Sharma v State [1997] FJHC 84; HAA0018D.1997S (8 July 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.HAA0018 OF 1997

Between:

ATIL SHARMA
Appellant

And:

THE STATE
Respondent

Counsel: Appellant in person
Mr. P. Petaia for Respondent

Hearing: 8th July 1997

Decision: 8th July 1997

ORAL DECISION OF PAIN J

The Appellant appeals against a sentence of 8 months consecutive imprisonment imposed in the Magistrates Court on 2 charges of obtaining by false pretences.

The first offence was committed on the 7th February 1996. The Appellant and a co-offender pleaded guilty to obtaining $1,200 from the complainant by false pretences. The false pretence was their representation that they could arrange a marriage and a visa for the complainant.

The second offence was committed on the 7th March 1996 by the Appellant only. He obtained $500 from the complainant by false pretences. Again the false pretence was that he could arrange a marriage and visa for the complainant.

Both the Appellant and the co-offender pleaded guilty in the Magistrates Court on the 6th November 1996. After a summary of facts was presented, submissions were made in mitigation. The learned Magistrate then gave reasons for his sentence. He said that the offending deserved a sentence of 18 months imprisonment. However, in view of the matters that had been submitted in mitigation, he reduced the term to 8 months only. He imposed a sentence of 6 months imprisonment on count 1 and 2 months imprisonment on count 2. Both terms to be served consecutively. He then said that as the Appellant's co-offender was then serving 3 years and 4 months imprisonment the further term of 8 months would be served concurrently. However, as the Appellant was serving only 22 months imprisonment, the further term of 8 months would be served consecutively. That meant that the Appellant's co-offender would be required to serve a total term of 3 years and 4 months imprisonment and the Appellant would be required to serve a total of 30 months imprisonment.

The Appellant raises two grounds of appeal. He first submits that the learned Magistrate failed to take into account mitigating factors. The second ground is the disparity of sentence with his co-offender, the Appellant being given a consecutive sentence of imprisonment while the co-offender was given a concurrent sentence.

I say immediately, in relation to the offences committed, that these were a very low, mean and despicable form of fraud offending. The Appellant deliberately preyed on the gullibility of decent citizens and defrauded them of substantial sums. In respect of the 2 offences now being considered the total loss by the complainants was $1,700.

In imposing sentence the learned Magistrate first looked at the criminality represented by both the offences. He said that a proper sentence was 18 months imprisonment. I agree that that would be a proper sentence for this mean type of offending. However, he said that he took into account the mitigation and reduced that to 8 months imprisonment. He recognised that there were 2 separate offences and properly imposed consecutive sentences of 6 months and 2 months imprisonment on each.

In my view, this sentence of 8 months imprisonment for these 2 offences can be regarded as very lenient. Moreover, as the Magistrate reduced, what he considered to be a proper sentence, from 18 months to 8 months imprisonment, it cannot be said that he failed to take into account the mitigating circumstances. He expressly said that he was reducing the sentence because of the matters raised in mitigation. A very substantial reduction was made.

The Appellant was then serving 22 months imprisonment that had earlier been imposed on 2 separate charges. In deciding whether the further sentence of 8 months imprisonment should be served concurrently or consecutively with that term of 22 months imprisonment then being served, the learned Magistrate properly had regard to the total sentence that would be served if the 8 months imprisonment was made consecutive to the term being served.

The Magistrate was in a good position to be able to do that and give regard to the total criminality represented by all the offences for which the Appellant would then be serving imprisonment. The learned Magistrate was aware that 2 months previously the Appellant had been sentenced to 18 months imprisonment on a charge of false pretences. That sentence on its own shows the level of sentencing that I have indicated as being appropriate for this type of offence. The learned Magistrate had earlier in the day sentenced the Appellant to 4 months consecutive imprisonment on another false pretence charge and would have been fully aware of the nature and circumstances of that charge. The learned Magistrate was also fully conversant with the facts of the present 2 offences, which were separate offences, committed apart from each other and deserving of separate sentences.

The learned Magistrate considered that a consecutive sentence increasing the total sentence to be served by the Appellant to 30 months for all 4 charges, was appropriate. That reasoning cannot be faltered if anything the total sentence errs on the side of leniency and not harshness.

The co-offender received a concurrent sentence of imprisonment. The Appellant points to the disparity of a consecutive sentence being imposed upon him. However, there are differences in the two cases. The co-offender was then serving a considerably longer prison sentence. The Appellant was being sentenced on 2 offences. The co-offender had only committed one offence although by some oversight the sentence was irregularly imposed on both charges. The learned Magistrate had all the facts before him and he decided that a consecutive sentence would make the total sentence too long for the Appellant's co-offender. Again that is somewhat lenient but the learned Magistrate was entitled to come to that decision.

Any disparity is very moderate. The total overall sentence of 30 months imprisonment for the 4 offences committed by this Appellant was a proper sentence. If anything it was lenient. Certainly this Court should not interfere with it on appeal.

For these reasons the Appellant's appeal against sentence is dismissed.

Justice D.B. Pain