Kumar v The State [1993] FJHC 26; Haa0021j.1992s (12 March 1993)

IN THE HIGH COURT OF FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 21 OF 1992

BETWEEN:

ANAND KUMAR
s/o SADA NAND
Appellant

AND

STATE
Respondent

Appellant in Person
Mr. W. Foster for the Respondent

Date of Hearing: 12th March 1993
Date of Judgment: 12th March 1993

JUDGMENT

The Appellant appeals against the sentence of eighteen months imprisonment consecutive to any sentence he was then currently serving imposed on him by the Magistrate's Court Labasa on 23rd October 1992.

The Appellant pleaded guilty to a charge of obtaining $1,500.00 by false pretences from another person contrary to Section 309 of the Penal Code Cap.17.

The Appellant who is aged 30 has submitted that the sentence imposed on him was harsh, excessive and oppressive on the ground that in all the circumstances the Learned Magistrate should have made his sentence concurrent with and not consecutive to sentences totalling five and half years imprisonment which he is currently serving.

He submitted that if considered alone a sentence of eighteen months would be reasonable for the offence to which he pleaded guilty but to make this consecutive to his present terms of imprisonment is unfair and oppressive.

One of the purposes of punishment is to deter the present offender and others who may have similar ideas from committing crimes similar to those committed by the prisoner before the Court. Another purpose is to endeavour to reform and rehabilitate the prisoner. It is not the purpose of punishment to so coerce or cower an offender that he gives up all hope for the future. The criminal law should not be seen as a tyrant or an ogre whose sole object is to punish unmercifully those who commit crimes. In this regard I have been assisted by the Learned State Prosecutor who in my opinion has conducted himself in the best traditions of the office of a State Prosecutor.

The function of a State Prosecutor in a criminal case differs from that of counsel in a civil cause where the object of counsel is to strive for a verdict for his client within the limits imposed by the law. By contrast as was said by Crompton J. long ago in R. v. Puddick [1865] EngR 61; (1865) 4 F & F 497, 499 counsel for the prosecution in a criminal case are to be regarded as ministers of justice. Their duty is to present the evidence for the State as fairly and professionally or competently as possible in an effort to ensure that justice is done between the State and the accused person before the Court.

In this case Mr. Foster very properly conceded that considered over all the sentence imposed by the Magistrate at Labasa when added to the sentences presently being served by the Appellant was disproportionate to the offence he committed.

The Appellant has pleaded to be given one last chance. I expect he has made a similar plea before because he has a long record of criminal offences mainly of obtaining goods or credit by false pretences dating back to 1983. This record covers nearly five pages. He tells me that at long last, and I would hope permanently, through the help of a minister of religion, he realises now that he has to reform. I am prepared to give him a last chance for the reasons which he has submitted, and endorsed by counsel for the Respondent. However the Appellant must realise that hereafter he should not expect the Courts to show similar mercy if he breaks the law again. For his sake I hope he is true to his word.

The order of the Court is that the appeal is upheld and that the sentence imposed on the Appellant by the Magistrate's Court at Labasa on 14th October 1992 be set aside and in its place a term of eighteen months imprisonment concurrent with the term of five and half years imprisonment currently being served by the Appellant be substituted.

JOHN E. BYRNE
J U D G E

HAA0021J.92S