Commissioner of Inland Revenue v Maharaj [1997] FJHC 216; Haa0016.1997s (2 July 1997)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL APPEAL NO. HAA 16 OF 1997

BETWEEN:

COMMISSIONER OF INLAND REVENUE
Appellant

AND:

RAJESH PRASAD MAHARAJ
Respondent

I.W. Blakeley for the Appellant
Respondent in Person

JUDGMENT

On 13 December 1993 the Respondent pleaded guilty to 13 counts of failing to furnish a tax return contrary to section 71(c) of the Value Added Tax Decree 1991.

On 14 February 1994 the Chief Magistrate sentenced the Respondent by imposing fines on him in respect of the 13 offences ranging between $150 and $300. Each fine carried a separate 6 months imprisonment default period but the sentences were specified to be concurrent. In other words the total amount payable by the Respondent was $300. 3 days later the Commissioner appealed against the sentence.

With lamentable inefficiency the record of appeal (which apart from 13 pages of photocopying only required the transcription of 2 or 3 pages of written notes- say, in all, 3 hours work) took almost 3 years to reach the High Court. This type of delay in the preparation of appeal records by the Suva Magistrate's Court is totally inexcusable and unacceptable as has been pointed out many times before.

In view of the delay Mr. Blakeley did not proceed with grounds of appeal 2 and 3 which involved quantum and mode of calculation. The only remaining question is whether fines imposed for separate offences can be made "concurrent".

Mr. Blakeley filed a helpful and well-researched written submission which I am grateful.

So far as is relevant to this appeal the sentencing powers of a Resident Magistrate are contained in sections 7, 11 and 12 of the Criminal Procedure Code (Cap 21) and sections 28 and 35 of the Penal Code (Cap 17).

As is clear from sections 12 and 28 a person sentenced at the same time to separate sentences of imprisonment for discrete offences must serve those sentences consecutively unless the Court orders them to be served concurrently. There is however no section in either code specifically allowing or disallowing fines to be "served" concurrently. The closest seems to be section 28(4) of the Penal Code which provides that a sentence of imprisonment in default of payment of a fine must be served consecutively to a former sentence. This means that, default periods associated with individual fines must be served individually.

Mr. Blakeley told me that he had been unable to locate any authority on the point. He also told me that the practice of imposing concurrent fines (which had in any event been confined to this particular Magistrate) has now ceased.

In my view the absence of authority on the question stems from the fact that upon reflection it must be seen that the notion of "serving" fines concurrently makes no sense since concurrence or running together can only apply to a sentence being served, not a fine being paid.

In my opinion Magistrates Courts do not have the power to order fines to be accumulated concurrently: fines imposed for discrete offences must be added to each other and the total sum ordered must be paid.

If properly calculated the total fine imposed on the Respondent by the Chief Magistrate was $3,000 but the default period was, in view of section 28(4) an obviously excessive 6 ½ years, far longer then the maximum of 9 months allowed by section 35(2) of the Penal Code. As however already noted the Appellant is content to let the final sum rest at $300 which was the highest single fine imposed and which has already been paid.

The appeal is allowed. The sentences imposed on 21 January 1994 are set aside. In substitution fines of $24 will be imposed in respect of Counts 1 - 12 and $12 in respect of Count 13. Payment already having been made a default of payment period is not required. In view of the unique circumstances of this case the sentences now imposed cannot amount to any type of sentencing precedent.

M.D. Scott
Judge

2 July 1997

HAA0016.97S