Kumar v The State [2006] FJCA 1; AAU0088D.2005 (20 January 2006)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

Criminal Appeal No. AAU0088.2005
(High Court Criminal Appeal HAA0013.2005L)

BETWEEN:

ANAND KUMAR
(f/n Sada Nand)
Appellant

AND

THE STATE
Respondent

Coram: Scott, JA

Date of Hearing: 18 January 2006

Counsel: Appellant in person
Ms. A. Prasad for the Respondent

Date of Decision: 20 January 2006

DECISION

[1] In July, August and September 2004 the Appellant pleaded guilty to several charges of obtaining goods by false pretences contrary to Section 309 of the Penal Code. The maximum penalty for this offence is 5 years imprisonment. The Appellant, who had over 70 previous convictions, most of them for similar offences, received a total of two and half years imprisonment.

[2] The Appellant appealed against the sentences imposed upon him and in February 2005 his appeal was heard by the High Court at Lautoka.

[3] On 27 July 2005 this Court ordered that the appeal be reheard. Full reasons for that order are set out in this Court’s judgment dated 29 July 2005 and need not now be repeated.

[4] On 30 September 2005 the appeal was reheard by the High Court. Although originally only an appeal against sentence, the High Court also heard submissions by the Appellant against his convictions. The Appellant suggested that his guilty pleas had either been equivocal or involuntary. The Appellant also suggested that the sentences cumulatively imposed upon him had been excessive.

[5] On 5 October 2005 the High Court (Connors J) dismissed the Appellant’s appeal. Having reviewed the facts the Court found the Appellant’s submissions in relation to his guilty pleas to be without foundation. Given the nature of the offences committed and the Appellant’s failure to profit from his previous Court appearances, the sentences imposed were described as 'extremely moderate'. The appeal against sentence was described as 'misconceived'.

[6] The Appellant’s present appeal against the dismissal of his appeals to the High Court is a second appeal pursuant to Section 22 (1) of the Court of Appeal Act. Such appeals only lie where a question of law is raised or where an immediate custodial sentence has been imposed by the High Court in substitution for a non custodial sentence imposed by the Magistrates’ Court (see Section 22 1 A (b)).

[7] I have considered the grounds of appeal set out by the Appellant in his letter to this Court dated 7 October 2005. The Appellant did not wish to add to those grounds.

[8] In my opinion no question of law or other arguable ground of appeal has been advanced by the Appellant and the appeal is therefore bound to fail. Accordingly it is dismissed pursuant to the provisions of Section 35 (2) of the Court of Appeal Act.

M.D. Scott
Resident Justice of Appeal