Regina v Gagahe [2012] SBMC 4; Criminal Case 874 of 2009 (12 October 2012)

IN THE CENTRAL MAGISTRATE COURT

Criminal Case No. 874/2009

R

V

LONSDALE GAGAHE

Date of Sentencing submissions
and mitigation: 10/10/12
Date of Sentence: 12/10/12

Pros: Ms Rachel Olutimayin & Nelson Dhite
Def: Mr Sevuloni Valenitabua

SENTENCE

(1) You were found guilty of 5 counts of larceny by servant and the charges read as follows:

Statement of offence

Count 1: Larceny by servant

Particulars of offence

That Lonsdale Gagahe of Sepi village, Isabel Province in Honiara in the Guadalcanal Province on or about 27th September 2007, being a servant employed as Sales and Marketing Manager did steal a chattel to wit 44 tons of rice property of his employer namely Solrice Limited.

Count2: Statement of offence

Larceny by Servant c/s 273(a)(i) of the Penal Code.

Particulars of the offence

That Lonsdale Gagahe of Sepi village, Isabel Province in Honiara in the Guadalcanal Province on or about 1st October 2007, being a servant employed as Sales and Marketing Manager did steal a chattel to wit 17 tons of rice property of his employer namely Solrice Limited.

Count 3: Statement of Offence

Larceny by servant c/s 273 (a)(i) of Penal Code

Particulars of offence

That Lonsdale Gagahe of Sepi village, Isabel Province in Honiara in the Guadalcanal Province between 22nd October 2007 and 14th January 2008 being a servant employed as Sales and Marketing Manager did steal a chattel to wit 88 tons of rice property of his employer namely Solrice Limited.

Count5: Statement of offence

Larceny by servant c/s 273(a)(i) of Penal Code

Particulars of offence

That Lonsdale Gagahe of Sepi village, Isabel Province in Honiara in the Guadalcanal Province between 17th November and 19th December 2007, being a servant employed as Sales and Marketing Manager did steal a chattel to wit 55 tons and 40 bales of one kilogram of rice property of his employer namely Solrice Limited.

Count 6: Statement of offence

Larceny by servant

Particulars of offence

That Lonsdale Gagahe of Sepi village, Isabel Province in Honiara in the Guadalcanal Province between 26th October 2007 and 10th January 2008, being a servant employed as Sales and Marketing Manager did steal a chattel to wit 151 tons of rice property of his employer namely Solrice Limited.

(2) The maximum penalty – 14 years per each count

(3) The trial commenced in August 2011 and judgment was delivered on 28/9/12.

(4) You were employed by Solrice for the last 27 years having commenced employment in 1985 and you were its sales and marketing since 1988 until February 2008 when your employment was terminated.

(5) In the Solrice hierarchy you were second in charge and you were responsible to supervise the entire sale process of the rice and you were also responsible to do daily stock take.

(6) You immediate superior was Brian Hutchinson (Brian) the general manager but he hardly ever checked your work including the daily stock take as he trusted you. The stock discrepancies only surfaced when you went on leave in January 2008. At first Brian did a stock take and found that 32 containers of rice was missing each containing 22 MT totalling 704 MT. He thought that he made a mistake and then asked the warehouse manager to assist him and both of them found that 32 containers of rice were missing.

(7) Subsequently Solrice engaged Morris Sojnocki to do an audit and they also found that 32 containers of rice were missing.

(8) Marc Donovan was Brian's superior and he was of the view that you were the suspect but Brian refused to accept that as he trusted you so you can imagine how you betrayed his trust.

(9) Brian trusted you very much that he allowed your family company D & L to become a cash distributor in 2006. You were allowed to purchase rice on a strictly cash basis unlike other distributors who were allowed 15 days credit facilities. Subsequently the name of your company name changed to N & L.

(10) You continued to be a good cash distributor until October 2007 when the problems started and this continued till January 2008. In between this period the stock take discrepancies showed that a total of 32 containers of rice was missing (704 MT) but you are charged with stealing 355 MT ($1.75millon) of rice.

(11) During this period you started interfering with other distributor's accounts by overcharging them and you insisted upon them to paying the overcharged amounts when they disputed that they did not receive the stock. Your explanation for asking the distributors to pay for the overcharges was that they were mistakenly overcharged. I have already found against you that there was no mistaken over charges but if that occurred it could have been cured by a single accounting process of account reversal.

(12) Every time you overcharged a distributor you took rice to the value of overcharge and you paid for some overcharges and subsequently took rice to the corresponding value of the payments that you made. This amounted to double dipping.

(13) The evidence against you was very overwhelming but notwithstanding that you decided to plead not guilty and of course that is your constitutional right and by pleading not guilty you have shown absolutely no remorse.

(14) You are a first offender – aged 53 years married with 2 children – son aged 19 years and daughter aged 16 years who is at school.

(15) You lost your home at Mbokonavera and your family is now living with your nephew.

(16) You have been unemployed since 2008.

(17) I have been cited other cases of larceny by servant and your case by far involved the largest amount of money ($1.75m) in the history of Solomon Islands.

(18) In the case of Elena v/s Regina 2004 SBHC 126 a sentence of 4 ½ years was upheld on appeal by the High Court.

Totality Principle

(19) I am mindful of the fact I should take into the totality principle in sentencing you for the 5 counts and CJ Ward in the case of Bado v/s The Queen (1988-1989) SILR 121 stated as follows:

"when considering sentence for a number of offences, the general rule must be that separate and consecutive sentences should be passed for the separate offences. However, there are two modifications, namely – (a) where a number of offences arises out of the same single transaction and cause harm to the same person there may be grounds for concurrent sentences; and (b) where the aggregate of the sentences would, if they are consecutive, amount to a total that is inappropriate in the particular case."

(20) In terms of seriousness of the offending this is an upper end of the range of seriousness and I will impose the maximum sentence that I am empowered to do. The sentence will be:

Count1:	5 years
Count 2:	5 years
Count 3:	5 years
Count 5:	5 years
Count 6:	5 years

((21) In applying the totality principle I must impose a sentence which is appropriate and because your offending was on the upper range of seriousness a total sentence of 6 years imprisonment would in my view would be appropriate and I therefore order that out of your sentence on count 2 you must serve 1 year to run consecutively with count 1 and the balance of the sentence on count 2 shall be served concurrently with the sentence on count 1 and I further order that the sentences on counts3, 5 & 6 shall be served concurrently with the sentence on Count 1.

(22) You will serve a total sentence of 6 years and you have in custody since 28/9/12 and I order that your sentence should be backdated to 28/9/12.

Shafi Khan
Principal Magistrate