State v Singh [2018] FJMC 29; Criminal Case 470.2016 (28 March 2018)

IN THE MAGISTRATES COURT OF FIJI

AT NAUSORI

Criminal Case No: - 470 /2016

STATE

V

VINESH KUMAR SINGH

Counsel: Mr.T.Tuenuku for the Prosecution

Mr. M.Young for the Accused

Date of Sentence : 28^th of March 2018

SENTENCE

1. VINESH KUMAR SINGH, you were convicted after a hearing to one count of Conversion contrary to section 319 (1) (c ) (i) (ii) of the Crimes Act No44 of 2009( “ Crimes Act”).
2. During the hearing the following facts were proved by the prosecution. You had an agreement with the complainant (Genexis Ltd) to hold their industrial parts, sell them and deposit the money to their bank account. Instead of following that agreement you sold the properties and used the monies to your own personal use. During the May and September 2015 you sold the industrial parts to the total value of $128,613.70 and used those monies to your own personal use. Up to now there is no restitution from your part.
3. The maximum penalty for this offence is 07 years imprisonment under the Crimes Act.
4. In Shane Raymond Heatley v. The State HAA003/05, Pain J said:

"These cases show that on a plea of guilty of obtaining money by fraud a sentence of 4 years imprisonment is likely for the most serious type of case (see dicta in Vishwajit Prasad v. State App. 23 of 1993). However aggravating circumstances may warrant a greater sentence (Anil Kumar v. R). If the amount involved is small a short period of imprisonment is appropriate (see Mara Kapaiwai v. R – albeit on a plea of guilty). Otherwise sentences imposed in these reported cases have ranged from 15 months to 2½ years imprisonment.”

5. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) his Lordship Justice Goundar discussed the guiding principles for determining the starting point in sentencing in the following manner :

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this stage. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range."

6. Considering the above judicial precedents and based on an objective seriousness of this offence, I select 24 months as the starting point for your sentence.
7. You converted $128,613.70 for your personal use which is quite substantial. This was committed for some period of time. I consider these as aggravating factors and add 12 months to your sentence to reach 36 months imprisonment.
8. In mitigation your counsel submitted the following :
   1. You are 44 years old;
   2. Married with children and supporting the extended family;
   100. First offender;
   4. You co-operated with the police;
   5. Prepared to make restitution of $250.00 monthly.
9. This is a breach of trust offence and in my view little weight can be given for the character of the accused even though he is a first offender. In State v Bole her Ladyship Justice Shameem said: “In breach of trust cases, comparably less weight is put on good character, because only people of good character are given positions of trust and responsibility. It is the breach of trust which is the harm done in these offences. “
10. Accordingly I find you are not entitled for any credit for your past good behavior.
11. You are willing to restitute this amount only after you have been convicted and that is also in monthly instalment of $250.00.
12. In Sauleirogo v State [2018] FJHC 91; HAA122.2017 (21 February 2018) his Lordship Justice Sharma said :“Restitution before a case comes to Court may well be of some benefit to an accused in mitigation but restitution during the Court process sends a message of solicitation to a lenient sentence.”
13. Accordingly I find your undertaking at this stage about restitution is only a way to escape punishment and not moved by genuine remorse from your part. Hence I disregard this also as a mitigating factor in your favor.
14. But for other mitigating factors I deduct 05 months to reach 31 months imprisonment.
15. You have been in remand for this case from 28/02/2018 and pursuant to section 24 of the Sentencing and Penalties Act I deduct this period to reach 30 months imprisonment.
16. In State v Raymond Roberts ( HAA0053 of 2003S), her Ladyship Justice Shameem held that :" the principles that emerge from these cases are that a custodial sentence is inevitable where the accused pleaded 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".
17. VINESH KUMAR SINGH, you were entrusted by the complainant to sell the industrial parts and deposit the monies in to their account. You grossly breached the trust by selling the properties for your benefit and defrauded the victim of $128,613.70. Only now you are trying to escape the punishment by trying to pay this amount in $250.00 monthly instalments which would take nearly 514 months (42 years) to complete. Hence to denounce your behavior and to punish you for this offence I sentence you to 30 months imprisonment with a non-parole period of 20 months.
18. 28 days to appeal

Shageeth Somaratne

Resident Magistrate