State v Tanoa [2015] FJMC 141; Criminal Case 1716.2014 (2 December 2015)

IN THE MAGISTRATES COURT AT SUVA

Criminal Case No. 1716/2014

STATE

-v-

SAKIUSA TANOA

Ms. Khan M.N for the State-DPP
The accused appeared in person

SENTENCE

1. You, Sakiusa Saunokonoko Vulimainiusiladi Tanoa, are here, to be sentenced on admission of guilt on your own accord for the following offence/charges namely:

First Count

LARCENY BY SERVANT: Contrary to Section 274 (a) (i) of the Penal Code Act 17.

2. The Particulars of Offence are as mentioned in charge sheet you Sakiusa Saunokonoko Vulimainiusiladi Tanoa between 25th February 2006 and 2 May 2007 at Suva in the Central Division being employed as a bulk Teller with ANX Bank stole $319,650.00 money belonging to ANZ Bank.

3. The Summary of Facts can be chronologically summarized as follows; Complainant: Rajas Swamy, Investigator, Divisional Investations Fiji at ANZ Bank, on behalf of ANZ Bank, Fiji.Accused: Sakiusa Saunokonoko Vulimainiusiladi Tanoa, 37 years old at the time of offence, was employed by ANZ Bank, Main branch located at Victoria Parade as a Bulk teller in 2006 and 2007.

The accused between 25th January 2006 to 2nd May 2007 was employed as a bulk teller at ANZ Bank, Main Branch. He was responsible for the ANZ Transit Account No. 71125304000009 which is used for transfer of cash between branches of ANZ and also transfers of cash to Reserve Bank. The accused was responsible for processing transactions upon receipt of physical cash from branches; the accused was to clear the funds within 3 to 4 days. The transit account should have a nil balance.The accused on 25th January 2006 conducted a vault payment of $560,000.00 and $75,000.00 a total of $635,000 to ANZ Bank. According to ANZ Bank Statement only $325,000 was received .the journal entry showed the breakdown of $250,000 and $75,000 and this was the cash draw payments that the accused had made on 25th January 2006.There was a total variance of $310,000.00. The passing of $560,000 entry on 25th January 2006 was done to conceal the difference of $310,000.00. Subsequently the accused carried further bogus entries which resulted in a total difference of $319,650.

The Transit Account had a difference in the branch reconciliation report a sum of $325,000 and this was known as a systematic error. An investigation was conducted by Mr. Narendra Kumar and it was revealed that it was not a systematic error, indeed the accused had processed adjustment entries in the system which had affected the transit account no. 711125304000009, and the actual difference was in the accused's cash drawer.

The matter was reported to police and further investigations commenced. There were no recoveries for the sum stolen. The accused was caution interviewed and in his caution interview the accused admitted to stealing $319,650 from ANZ Bank. He said at Q50 that he raised bogus entries and processed them in the system and with these bogus entries he managed to remove cash from his holdings. He confirmed at Q60 that the entries were made by him as his user number was 72045. The accused further stated that he sometimes took $2000 to $3000 on various occasions and the stolen money was used for his personal expenses. Caution interview attached as PE4.

The accused is charged with one count of larceny by servant Contrary to Section 274(a)(i) of the Penal Code [Cap 17), Charge statement attached as PE5.The accused has two previous conviction of larceny by servant.

4. Above facts have been understood and admitted by you before this court.

5. You were charged with 01 count of larceny by servant under section 274 (a) (i) of the Penal Code Act 17. This section says;

"274. Any person who-

(a) being a clerk or servant or person employed in the capacity of a clerk or servant-

(i) steals any chattel, money or valuable security belonging to or in the possession or power of his master or employer; or

(ii) fraudulently embezzles the whole or any part of any chattel, money or valuable security delivered to or received or taken into possession by him for or in the name or on the account of his master or employer; or

(b)...............

is guilty of a felony, and is liable to imprisonment for fourteen years."

6. Therefore, Maximum penalty could be imposed for these offences are 14 years imprisonment for each count.

7. In State v Mahendra Prasad [2003] FJHC 320; HAC0009T.2002S (30 October 2003), Justice Gates at paragraph 26 confirmed Barrick and stated that:

"The Court confirmed a tariff of between 2 to 3 years imprisonment for the medium range offences here where sums of between £10,000 [F$30,000] to £50,000 [F$150,000] were involved. It would not be usual to suspend the sentence in cases of serious breach of trust. A sentence of 2 years immediate imprisonment was upheld".

8. Further I am mindful of His Lordship Justice Pathik guidelines of sentencing in Panniker v State . his lordship has adopted the English Guidelines which was set in the case of John Barrick [1985] Cr when imposing sentences for larceny by servent cases. The guidelines are as follows:

(i) The quality and degree of trust reposed in the offender including his ranks;

(ii) The period over which the fraud of the thefts have been perpetrated;

(iii) The use to which the money or property dishonestly take was put;

(iv) The effect upon the victim;

(v) The impact of the offences on the public and public confidence;

(vi) The effect on fellow employees or partners;

(vii) The effect on the offender himself;

(viii) His own history;

(ix) Those matters of mitigation special to himself such as illness, being placed under grate strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial;

(x) Any help given by him to the police.

9. Further in State v Raymond Robert [2014] FJHC 51; Madam Shameem stated:

"The principles that emerge from these cases are that a custodial sentence is inevitable where the accused pleads not guilty and makes no attempt at genuine restitution. Where there is a plea of guilty, a custodial sentence may still be inevitable where there is a bad breach of trust, the money stolen is high in value and the accused shows no remorse or attempt at reparation. However where the accused is a first offender, pleads and has made full reparation in advance of the sentencing hearing (thus showing genuine remorse rather than a calculated attempt to escape a custodian sentence) a suspended sentence may not be wrong in principle. Much depends on the persona circumstances of the offender, and the attitude of the victim".

10. The Aggravating Factors are;

(i) You, at the time of the offence, were employed by ANZ bank. You were responsible for ANZ Transit Account 71125304000009 which was used to transfer cash between branches and also processing transactions upon receipt of physical cash from branches. you raised bogus entries which resulted in a difference of $319,650.00 with the bogus entries the accused was able to remove physical cash. This difference appeared as a systematic error. you were wholly culpable for committing the offence and it is serious breach of trust towards the employer.

(ii) As a result of this offence the victims, ANZ bank loss $319,650.00. The sums were excessive and not recovered. There was no restitution made by you to ANZ bank .

(iii) You have 2 previous conviction records for the similar offence. The use of the money or property which was dishonestly taken from bank. The use of the money was predominantly for personal use and benefit of you.

11. The Mitigating Factors are

(i) You have admitted the offence pleaded guilty at earliest opportunity.
(ii) Cooperated with the internal and police investigations.

12. I now draw my attention to sentencing principles which set out in Sentencing and Penalty Decree 2009.

Section 4(2) provides;"In sentencing offenders a court must have regard to —

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender's culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender's previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option."

13. In your submission, you have asked suspended sentence. I think this type of sentence is totally inappropriate and lenient considering the value and nature of offence. But I draw my mind to objectives of sentencing of an accused person which was set out in Sentencing and Penalty Decree 2009.

14. Section 15(3) of Sentencing and Penalties Decree 2009 No: 42 of 2009 says;

"As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part."

15. Among other things, one of main object of sentencing is to prevent another crime by same accused. You made no attempt for restitution. Custodial sentence are meant to repeat offenders who are incorrigibles.

16. Considering all these sentencing principles, I pick 7 years imprisonment for you. I add 2 year imprisonment for aggravating factors. Now your sentence is 9 years. For the early plea I reduced 3 years out of your sentence. Now your actual sentence is 6 years. You will serve this with 5 years non-parole period.

17. 28 days to appeal.

On 2nd December 2015, at Suva, Fiji Islands;

Neil Rupasinghe
Resident Magistrate