Kumar v The State [1996] FJHC 28; Haa0022j.96s (10 July 1996)

Fiji Islands - Rajiv Kumar v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

ass=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> CRIMINAL APPEAL NO. 0022 OF 1996

p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> BETWEEN:

RAJIV KUMAR
s/o Raj Kumar
Appellant

AND:

THE STATE
Respondent

Appellant in Person
Ms. L. Tabuya for Respondent

JUDGMENT

On the 20th of December 1995 the appellant was charged before the Magistrate Court, Nausori with seven (7) counts arising out of the theft of a bank savings account passbook in December 1995 and two attempts (one successful and one unsuccessful) to withdraw money from the passbook.

In particularCount 1 charged the appellant with an offence of Larceny from a Dwelling Hing House. The items alleged to have been stolen were, cash, a dungaree

trousers and a pair of sandals, no mention whatsoev made of the complainant's nt's savings bank account passbook yet the remaining six (6) counts in the charge sheet, all relate either directly or indirectly, to the passbook!

Next, Counts 2 and 5 chargeappellant with an offence of Forgery of a a 'withdrawal slip' contrary to Section 335(1) of the Penal Code. That section however, makes reference to "wills, codicils or other testamentary documents" [para.(a)]; "deeds, bonds" [para.(b)]; and "currency notes or bank notes" [para.(c)]. None of these paragraphs, to my mind, covers a savings bank account 'withdrawal slip' which is more properly included within the definition of a 'valuable security' i.e. Section 335(2), insofar as it is "... an order or a request for the payment of money". (See: definition at Section 4 Penal Code).

Finally, Count 7 charged the appellant with : Contrary to Sections 381 and 347 of the Penal Code. Section 381 is correctly referred to in the 'Statement of Offence' insofar as it refers to 'attempts', but Section 347 has nothing whatsoever to do with the case, in that it refers specifically to implements and paper used to forge bank notes or currency notes. Quite plainly the correct section is Section 345 of the Penal Code. (cf. 'Particulars of Offence' in Count 4)

The above may be considered minor 'irregularities' in the charge which may oray or may not have been 'cured' by the Particulars provided, as State Counsel appeared to suggest at the hearing of the appeal.

But, as was said by Mishra J. in D.P.P. v. Solomone Tui 21 F.L.R.4 at 6:

"The charge passed through the hands of the police, (an) experienced police prosecuting officer ... and (an) experienced Magistrate; and it is inconceivable that the glaring defects in this charge were overlooked by all concerned ... Justice demands the highest standards and nothing less will do."

I respectfully those sentiments and would add that where an accused is unrepresented (as in this case), prosecuting authorities and Magistrates must exercise a greater vigilance in the discharge of their respective duties and functions.

Be that as it may the appellant initially pleaded 'not guilty' to all sall seven (7) counts and the prosecutor sought his remand pending trial. In the course of seeking bail the appellant is recorded to have said:

"... I am sorry for what I have done."

which prompted the trial magistrate quite improperly, to say:

"In that case you should change your plea plea."

after which, thellant is recorded to have said:

"I am ple guilty."

The charge was then put again to the appellant and this time he ple 'guilty' to > to all seven (7) counts.

The brief facts of the case are the appellant had visited his uncle at Nakasi on 1414th of December 1995 and whilst staying with him, the appellant stole the various items listed in Count 1 (including an N.B.F. Savings account passbook belonging to his uncle). Thereafter on 16th December 1995 using a forged withdrawal slip the appellant succeeded in obtaining $50 from an N.B.F. agency at Jays Supermarket at Nausori. Three (3) days later a second attempt to withdraw $900 from the A.N.Z. (sic) Bank in Suva proved unsuccessful when the Manager became suspicious and questioned the appellant. The police were informed and the complainant's passbook and sandals were subsequently recovered.

Upon his conviction the trial magistrate sentenced the appellant to cutive terms of 6 monthsonths imprisonment on each count making a total sentence of (6 x 7) = 42 months imprisonment.

The appellant now appeals against the 'harshness' of the sentence and asks the court to make his sentences 'concurrent'. At the hearing of the appeal, the appellant urged the Court to consider the plight of his family and the fact that he now realises his mistake and has become a Christian since his imprisonment.

In sentencing the appellant the trial magistrate correctly observed (of the appellant):

"He has been in the practice of committing similar offences since 1991. It is only appropriate therefore that the Accused to be placed in prison for some time, perhaps he might learn how to discipline himself from the prison wall. The Accused is sentenced to 6 months imprisonment on each of the 7 counts. Sentences to run consecutively."

I am satd however that in the sentence(s) he imposed, the trial magistrate ignored several sound 'principles of sentencing' which are described in the following passage in Thomas' Principles of Sentencing which states (with regard to a court's power to order concurrent or consecutive sentences):

p class=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> (my underlining)

(See/i>: In similar terms the observations of MacDuff C.ff C.J. in Krishna v. R. 8 F.L.R. 236 at 238)

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Furthermore in considering whether offences are part of 'one incident or transaction' the Court takes a broad view of the facts.

In this regard there can be little dou my mind having regard to the identity of the offences char charged in Counts 2, 3 & 4 and Counts 5, 6 & 7 and their relative proximity in date, and involving the same criminal scheme, complainant and passbook, that the proper view would be to treat them all as being part of a 'continuous criminal transaction' for which concurrent sentences ought to have been imposed.

Then, at p.50 (ibid) the learned author sta

"The third situation where the Court tends to consider consecutive sentences inappropriate is that where the offender is convicted of unlawfully possessing some item and an offence consisting of using or dealing with it."

Fample in this case, one might consider the appellant's unlawful possession of the complainalainant's savings bank account passbook and his various attempts to unlawfully withdraw monies from it, as falling within that 'third situation' where consecutive sentences would be considered 'inappropriate'.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Finally reference may de to the 'totality principle' which is succisuccinctly described in the following extract, again from Thomas Principles of

ass=MsoN=MsoNormal style="margin-top: 1; margin-bottom: 1"> Sentencing (2nd edn.) at p.56, where the learned author states:

"The effect of the totality principle is to require a sentencer who has passed a series of sentences ... to review the agte sentence and consider wher whether the aggregate is 'just' and 'appropriate'."

In simiein Lawton L.J. said in Barton's case:

"When these cases of multiplicity of offences come before the court, the must not content itself by doing the arithmetic and passinassing the sentence which the arithmetic produces. It must look at the totality of the behaviour and ask itself what is the appropriate sentence for all his offences."

In this case the trial magistrate not only failed to differentiate in any way between teen the nature and seriousness of the various offences that were committed by the appellant, but he also over-looked the appellant's 'guilty' pleas and was unduly influenced by his record of previous convictions. Indeed the sentence imposed appears to have been an exercise in pure 'arithmetics', without any consideration of relevant 'sentencing principles'.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> True, as State Counsel submits, the offences had an element of 'meanness' to them insofar as it involved a close relative of the appellant who had offered him shelter, but a cumulative sentence six (6) months short of four (4) years imprisonment is wholly disproportionate in my view to the 'totality' of the appellant's criminal behaviour over 3 days with varying degrees of success, and involving less than $200.

Accordingly the sentences are set aside and in substitution therefor, I impose the following:

Count 1: 18 months imprisonment) 14th Dec. incident

Count 2: 12 months imprisonment)

Count 3: 4 months imprisonment) 16th Dec. incident

Count 4: 8 months imprisonment)

Count 5: 12 months imprisonment)

Count 6: 4 months imprisonment) 19th Dec. incident

Count 7: 8 months imprisonment)

The sentences on Counts 2, 3, 4, 5, 6 and 7' 'concurrently' thereby making a total sentence of 12 months imprisonment for all the offences involving the stolen passbook, which is further ordered to be served 'consecutive' to the sentence imposed on Count 1, making a reduced total sentence of (18 + 12) = 30 months imprisonment with effect from the 20th of December 1995.

Subject to the above variation the appeal againntence is dismissed.

D.V. Fatiaki
JUDGE At Suva,
10th July, 1996.

Haa0022j.96s