State v Sinha [2013] FJMC 322; CF1600.12 (25 July 2013)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. 1600 of 2012

THE STATE

–V-

LAWRENCE JITENDRA KUMAR SINHA

For the State: CPL Dickson
For the Accused: Mr. Nandan

SENTENCE

1. LAWRENCE JITENDRA KUMAR SINHA, you were charged with 16 counts of THEFT Contrary to section 291 (1) of the Crimes Decree Number 44 of 2009; 16 counts of DISHONESTLY CAUSING A LOSS Contrary to section 324of the Crimes Decree Number 44 of 2009and the particulars of offence are as follows;
   

Count 1

"On the 12th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $61.35 cash the property of Newman Limited."

Count 2

"On the 12th day of October, 2012 at Suva, in the Central Division, obtained $61.35 with the intention of dishonestly causing a loss of $61.35 cash to Newman Limited."

Count 3

"On the 15th day of October, 2012 at Suva, in the Central Division, obtained $1,095.00 with the intention of dishonestly causing a loss of $1,095.10 cash of Newman Limited."

Count 4

"On the 15th day of October, 2012 at Suva, in the Central Division, obtained $1,095.00 with the intention of dishonestly causing a loss of $1,095.10 cash of Newman Limited."

Count 5

"On the 19th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $1,353.60 cash the property of Newman Limited."

Count 6

"On the 19th day of October, 2012 at Suva, in the Central Division, obtained $1,353.60 with the intention of dishonestly causing a loss of $1,353.60 cash of Newman Limited."

Count 7

"On the 14th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $2,225.84 cash the property of Newman Limited."

Count 8

"On the 14th day of September, 2012 at Suva, in the Central Division, obtained $2,225.84 with the intention of dishonestly causing a loss of $2,225.840 cash of Newman Limited."

Count 9

"On the 13th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $610.99 cash the property of Newman Limited."

Count 10

"On the 13th day of October, 2012 at Suva, in the Central Division, obtained $610.99 with the intention of dishonestly causing a loss of $610.99 cash of Newman Limited."

Count 11

"On the 19th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $432.41 cash the property of Newman Limited."

Count 12

"On the 19th day of October, 2012 at Suva, in the Central Division, obtained $432.41 with the intention of dishonestly causing a loss of $432.41 cash of Newman Limited."

Count 13

"On the 20th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $375.14 cash the property of Newman Limited."

Count 14

"On the 20th day of October, 2012 at Suva, in the Central Division, obtained $375.14 with the intention of dishonestly causing a loss of $375.14 cash of Newman Limited."

Count 15

"On the 05th day of September, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $877.60 cash the property of Newman Limited."

Count 16

"On the 05th day of September, 2012 at Suva, in the Central Division, obtained $877.60 with the intention of dishonestly causing a loss of $877.60 cash of Newman Limited."

Count 17

"On the 10th day of September, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $263.26 cash the property of Newman Limited."

Count 18

"On the 10th day of September, 2012 at Suva, in the Central Division, obtained $263.26 with the intention of dishonestly causing a loss of $263.26 cash of Newman Limited."

Count 19

"On the 13th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $1,099.64 cash the property of Newman Limited."

Count 20

"On the 13th day of October, 2012 at Suva, in the Central Division, obtained $1,099.64 with the intention of dishonestly causing a loss of $1,099.64 cash of Newman Limited."

Count 21

"On the 15th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $23.51 cash the property of Newman Limited."

Count 22

"On the 15th day of October, 2012 at Suva, in the Central Division, obtained $23.51 with the intention of dishonestly causing a loss of $23.51 cash of Newman Limited."

Count 23

"On the 16th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $5.58 cash the property of Newman Limited."

Count 24

"On the 16th day of October, 2012 at Suva, in the Central Division, obtained $5.58 with the intention of dishonestly causing a loss of $5.58 cash of Newman Limited."

Count 25

"On the 17th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $441.63 cash the property of Newman Limited."

Count 26

"On the 17th day of October, 2012 at Suva, in the Central Division, obtained $441.63 with the intention of dishonestly causing a loss of $441.63 cash of Newman Limited."

Count 27

"On the 19th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $122.95 cash the property of Newman Limited."

Count 28

"On the 19th day of October, 2012 at Suva, in the Central Division, obtained $122.95 with the intention of dishonestly causing a loss of $122.95 cash of Newman Limited."

Count 29

"On the 11th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $730.26 cash the property of Newman Limited."

Count 30

"On the 11th day of October, 2012 at Suva, in the Central Division, obtained $730.26 with the intention of dishonestly causing a loss of $730.26 cash of Newman Limited."

Count 31

"On the 11th day of October, 2012 at Suva, in the Central Division, dishonestly appropriated (stole) $2.79 cash the property of Newman Limited."

Count 32

"On the 11th day of October, 2012 at Suva, in the Central Division, obtained $2.79 with the intention of dishonestly causing a loss of $2.79 cash of Newman Limited."

2. You were convicted of the charge on your own plea of guilty.
   
3. The summary of the facts of the case that was submitted by the prosecution and admitted by you are as follows;
   

On 24/10/2012, at about 1415hrs at Central Police Station, RITESHWAR PRASAD Credit Controller, of Lakena Nausori and SAGARA WICKREMASINGHE Finance Manager, of Lot 25 Bakshi Street, Samabula, both of Newman Limited, reported that one of their staff namely LAWRENCE SINHA [Accused] misappropriated funds of about $9,696.49.

On 11/10/2012, MITESH KUMAR Accountant of 23 Huon Street, Toorak and [Accused] Sales Representative of above company were supposed to collect cash of $4,550.00 from one of their customers namely Yoyo's Stores for the E-PAY recharge cards which the company supplied. [Accused] gave excuses to Mitesh Kumar that he is busy and they can collect later. On various occasions Mitesh Kumar requested [Accused] to accompany him for the collection as they were only assigned by their company for cash collection but [Accused] gave excuses.

On 18/10/2012 Mitesh Kumar, himself went to Yoyo's Stores and was informed that Lawrence has already collected cash of $4,550.00 on 11/10/2012. Mitesh Kumar then questioned [Accused] whereby he gave cash of $4,550.00 to Mitesh Kumar who then deposited the money in Newman Limited account and informed Riteshwar Prasad and Sagara Wickremasinghe about the incident.

On 23/10/2012 an Audit was requested by the Chief Finance Controller of CJ Patel Group of Companies, which is the parent of Newman Limited and LOIMATEIWAIAuditor of CJ Patel Group of Companies, of Lot 5 Tadevu Place, Muanikoso did the Audit and the total of $9,598.95 was misappropriated by [Accused] from 5/9/2012 to 20/10/2012 from Eight (8) different customers of Newman Limited.

On 6/11/2012 at about 0945hrs at Central Police Station DC 2774 SUBHI RAJ arrested and interviewed under caution Lawrence Jitendra Kumar Sinha [Accused] Sales Representative of Lot 35 Matu Street, Nepani whereby the he admitted the Theft of money and used it for his personal use to the total of $9,598.95.

The [Accused] has 2 stale previous convictions and therefore deemed to be a first offender.

4. Learned Counsel tendered written mitigation submission on your behalf which states inter alia as follows; that you are;
   

35 years of age; married and have 02 children; currently you are a taxi driver, wife also works and earns $600.00,but income not sufficient. Your father has been suffering stroke and his medical expenses is $400.00 per month. You have understood the gravity of the offence; apologized to the complainant. Seek leniency; seek non-custodial Sentence as a custodial Sentence won't serve the purpose as you wanted to pay back.

5. Statutory Indication
   

Theft: Contrary to section 291 (1) of the Crimes Decree Number 44 of 2009
Theft

Section 291 (1) of the Crimes Decree No.44 of 2009 provides;

A person commits a summary offence if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the property.

The offence of theft carries a maximum sentence of 10 years imprisonment.

Tariff

It was held in Tikoitoga v State (2008,FJHC 44, HAM 088 2007) the Tariff for larceny is 18 months to 2 years. Learned Judge Daniel Gounder held in State v Vatunalaba (2010, FJHC 99; HAC 134.2008) that the tariff for theft offences arising from breach of trust range from 18 months to 3 years imprisonment. Suspended sentences are reserved for cases where the offenders have shown remorse or the value of the property is small.

But Justice Shameem said in Saukilagi: "The tariff for simple larceny on first conviction is 2 to 9 months and on second conviction a sentence in excess of 9 months. In cases of larceny of large amounts sentences of 1.5 years and 3 years have been upheld by the High Court (Sevanaia ViaKoroi HAA 31 of 2001). Much depends on the value of the money stolen and the nature of the relationship between the victim and the Defendant – the method of stealing is also relevant."

Dishonestly Causing A Loss: Contrary to section 324of the Crimes Decree Number 44 of 2009

According to Section 324 of the Crimes Decree Number 44 of 2009 provides;

(1) A person commits a summary offence if he or she does anything with the intention of dishonestly causing a loss to another person.

The maximum sentence for Dishonestly Causing a Loss is 5 yemprisonment.

Tariff

Dishonestly Causing a Loss is a new offence under the Crimes Decree and this Court notes that the Tariff yet to bermined.

6. Aggravating Fs
   

l>

According to the information revealed by the Summary of Facts placed before court,

(a) Accused broke fidelity and breached trust of the employer.
(b) There was planning involved in the committal of these offences.
(c) Repeated the offence without any remorse.

7. Sentence
   

In sentencing you the Court acknowledges the factors:

1. Pleaded Guilty at the first reasonable opportunity to save the Court's time and Prosecution's time in calling witnesses for a full trial.
   
2. Deemed to be a first offender.
   
3. Remorseful for your actions.
   
4. Mitigation and personal background.
   

In the light of Sentencing Guidelines under section 4 (1) and 4 (2) and General Sentencing Provisions under section 15 (3) of the Sentencing and penalties Decree I consider an appropriate sentences on you.

In all the circumstances of this case, considering above mentioned legal precedents and all the circumstances' of the case, I Sentence the Accused LAWRENCE JITENDRA KUMAR SINHA as follows for,

Count 1,3,5,7,9,11,13,15,17,19,21,23,25,27,29,31; Upon considering above mentioned legal precedents on Tariff for the offence of Theft, I select 24 months as a starting point for your sentence.

In view of aforementioned aggravating factors I increase 06 months, considering your early guilty plea in the first available opportunity I reduce 10 months and I further reduce 03 months for the mitigating factors. I note that you deemed to be a first offender, therefore you are entitled for further discount for your previous good character thus I deduct 05 months.

Accordingly, I sentence you 12 months [01 year] imprisonment period for the 16 counts of Theft Contrary to section 291(1) of the Crimes Decree Number 44 of 2009.
Count 2,4,6,8,10,12,14,16,18,20,22,24,26,28,30,32.
For the above 16 Counts, I select 12 Months as a starting point for your sentence, For the guilty plea on the first reasonable opportunity the Court gives 04 months discount and add 06 months for the aggravating factors. Further I deduct 03 months discount for your mitigation. I also deduct 03 months for your mitigation. Now your sentence reaches to 08 months.

Accordingly, I sentence you 08 months imprisonment period for the 16 counts of Dishonestly Causing A Loss Contrary to section 324of the Crimes Decree Number 44 of 2009.

All the counts of both charges to be served concurrently.

Section 26 (2) (b) of the Sentencing and Penalties Decree provides a sentence which is below two years could be suspended by this court. Now, this court has to determine the imprisonment periods to be suspended or not.

You are deemed to be a first offender and remorseful for your actions. I note that you have attempted to pay back the amount you have stolen voluntarily. I am of the view of that you should not be sentence to imprisonment and to be given an opportunity to rehabilitate and reform away from a custodial sentence. Considering all the circumstances of this case, I suspend the imprisonment periods for 03 years.

In pursuant to section 28 of the Sentencing and penalties Decree, if you commit any crime during suspended and found guilty to by the court you are liable to be charge and prosecute for an offence.

Further the court orders you to pay the total amount you have stolen from the complainant as restitution within three months. I am mindful of the sections 50 and 51 of Sentencing and Penalties Decree and this order will have no effect on the complainant's right to file civil litigation against you.

28 days to appeal.

Review: 03/09/13.

--------------------------
Lakshika Fernando
Resident Magistrate

On this 25thday of July 2013.