of 1993). However aggravating circumstances may warrant a greater  sentence  (Anil Kumar v. R). If the amount involved is small a short period of imprisonment is appropriate (see Mara Kapaiwai v. R – albeit on a plea of guilty). Otherwise  sentences  imposed in these reported cases have ranged from 15 months to 2 ½ years imprisonment."

5.	Having noted the maximum sentence and the sentences imposed by the various Court's for similar offence this Court takes a starting point of 18 Months imprisonment for the offence you have committed. The aggravating factors are the serious breach of trust and the systematic manner in which the thefts have been perpetuated over that period of time. For the aggravating factors this court adds 6 months.

6.	In your mitigation you have stated the following:

- you are 42 years old.
- married with 6 children.
- unemployed and husband is a military officer.
- you sought 3 months time to repay.

For your mitigation this court gives 4 months discount. You are a first offender, but that is expected for persons in trust and in position like yours, nevertheless, this Court gives you 2 months discount for your previous good character. 

7.	Theft by persons in position of trust is prevalent in Fiji. It is imperative that potential offenders and the public at large understand that such action and breach of trust by persons in position of trust will be met with stiff penalties. For the foregoing reasons this Court will not consider suspending the sentence and impose a custodial sentence. Furthermore no restitution has been made to-date. 

8.	EMELE YAVALA you are now sentenced for committing the offence of larceny by servant, contrary to Section 274 (a) (ii) of the Penal Code for a term of imprisonment of 18 Months.

9.	Any party that is not satisfied with the sentence of this Court has the right to Appeal to the High Court within 28 days from the date of this Sentence.

Chaitanya Lakshman
Resident Magistrate
28th June 2013