Bhajan v Reginam [1978] FJSC 43; Criminal Appeal 057 of 1978 (31 July 1978)

IN THE SUPREME COURT OF FIJI
Appellate Jurisdiction

Criminal Appeal No. 57 of 1978

Between:

RAM BHAJAN & RAM NARAYAN

and

REGINAM

JUDGMENT

On the 22nd June 1978 at Suva Magistrates Court the appellant was convicted on his own plea of eight offences of larceny by servant, contrary to section 306(a)(i) of the Penal Code and was sentenced to twelve months' imprisonment for each offence, the sentences to run consecutively, amounting to a total sentence of eight years' imprisonment.

He has appealed against the total sentence as being excessive.

The charge relates to a series of offences founded on the same facts and of the same character, and in such circumstances it is usual to impose concurrent sentences. As Lord Widgery C.J. has pointed out: "The reason for that is because if a man is charged with several serious offences arising out of the same situation and consecutive sentences are imposed, the total very often proves to be much too great for the incident in question." (R. v. Kastercum (1972) 56 Cr.App.R. 298 at 300). This is not a hard and fast rule and, where the offences committed although arising out of the same transaction are of a different character, entirely different considerations apply. In the present case, however, the usual practice should have been followed as all the offences were committed by means of the same modus operandi and were of an identical nature; and the effect of departing from it has, in my view, resulted in a total term of imprisonment that is too severe.

The facts of the case, which were admitted by the appellant, established that he was employed as a cashier by a firm of barristers and solicitors in Suva, and was responsible for receiving all money paid on behalf of clients to the firm, issuing receipts, and ensuring that the money was paid into the bank and credited to the right account. By a carefully planned manipulation of receipt books, banking books and ledgers, the appellant fraudulently misappropriated various sums received by him on behalf of the firm, and instead of passing the money into the possession of the firm he applied it to his own use.

The facts of the case, in my opinion, support a charge of embezzlement contrary to section 306(a)(ii) of the Penal Code, rather than larceny by servant contrary to section 306(a)(i) of the Penal Code; and although the distinction may be of a somewhat technical nature, more particularly in view of the provisions of section 175(b) and section 178 of the Criminal Procedure Code which allow of a conviction for embezzlement to be entered on a charge of larceny and vice versa, I think it proper to substitute a conviction of embezzlement in respect of each of the eight offences.

The facts put before the lower court and admitted by the appellant included background information disclosing, inter alia, a deficiency of $58,664.44 as at the end of May 1977, and subsequent repayments by the appellant of $33,000. On the hearing of the appeal, an application by counsel for the appellant to adduce evidence to shew that between June 1977 and January 1978 the appellant repaid an additional $26,837 was refused by this Court, not only because there is nothing before the Court to shew what deficiency there was, if any, from June 1977 to January 1978, but because the Court is not concerned with, and the appellant is not before the Court in connection with, a general deficiency. The charge relates to specific sums of money embezzled on specific days and amounting in all to $11,262, being the amount the appellant admitted to the head of his firm that he had dishonestly appropriated, and to which he pleaded guilty in court, the breakdown being as follows:-

Count 1	8th March 1977	$1,980
Count 2	17th March 1977	$ 500
Count 3	22nd March 1977	$2,200
Count 4	28th March 1977	$ 540
Count 5	13th April 1977	$3,600
Count 6	3rd May 1977	$ 172
Count 7	5th May 1977	$2,000
Count 8	20th May 1977	$ 270

The sentences imposed, therefore, must relate to these specific counts, taking into account the appellant's position, his modus operandi, and the relationship that the overall sentence bears to the gravity of his criminal conduct.

The appellant was employed by barristers and solicitors who stand in a fiduciary relationship to their clients, and by virtue of his employment he was in a special position of trust which he grossly abused, circumstances which render an immediate custodial sentence inevitable. I quash the sentences imposed by the lower court and in substitution therefor, having given due consideration to the mitigating factors and to the appellant's admission of guilt, I impose the following terms of imprisonment with effect from the 22nd June 1978:

Count 1	4 years'	imprisonment
Count 2	12 months'	imprisonment
Count 3	4 years'	imprisonment
Count 4	12 months'	imprisonment
Count 5	5 years'	imprisonment
Count 6	9 months'	imprisonment
Count 7	4 years'	imprisonment
Count 8	9 months'	imprisonment

I order these sentences to run concurrently, constituting an overall term of five years' imprisonment.

Suva,
31st July 1978.

Clifford H. Grant
Chief Justice