Kumar v The State [1996] FJHC 54; Haa0047j.96s (19 September 1996)

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

IN THE HIGH COURT OF FIJI

At Suva

Appellate Jurisdiction

CRIMINAL APPEAL NO. 0047 OF 1996

BETW/span>

KAMLESH KUMAR
s/o DwarkDwarka Prasad
Appellant

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Respondent

Appellant in Person
Ms. R. Olutimayin and Ms. A. Driu for Respondent

ass=MsoNormal style="marginargin-top: 1; margin-bottom: 1"> JUDGMENT

On the 20th of December 1995 the appellant was convicted after he pleaded 'guilt> to an offence of <Obtaining Money by False Pretences and was sentenced to two (2) years imprisonment. The sentence was also

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> ordered tserved consecutiveutively with a prison sentence of two (2) years imprisonment which the appellant was then serving and which had been earlier imposed for a similar offence by the Nausori Magistrate Court on the 14th of November 1995 (i.e. a month earlier).

The Magistrate Court record of proceedings indicates that the police putor instead of orally outl outlining the brief facts of the case as is the usual practice on 'guilty' pleas, merely produced a typewritten two (2) page 'Summary of Facts' prepared by the Investigating Officer and which presumably was read out and interpreted to the appellant for his acceptance and admission.

The 'Summary of Facts' ins an enormous amount of unnecessary details and requires ires some close reading in order to ascertain the precise role of the appellant in the commission of the offence. It also quite improperly makes numerous references to the name and role of a third accused who was not then before the trial magistrate.

If I may say so this 'novel' method of presenting facts in the MagistrCourt without any attemattempt to limit it to the persons charged before the Court is to be deprecated. What's more the mass of details provided in the Summary unnecessarily lends itself to disputes which can and should be avoided if the accused's plea is to be considered unequivocal.

Be that as it may the appellant has not sought to dispute either his plea or his convn and the same need not cont concern the Court any further.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The brief facts of the case were that the appellant and two others contriv elaborate scheme and defradefrauded the complainant of $1,200 cash by falsely pretending that they were able to obtain for the complainant a visa to emigrate to Australia by arranging his marriage to an Australian resident.

At the hearing of hisal against sentence, the appellant complained that his consecutive sentence of two (2) years imprisonment was "... too harsh and excessive" and he urged in support the 'disparate' sentence of twelve (12) months imprisonment imposed on the third accused by the same magistrate, several months later, in Suva Magistrate Court Criminal Case No: 2682/95.

It is sufficiently plain from the 'Summary of Facts' that the third accused, Mohammed Azam, played a leading role in the commission of the offence as well as being the person to whom the money was given. He also has a not dissimilar record of previous convictions to that possessed by the appellant.

On the principle that equals should eated alike, it is plain in my view that the appellant has has received a 'disparate' sentence and therefore has a justifiable grievance in that regard.

State Counsel in seeking to support the appellant's sentence explained that in sentencing the third accused for this offence the trial magistrate was aware of an earlier prison sentence imposed on the third accused that same day by another magistrate and had accordingly adjusted the third accused's sentence on the 'totality principle'.

However thel magistrate, in the appellant's case, was also aware that the appellant was a serving pris prisoner at the time of being sentenced for the present offence (See: Appellant's Mitigation at p.7 of the record), but nevertheless saw fit not to extend the same leniency to the appellant that he was later to show to the third accused. Here again, the appellant in my view, has a genuine grievance of dissimilar treatment.

The appellant also complains, in the absence of any recordeerence thereto, that the trial magistrate did not take into into account his plea of 'guilty' which has long been recognised as a mitigating factor.

State Counsel in submitting that the appellant's 'guilt> plea had been taken iken into consideration pointed to the maximum sentence of five (5) years imprisonment that could have been imposed by the trial magistrate. Alternatively, counsel argued that any 'discount' was entirely within the trial magistrate's discretion to grant or withhold as he saw fit and arising from the appellant's plea of 'guilty'.

Even recognising the existence of such a 'discretion' in a sentencing court, there is not the slightest doubt in my mind that it must be exercised judicially bearing in mind the nature of the offence; the stage at which the 'guilty' plea was tendered; the strength of the prosecution's evidence and the principle that an accused person who pleads 'guilty' should not be arbitrarily or lightly denied the mitigating effect of such a plea. (R. v. de Haan (1968) 52 Cr. App. R. 25)

Needless to say in this case neither the trial magistrate nor State Counsel advanced any reason(s) for not treating the appellant's 'guilty' plea as a mitigating factor, nor in my view does any exist.

In all the circumstances thellant sentence is reduced to one of twelve (12) months imprisonment effective from trom the 20th of December 1995. However the trial magistrate's order that the sentence shall be served consecutive to another sentence that the appellant was serving at the time, is affirmed and remains unaltered.

Subject to the above reduction in sentence, the appeal is dismissed.

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D.V. Fatiaki
JUDGE

At Suva,
19th September, 1996.

Haa0047j.96s