State v Laliqavoka [2016] FJMC 187; Criminal Case 592.2015 (29 September 2016)

IN THE MAGISTRATE’S COURT of Fiji

AT SUVA

Criminal Case No 592/15

STATE

-v-

ELENOA YALEWANIMAGO LALIQAVOKA

SENTENCE

1] The following charge was read out to you and understanding the contents you pleaded guilty to the same on your own free will. Accordingly you are convicted to the following charge.

FORGERY: Contrary to Section 156(1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

ELENOA YALEWANIMAGO LALIQAVOKA on the 29th day of December 2014 at Suva in the Central Division falsified a letter under a Ministry of Industry, Trade and Tourism letterhead with the intention to use it at the Suva Family Court.

2] Summary of facts revealed that you have forged a letterwhich contained an approval for you to be attached to the permanent staff with the salary of $30,00 per annum by the Ministry of Industry, Trade and Tourism under its letterhead with the intention to use it at the Suva Family Court. You were still on attaché for three months.Shaheen Ali, Permanent Secretary for the Ministry of Industry Trade and Tourism confirmed that the letter was not written and signed by him. Summary of facts further revealed that you admitted that you did this as you have got a family court case with your divorced husband and if the divorced husband file any application for the custody of their children then you will submit the said letter to the family court just to secure the job to be in a position to keep the custody of children.

3] In terms of Section 156 of the Crimes Decree the maximum penalty for this offence is Imprisonment for 10 years.

4] In State vChaudary [2008] FJHC 22; HAC 69.2007, 70.2007 & 71.2007 (19 February 2008) it was held that;

“For Forgery, the average sentence for a first offender is 1 year imprisonment, however, a 3 year sentence was imposed in Hu Jung Yun v The State [2005] HAA 024 of 2005. In Vinod Prasad v The State [1996]HAA 55 of 1996, a 3½ years imprisonment was reduced to 2 years on the principle should not lose hope of changing his life;

In Hu Jun Yun v The State [2005] FJHC 93; HAA0024J.2005S (26 April 2005) it was held that;

“tariff for fraud cases ranged from eighteen months to four years imprisonment, with four years’ imprisonment reserved for the worst type of offending.”

Daniel Goundar J in State v Kesi [2009] FJHC 145; HAC024.2009 (22 July 2009) stated that ;

“The tariff for fraud offences is 18 months to 3 years imprisonment (State v. Saukilagi HAC 21 of 2004S). Suspension of sentence is only considered where an early restitution is made as true expression of remorse and not just an attempt to buy one’s way out of prison (State v. Cakau HAA125 of 2004S).”

In Sudhakar v State [2014] FJHC 688; HAA16.2014 (22 September 2014) Sudharshana De Silva J said that the correct tariff for the Forgery and Uttering False Documents now is 3-6 years’ imprisonment. His Lordship referred to the comment in State v Prasad [2011] FJHC 218;CRC 024.2010 (19th April 2011) by His Lordship Mr. Justice Paul K. Madigan. It is reproduced here;

“Forgery of cheques and of an authority to transfer is punishable by a maximum penalty of fourteen years. The tariff for forgery has always been seen as between eighteen months to three years imprisonment depending on the circumstances of the case. It is the Court's view that this tariff having been in place for many years seriously needs to be revisited. In these lean economic times forgery , especially by those in positions of trust, is becoming far too prevalent and the forgery is usually the conduit to obtaining money or property by means of the uttering of the forged document."

"There is no reason now why the range for forgery should not be between 3 years and 6 years, with factors to be considered to be-

High gain-actual or intended

Whether the accused a professional or nonprofessional

Sophisticated offending with high degree of planning

Target individuals rather than institutions

Vulnerable victim."

However the maximum penalty for this case is not 14 years and the charges against the accused in State v Prasad was forgery of cheques of the employer. Therefore it has no application to this case. Accordingly I follow the tariff mentioned in In Hu Jun Yun v The State (supra) and in State v Kesi(supra)

5] I shall now proceed to consider your sentence to be consistent with the tariff, mitigating factors and aggravating factors.

6] I pick27 months’ imprisonment as the starting point. You have forged the signature of the Permanent Secretary for the Ministry of Industry Trade and Tourism who is your employer. You have admitted that you had an intention to be used that letter in a court of law. Considering these factors as aggravating factors I increase you sentence by 6 months to reach 33 months.

7] Since you have pleaded guilty at the first available opportunity, your sentence should be reduced by a third to reach 22 months in view of the judgment in VeretarikiVetaukula v The State , High Court Crim App Case No: HAA057/07 which followed Hem Dutt v The State , FCA Crim App Case No: AAU 0066 of 2005.

8] You have no previous convictions and showed your remorsefulness in writing. You have said that youhave done it to secure the custody of children with you. For your good character and remorsefulness I grant you 4 months discount from the current sentence. Hence your final sentence reaches 18 months imprisonment.

9] I shall now consider whether your sentence should be suspended. You have mentioned that you are looking after your 3 children after your divorce. You are the sole bread winner for the family.Sec. 15 (3) of the Sentencing and Penalties Decree 2009 states that

“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.”

I also rely on the judgment in State v. SereviSereki and KameliUlunikoro, Revision No. 7/90 No. 7/90 where both SereviSereki and KameliUlunikorowere sentenced to one year imprisonment for Shopbreaking and Larceny. His Lordship Tuivaga C.J., in ordering their immediate release from prison said:

"Young first offenders should not be sent to prison, unless there are compelling reasons to do so."

Taking into account the sentencing principles and the circumstances of this case I decide to suspend your sentence for 2 years.

If you commit any offence punishable by prison sentence during the next 2 years you can be charged under section 28 of the Sentencing and Penalties Decree.

In addition $150fine and 15 days imprisonment in default is imposed.

Summary of the Sentence;

1. 18 months imprisonment suspended for 2 years
2. $150 fine and 15 days imprisonment in default

28 days to appeal

PRIYANTHA LIYANAGE

RESIDENT MAGISTRATE, SUVA

29/9/2016