State v Khan [2016] FJMC 4; Criminal Case 1624.2009 (20 January 2016)

IN THE MAGISTRATES' COURT OF FIJI
AT SUVA

Criminal Case No: - 1624 /2009

STATE

V

ASLEEM KHAN

Counsel : Ms.J.Prasad for the State
Mr.M.A.Khan for the Accused

Date of Sentence: 20th of January 2016

SENTENCE

1. ASLEEM KHAN , you were convicted after a trial for one Larceny by Servant contrary to section 274(a) (1) of the Penal Code, 11 counts of Forgery contrary to section 341(1) of the Penal Code, 11 counts of Uttering forged documents contrary to section 343 of the Penal Code and 11 counts of Obtaining money on forged documents contrary to section 345 of the Penal Code.
   
2. During the hearing the prosecution proved beyond reasonable doubt that whist serving as a teller officer of Colonial National Bank (presently BSP) on 11 different occasions you forged the signature of the complainant on bank slips and using the forged bank slips obtained monies from her son's account. Further it was proved you stole $50.00 that belonged to the bank.
   
3. Both parties have filed their submissions as directed by this Court and supplementary mitigation submission was filed yesterday with character reference of the accused. I have considered all these for this sentence. I would also like to thank the state counsel for assisting this Court with the tariff for these offences.
   

LARCENY BY SERVANT

4. The maximum sentence for larceny by servant under the Penal Code is 14 years imprisonment.
   
5. In the State v Roberts [2004] FJHC Crim. App. No. 53J of 2003S, 30 January 2004 the High Court considered various cases dealing with larceny by servant and stated:
   

"In Barrick, the appellant, who has held a position of trust in a finance company, has stolen £9000. He pleaded not guilty and was found guilty. He was sentenced to two years imprisonment. On appeal he asked for suspension of his sentence. The Court of Appeal held that in breach of trust cases, a term of immediate imprisonment was inevitable except in exceptional circumstances. Relevant matters were the quality and degree of trust abused, the period of defrauding, the use to which the money was put, the effect on the victim, the impact on the public, the effect on the offender, any delay between discovery and trial, and the offender's personal history. The Court found that the 2 year term imposed was too lenient saying that a term of up to 18 months imprisonment was appropriate for the theft of amounts up to £10,000, 2 to 3 years imprisonment for the theft of amounts between £10,000 and £50,000 and terms of 3 ½ to 4 ½ years for thefts of more than $50,000.

6. The Single Judge of the Court of Appeal in the case State v Deepak Kapoor [2004] FJCA Crim. App. No. AAU 29 of 2012, 2 June 2014 stated that the "tariff for larceny by servant is between 2 and 3 years imprisonment as established by Panniker v State Cr. App No. 27 of 2000 and State v Roberts Cr. App No. 53 of 2003".
   

FORGERY

7. The maximum sentence for Forgery contrary to Section 341(1) of the Penal Code is 2 years imprisonment (47 of the Penal Code).
   
8. In the case of State v Tomasi Kesi [2009] FJHC Crim. Case No. HAC 24 of 2009, 22 July 2009, the High Court when sentencing an offender for forging withdrawal slips of ANZ Bank stated:
   

"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. 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)".

UTTERING A FORGED DOCUMENT

9. The maximum sentence for uttering a forged document under the Penal Code is the same as the punishment for forgery of the same document, which in this case is 2 years imprisonment.
   

OBTAINING MONEY BY VIRTUE OF FORGED DOCUMENT

10. The maximum sentence for obtaining money on a forged document contrary to Section 345 of the Penal Code is 14 years imprisonment.
    
11. In State v Shalendra Sen Sinha [2010] FJHC Crim. Case 46 of 2008, 29 October 2010, Justice Goundar identified the tariff for obtaining money on a forged document to be 18 months to 5 years imprisonment. He further commented:
    

"The tariff for obtaining property using forged document range from 18 months to 5 years imprisonment, with suspended sentences reserved for cases where there has been full restitution as indication of remorse. In a recent case of Etuate Suguturaga HAC043 of 2009L, Madigan J sentenced the offender to a term of 5 years imprisonment for obtaining six brush cutters by virtue of a forged cheque. His Lordship at paragraph 9 said:

"Obtaining goods on a forged instrument must stand outside the forgery and the uttering even though it is an offence part and parcel with the forgery. To defraud a commercial enterprise by way of a false document is very serious, especially in the present fragile economic climate. The sanctity of day-to-day commercial transactions must be protected".

12. AGGRAVTING FACTORS
    
    1. Breach the trust of his employer;
    2. The accused said in his evidence that he was in a relationship with the complainant. Therefore by committing these offences he also betrayed the trust placed by the complainant;
    100. These were committed for period of time and seems to be premeditated;
    4. Even after found guilty by the Court the accused still maintains his innocent which clearly shows his lack of remorse.
       
13. MITIGATING FACTORS
    

In his mitigation submission the counsel for the accused submitted the following grounds:

1. 40 years old,married with 2 children;
2. Sole bread winner;

100. First offender;

4. Looking after his mother;
5. Remorseful.
   

14. From the above grounds I find past good behavior of the accused is not a real mitigating factor in breach of trust offences. Further as correctly pointed out by the State counsel even though the accused submits that he is remorseful it was not present throughout the hearing and even at the mitigating stage his denial of the offences contradict that . But I will give some credit for his personal mitigating factors.
    
15. Considering the gravity of offending for the offence of Larceny by Servant and each count of Obtaining Money on a Forged Documents I select 22 months as my starting point and add 12 months for aggravating factors to reach 34 months imprisonment. For limited mitigating factors I deduct 04 months to reach 30 months imprisonment.
    
16. Based on aggravating and mitigating factors I sentenced the accused to 16 months imprisonment for each count Forgery and Uttering Forged Documents.
    
17. Further considering totality principle I order these to be concurrent to each other.
    
18. When the employees of financial institutions betrayed the trust by engaging in frauds a custodial sentence is warranted to denounce their behavior as well as to deter others from engaging in these practices. These are the main purposes of this sentence.
    
19. Accordingly I sentenced you to 30 months imprisonment for these offences. Also I fix a non-parole period of 24 months pursuant to section 18 of the Sentencing and Penalties Decree.
    
20. 28 days to appeal
    

Shageeth Somaratne
Resident Magistrate, Suva