State v Pala [2018] FJMC 93; Criminal Case 260 of 2014 (5 October 2018)

IN THE MAGISTRATES’ COURT OF FIJI

AT NAUSORI

Criminal Case No: 260/2014

STATE

V

AJAY SHASHIKANT PALA

Counsel: Mr.Y.Prasad and Ms.S.Serukai (ODPP) for the Prosecution

Mr.K.Singh and Mr.Nawaikula for the Accused

Date of Judgment: 28th of September 2018

Date of sentencing submission: 01^st of October 2018

Date of mitigation: 04^th of October 2018

Date of sentence: 05th of October 2018

SENTENCE

1. AJAY SHASHIKANT PALA, you were convicted after a hearing to one count of Receiving Stolen Property contrary to section 306(1) of the Crimes Act No 44 of 2009(“Crimes Act”).
2. You are operating a jewelry shop called Radhe krishna in the Nausori town and apart from selling gold jewelries was also buying them from the public. According to the evidence one Delana came to your shop in February 2014 with some gold jewelry and you bought them from him. By the second day of his visit you were aware that this person was brining stolen jewelries but still continue to buy them and even encourage him to bring more from the complainant’s house. Even though you admitted buying only 20 pieces of gold jewelries , it was also shown during the hearing that you bought other jewelries to the total value of nearly $30,000- 40.000 during this time , the properties of the complainant . The current market price of these jewelries according to the one complainant is nearly $130,000.00. All these jewelries you melted and used for your business.
3. Maximum penalty for Receiving under the Crimes Act is 10 years imprisonment.
4. In State v Rigamoto [2018] FJHC 513; HAC158.2018 (18 June 2018) his Lordship Justice Riyaz Hamza accepted 1 to 3 years as the tariff for this offence.
5. In LaisiasaKoroivuki 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 time. 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.

6. Your counsel submitted that in State v Qarasumaki [2011] FJHC 283 for this offence the court selected 2 years as the starting point.
7. Instead of using that starting point suggested in your submission, considering the objective seriousness of the offence I select 16 months as the starting point for your sentence.
8. The State counsel in her sentencing submission submitted that the accused was encouraging Delana to get more jewelries, the high value of these properties and non-recoveries to be considered as aggravating factors in this case.
9. In my judgment I described that in the United Kingdom this offence is presently known as handling contrary to section 22 of Theft Act 1968.
10. In R v Bernard Webbe & Ors [2002] 1 Cr App R (S) 22 at 82 the Court of Appeal of England considered the aggravating factors for handling in the following manner :

“The sentencing panel, in paragraph 14, goes on to identify nine factors, which may be regarded as aggravating the offence. With each of those factors we agree. They are as follows:

1. The closeness of the handler to the primary offence. (We add that closeness may be geographical, arising from presence at or near the primary offence when it was committed, or temporal, where the handler instigated or encouraged the primary offence beforehand, or, soon after, provided a safe haven or route for disposal).

2. Particular seriousness in the primary offence.

3. High value of the goods to the loser, including sentimental value.

4. The fact that the goods were the proceeds of a domestic burglary.

5. Sophistication in relation to the handling.

6. A high level of profit made or expected by the handler.

7. The provision by the handler of a regular outlet for stolen goods.

8. Threats of violence or abuse of power by the handler over others, for example, an adult commissioning criminal activity by children, or a drug dealer pressurizing addicts to steal in order to pay for their habit.

9. As is statutorily provided by section 151(2) of the Powers of Criminal Courts (Sentencing) Act 2000, the commission of an offence while on bail.

11. In my view apart from an offence committed on bail all the other factors can be considered as aggravating factors when sentencing an accused for the offence of Receiving by sentencing courts in Fiji.
12. Now I would consider if these aggravating factors are present in this case.
    1. The closeness of the handler to the primary offence.- On the subject of closeness to the primary offence the Court of Appeal in Webbe (supra) agreed with the following extract from the Sentencing Panel’s advice:

“One important issue is whether the handler has had advance knowledge of the original offence, or has directly or indirectly made known his willingness to receive the proceeds of the original offence, as compared with a handler who has had no connection with the original offence but who has dishonestly accepted the stolen goods at an undervalue.”

The evidence shows at least by the second date the accused was aware that the Delana was stealing from the complainant’s house and he also encourage him to bring more gold jewelries from that place. He also informed that he was willing to buy these properties.

2. High value of the goods to the loser, including sentimental value.

It was shown value of these stolen properties were substantial and according to one complainant the jewelries in her jewel box was nearly $30,000-40.000.00 in 2014 and the present market price would have been nearly $130,000.00. Some of these jewelries were gifts that she received from her grandparents for her birthdays when she was small and got lot of sentimental values. All these were stolen from her place and the accused bought them and later melted them.

100. The fact that the goods were the proceeds of a domestic burglary.

The person who brought these properties to the accused was working as a house boy in the complainant’s house and broke in to the room of the complainant removing glasses in the door and stole these from cupboard and safe.

4. Sophistication in relation to the handling.

It was also shown that there was some planning from the part of the accused to hide his action. Whilst receiving these properties he kept a receipt book and was entering some goods that were supposed to be broken and had less value. But for the valuable properties he deliberately opted not to make any documents including receipts.

5. A high level of profit made or expected by the handler.

It was also shown that the accused were buying these properties underprice and he informed the court that this was because of the quality and the purity of the gold. But there is no mention about what happened to other jewelries he brought from Delana. Also all these jewelries he melted and used for his business. It can safely assume that instead of buying abroad or importing gold which could have costed more including taxes, this method would have allowed him to make substantial profit.

13. For all these aggravating factors I add 20 months to reach 36 months imprisonment.
14. In R v Bernard Webbe & Ors(supra) court further said : “ We also agree with the mitigating factors identified as being among those relevant by the sentencing panel: namely, low monetary value of the goods, the fact that the offence was a one-off offence, committed by an otherwise honest defendant, the fact that there is little or no benefit to the defendant, and the fact of voluntary restitution to the victim.

We also agree with the panel that other factors to be taken into account include personal mitigation, ready co-operation with the police, previous convictions, especially for offences of dishonesty and, as statutorily provided by section 152 of the Powers of Criminal Courts (Sentencing) Act 2000, a timely plea of guilty.

15. As shown above the value of the stolen goods were substantial and this was committed for some period. There were benefit for the accused and no voluntary restitution has been made so far in this case. There were not much co-operation by the accused and he did not plead guilty also. Hence most of the mitigating factors in R v Bernard Webbe & Ors( supra) are not available in this case .
16. The state counsel conceded that the accused has no previous conviction which would be a valid mitigating factor in this case.
17. In his written mitigation the counsel for the accused submitted the following personal mitigating factors :
    1. The accused is 45 years old;
    2. Run a business called Radne Krishna jewelry located in Nausori town for past 6 years;
    100. Married with 2 children;
    4. Supporting elderly parents;
    5. The accused was born in India and came to Fiji as foreign investor in 2010 and now a Fiji citizen;
       
18. The counsel for the accused further submitted that his client was remorseful. But in his mitigation he still not accepting his guilt and taking the same version he took in this hearing. Hence his remorse does not seem to be real in this case.
19. Further the accused is prepared to make restitution.
20. In Jocelyn Deo, HAA 0008 of 2005) her Ladyship Justice Shameem said:

“The issue is not just restitution, the issue is true and sincere remorse, an early guilty plea ad confession, and restitution to the victim as evidence of such remorse and apology”.

21. 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.”

22. I accept the right of the accused to defend in this case and proceed for a hearing and the amount that he has to restitute is substantial. Further I have remanded him for this sentence and it would be difficult to raise such a large amount within this short period. But the accused was convicted on 28^th September 2018 and he had more than sufficient time to make some arrangement to make some payments since his business is still functioning. Instead of that there were number of interlocutory applications he was making even after the judgment was pronounced. Even today there was an application for stay pending judgment which has been rejected by the court. Hence his willingness to pay this money now is way of escaping his punishment.
23. For his past good behavior and other limited mitigating factors I deduct 06 months to reach 30 months imprisonment.
24. Finally there is one issue that has not been addressed by both parties which I would like to consider in this sentence.
25. ARCHBOLD 2017 at 5-174 states :

In case involving substantial delay, it is the duty of a sentencing court, whether or not the matter has been raised on behalf of the defendant, to examine the possibility of a breach of the right to a fair trial within a reasonable time, in order to decide whether any such breach should have an effect on the disposal of the case, in deciding whether any delay constitutes a breach of the “reasonable time” guarantee, the three matters that fall to be considered are (i) the complexity of the case, (ii) the conduct of the appellant and iii) the conduct of the administrative and judicial authorities; and these factors are also relevant the question whether, when a breach has been established, there should be any adjustment of the sentence that would have been passed if there had been no delay Rummun v. State of Mauritius [2013] I W.L.R. 598, PC

26. This case has been pending in the court from 2014 and does not appear to be a complex matter. But the hearing dates previously fixed have to be adjourned due to matters beyond your control. Hence for this delay in concluding this matter I make some adjustment to your sentence and deduct 04 months to reach 26 months imprisonment.
27. In sentencing submission the state was asking for a sentence that would deter other business engaging in this kind of business.
28. Pursuant to section 4(1) of the Sentencing and Penalties Act, main purposes of a sentence are punishment, denunciation, protection of the community, deterrence (general and special) and rehabilitation.
29. Mr. AJAY SHASHIKANT PALA, In this case firstly this court needs to punish you and denounce your behavior. Your offending has directly led the victim from losing substantial value of jewelries including some with sentimental value. Even though the monetary value can be replaced with time these items can’t be recovered as you have melted them for your business.
30. I also need to deter you from offending in future. But I suspect this has been achieved up to some extent with this conviction which would also affect your reputation and business.
31. Most important consideration in this sentence are the General deterrence and protection of the community. This court must send a clear message to other businesses and especially jewelry shops in this country that might be minded to commit this sort of serious, offences for profit. Those contemplating that style of offending, must understand that this sort of conduct will be met with sizeable terms of imprisonment.
32. As long as the black market is available in the country the offences related to properties like theft, unlawful home invasions and robberies going to flourish. Hence people who handle these tainted properties need to be dealt with harsh sentences to protect the public and their properties.
33. Accordingly you are sentenced to 26 months imprisonment for this charge with a non- parole period of 20 months.
34. 28 days to appeal.

Shageeth Somaratne

sResident Magistrate