Maharaj v The State [1996] FJHC 96; Haa0044j.95b (8 February 1996)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 44 OF 1995

Between:

RAGHWA NAND MAHARAJ
s/o Gaya Prasad Maharaj
Appellant

- and -

STATE
Respondent

The Appellant in Person
Ms Laisa Laveti for the Respondent

JUDGMENT

On 18 September 1995 the Magistrate's Court at Labasa convicted and sentenced the appellant on his own plea to imprisonment for 6 months for the offence of embezzlement contrary to section 274(a)(ii) of the Penal Code.

He has appealed against sentence. He has stated in his Petition of Appeal, inter alia, that he should have been given a suspended sentence for he had made arrangements to pay to the complainant the sum of money involved in the charge.

The appellant told the Court at the hearing that he has already paid the amount in question and that he is at present serving the remainder of his sentences of 3 years 9 months extramurally. He is making a plea to this Court to make the said sentence of 6 months concurrent with the other sentences.

At first the State opposed the appeal but after further consideration Miss Laveti said that she had no objection to the sentence being made concurrent in the circumstances of this case. The State had earlier referred the Court to Criminal Appeal No. 39/95 (involving the same appellant). There the situation was different from this case. There the appellant had paid the amount involved before sentence and was sentenced to 3 months imprisonment. On appeal it was held that the sentence was not excessive or wrong in principle. In the case before me, the amount was paid after sentence, namely, on 15 January 1996 and this has been confirmed by the complainant's solicitor.

I have considered the appeal.

The State having no objection, I would in all the circumstances of this case particularly because of the fact that the appellant has paid the sum of money involved in full even after sentence and has been allowed to serve extramurally the remainder of his term, I vary the sentence by making it concurrent with the sentence which he was serving before the said sentence was passed on him.

I therefore allow the appeal.

D. Pathik
Judge

At Labasa
8 February, 1996

HAA0044J.95B