Prasad v The State [1996] FJHC 21; Haa0003j.1996b (22 May 1996)

Fiji Islands - Janki Prasad v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0003 OF

BETWEEN:

JANKI PRASAD

s/o Raj Kumar

Appellant

AND:

THE STATE Respondent

Appellant in Person
Ms. L. Laveti for Respondent

JUDGMENT

On the the appellant was convicted after trial by the Labasa Magistrate Cate Court for an offence of stealing a plough valued at $250 and sentenced to 18 months imprisonment. The plough was later recovered and returned to its rightful owner.

The appellant now appeals against the sentence on the ground not of its excessiveness per se, but of its cumulative severity when added to the 24 months which he was already serving at the time he was sentenced for this present offence. He also complains that he was given insufficient time to mitigate and he urges the plight of his children in seeking the court's clemency.

In this regard the Magistrate Court's record indicates that the trial magistrate was not only aware of the appellant's two children who had been left with a relative, but also, that the appellant was already serving a sentence of imprisonment at the time the present sentence was imposed. Indeed the trial magistrate himself had imposed the earlier sentence on the 20th September 1995 when the appellant was convicted by him for an offence of stealing a cane fastening key.

I can t once that it would be quite wrong for an appellate court to reduce an otherwise wholly aply appropriate sentence merely because the appellant was already serving an equally appropriate sentence earlier imposed in an unrelated case.

The question that has been ictly raised in this appeal is whether the present offence is wholly unrelated to the formerormer, for sentencing purposes?

I am gratef State Counsel for her assistance in drawing my attention to the judgment of Pathik J. in Labasa Criminal Appeal No. 45 of 1995 in which the appellant was successful in having his earlier sentence of 24 months reduced to 15 months imprisonment.

It further transpired during the hearing of the appeal that the present offence was committed a day after the earlier offence of stealing a cane harvesting key but charges were not laid at the same time or in the same charge sheet.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Needless to sahough the stolen items and the complainants were different, the offences were the same and and were committed in the same neighbourhood during what may be considered a 'single transaction' involving a series of similar offences and may have attracted concurrent terms, had the offences been dealt with at the same time. Unfortunately the appellant's offences were not dealt with at the same time with the result that he received consecutive sentences.

As was said by MacDuff C.J. in KrishnR. 8 F.L.R. 236 at 238:

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"... the practice is, where a person commits more one offence at the same time time and in the same transaction, save in exceptional circumstances, to impose concurrent sentences ... This practice had been extended to cases where although the offences have not been committed at the same time, they have been of the same type and have, in effect, formed part of one transaction."

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In this case although the monetary value of thugh is not substantial, its importance to a farmer such as h as the complainant cannot be doubted and the theft of such an implement in a rural farming community must attract a deterrent sentence.

In my view the sentence of 18 months imprisonment was wholpropriate and remains unchanged. As an act of leniency howe however, it is ordered to be served concurrently with the appellant's sentence in Criminal Appeal No. 45 of 1995 with effect from the 10th of November 1995. In other words with remission, the appellant must serve 3 months and 3 weeks imprisonment in addition to the sentence imposed in Criminal Appeal No. 45 of 1995.

D.V. Fatiaki
JUDGE

At Labasa,
22nd May, 1996.

Haa0003j.96b