State v Williams [2016] FJMC 112; Criminal Case 95 of 2015 (9 August 2016)

IN THE MAGISTRATE’S COURT AT SUVA

CRIMINAL DIVISION

Criminal Case No. 95/15

The State –v- Karen Edith Georgetta Williams

For the State: Ms. Chowdhury

For the Accused: Mr. Young/Mr. Gounder

SENTENCE

Karen Williams you have pleaded guilty to the following offences on the amended charge: -

- Larceny and Embezzlement by Servant contrary to section 274 (a) (i) of the Penal Code
- Theft contrary to section 291 (1) of the Crimes Decree
- Making a False Statutory declaration contrary to section 180 (a) of the Crimes Decree

The facts are that between March 2009 and February 4^th 2010 you were employed as a clerk by Hammerhead Plate Aluminum Boat Limited. In that period of employment you embezzled the amount of $2, 922.85 belonging to your employer. You did so by manipulating data on the company’s payroll system.

From the 11^th of February 2010 to the 6^th of June 2014 you stole the total of $112, 248. 22 belonging to Hammerhead Plate Aluminum Boat Limited by manipulating the company’s pay roll system with the intention of permanently depriving your employer of the said property.

On two separate occasions – the 10^th of February 2013 and 17^th February 2014 you knowingly and willfully made a statement, false in a material particular, that you were the manager of Hammerhead Aluminum Boat Limited and the statement was in a statutory declaration.

The losses were discovered by the Director of the company and this was reported to the police and after investigations were completed you were questioned under caution from the 22^nd to the 30^th of November 2014. You admitted to the offences and you were subsequently charged and produced in Court.

There was no recovery of any of the stolen amount.

You have entered a guilty plea and you also admit the summary of fact as outlined. I have examined your plea and find that the plea is unequivocal therefore I convict you on all 4 counts.

You are a first offender and counsel has offered the plea in mitigation as follows: -

- You are 30 years of age, single and you come from a loving and supporting family.
- You submit that initially the offending was opportunistic and escalated
- You are a first offender and a person of previous good conduct
- This whole experience has taught you a valuable lesson and since then you have attempted to rehabilitate yourself.
- You have accepted responsibility for your actions and you promise that you will never set foot in Court again.
- You have attempted to make reparations but your former employers do not wish to entertain the same.
- You ask for a non custodial sentence.

The State has also filed sentencing submissions as follows: -

- The tariff for breach of trust cases such as Larceny by Servant ranges from 18 months to 3 years (State –v- Vatunalaba [2010] FJHC 99; HAC 143/2008S)
- The tariff for Theft has been confirmed in the case of State –v- Ratusili [2012] FJHC 1249; HAA011/2012 (1^st August 2012)

• (a) For a first offence of simple theft the sentencing range should be between 2 and 9 months
• (b) Any subsequent offence should attract a penalty of at least 9 months
• (c) Theft of large sums of money and thefts in breach of trust. Whether first offence or not can attract sentences of up to three years
• (d) Regard should be have to the nature of the relationship between offender and the victim

- There have been no tariffs set for the offence of Making a False Statutory Declaration the State recommends a tariff between 2 to 6 months.
- The State recommends an appropriately deterrent sentence for you as this was an offence of planning; there was no restitution and the offending constituted a gross breach of trust. These are aggravating factors for this offence
- You are a first offender and you have pleaded guilty – these are mitigating factors in your favour.

Sentencing Remarks

The maximum sentence for the offence of Larceny by Servant under the Penal Code is 14 years imprisonment. The offence of Theft attracts a maximum sentence of 10 years imprisonment while the offence Making a False Statutory Declaration attracts a maximum sentence of 1 year imprisonment.

The Court adopts the tariff set out by the State as these are the set tariff for Larceny by Servant and for Theft.

In sentencing you the Court notes that the offending occurred over a period of 5 years. You were an employee in a position of trust and you exploited that position to offend for your own personal gain. There was no restitution therefore the complainant continues to suffer loss. These are factors which aggravate the offending.

You have pleaded guilty and you are a first offender which means that you are a person of previous good conduct.

Prior to sentencing you the Court considers the provisions of section 4 (1) of the Sentencing and Penalties Decree which provides: -

“Sentencing Guidelines

4.—(1) The only purposes for which sentencing may be imposed by a court are—

(a) to punish offenders to an extent and in a manner which is just in all the circumstances;

(b) to protect the community from offenders;

(c) to deter offenders or other persons from committing offences of the same or similar nature;

(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) to signify that the court and the community denounce the commission of such offences; or

(f) any combination of these purposes.”

In this instance the Court must balance the aims of admonishing for the offence and deterring other likeminded offendersagainst the promotion of your personal rehabilitation.

Your personal culpability for these offences is high therefore the Court will adopt a starting point at the higher end of the tariffs for these offences.

For the first count I adopt a starting point of 3 years imprisonment and I add 3 years for the aggravating factors set out above. I deduct 2 years for your guilty plea and a further 1 year for your previous good conduct.

Karen Williams for the first count of Larceny and Embezzlement by Servant – I sentence you to 3 years imprisonment.

For the second count of Theft I adopt a starting point of 3 years imprisonment and I add 3 years for the aggravating factors. I deduct 2 years for the guilty plea and a further 1 year for your previous good conduct.

Karen Williams for the second count of Theft – I sentence you to 3 years imprisonment.

For the third and fourth count of Making a False Statutory Declaration I adopt a starting point of 4 months imprisonment and I add 2 months for the aggravating factors. I deduct 2 months for your guilty plea and 1 month for your previous good conduct.

Karen Williams for the third and fourth count of Making a False Statutory Declaration – I sentence you to 3 months imprisonment on each count.

Karen Edith Georgetta Williams this is your sentence: -

- Larceny and Embezzlement by Servant - 3 years imprisonment
- Theft – 3 years imprisonment
- Making a False Statutory declaration – 3 months imprisonment on each count

Each count is to be served concurrently and I order that you serve at least 30 months of your sentence before you can be eligible for parole.

28 days to appeal

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Usaia Ratuvili

Chief Magistrate

9^th August 2016