Kumar v The State [1991] FJHC 7; Haa0003.1991 (30 January 1991)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 3 OF 1991

Between:

SALENDRA KUMAR
s/o Kasi Ram
Appellant

v.

THE STATE
Respondent

Appellant in Person
Mr. J. Prakash for the Respondent

JUDGMENT

The appellant was sentenced to 18 months imprisonment after he pleaded guilty to an offence of Larceny of 10 pairs of Reebok canvas and six T-shirts.

He has served 4 months imprisonment and now appeals against both his conviction and sentence on the ground firstly that he did not commit the offence and secondly that the sentence is harsh and excessive and disparate from sentences imposed on his co-accused.

As to the appeal against conviction it is noted that the appellant was charged with 4 others (including 3 women). The detailed facts outlined in relation to 2 of the 3 women involved, indicates that they were actively involved in the theft of the articles from a shop in the Deuba Shopping Centre.

This clearly differs from the facts outlined against the appellant which are cryptically recorded as follows:

"FACTS: Already outlined (5th accused was the mastermind)."

As already pointed out none of the facts already outlined referred specifically to anything the appellant did in the commission of the offence. As for being the "mastermind" it was a bare unsupported albeit undisputed assertion on the part of the prosecutor.

Be that as it may, the women were each sentenced to 6 months imprisonment for their part.

Learned State counsel was unable to assist the court on the crucial matter of the appellant's actual role other than to note that the driver of the car from which the stolen goods were eventually recovered was not the appellant. The appellant's role in the entire incident still remains a "mystery".

Nevertheless he pleaded guilty and his record of previous convictions suggests that he is not unfamiliar with court procedures or the particular charge which had been laid against him. The appeal against conviction is accordingly dismissed.

As for sentence, however, there can be no denying that the appellant's sentence is manifestly disparate from his 3 co-accused being 3 times longer. Needless to say all 3 co-accused had previous convictions so they were equal on that score. As for their different "roles" in the commission of the offence this is far from satisfactorily explained in the facts outlined by the prosecution.

I note also that all the stolen goods have been recovered and returned to its rightful owner.

In all the circumstances the appellant's sentence cannot be allowed to remain unaltered and is accordingly reduced to 6 months imprisonment with effect from the 17th of October, 1990.

(D.V. Fatiaki)
JUDGE

At Suva,
30th January, 1991.