Narayan v The State [1997] FJHC 93; Haa0007j.97s (24 July 1997)

Fiji Islands - James Shiu Narayan v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 7, 8 & 9 OF 1997
(Suva Crim. Case Nos. 443/95, 2494/94 and 2495/94)

BET

JAMES SHIU NARAYAN
s/o Appal Sami
Appellant

AND:

STATE
Respondent

Mr. J. K. L. Maharaj for the Appellant
Ms. A. Driu for the Staspan>

JUDGMENT

On 26 August 1996 the Magistrate's Court at Suva convicted and sentenced the Appellant to a total of three years' imprisonment on his own plea on three separate files as follows:-

(a) Criminal Case No. 443/95 (Crim. App. No. 7/97

Two counts of obtaining money by false pretences - offence committed between 23rd and 30th March 1994 and 26 April 1990 respectively - sentenced to 2 years' imprisonment on the first count and 5 months' imprisonment on the second count consecutive - a total of 2 years 5 months.

(b) Criminal Case No. 2494/94 (Crim. App. No. 8/97)

Obtaining money by false pretences - offence committed on 2 December 1992 - sentenced to 7 months' imprisonment consecutive to 2 years 5 months - a total of 3 years.

(c) Criminal Case No. 2495/94 (Crim. App. No. 9/97)

Obtaining money by false pretences - offence committed on 26 March 1992 - sentenced to 7 months' imprisonment concurrent to sentences in Case Nos. 443/95 and 2494/94.

I shall deal with the three appeals together.

The appeals are against the severity of sentence.

The learned counsel for the Appellant submits that the total of three years' imprisonment is excessive in the circumstances of this case. He said that the said sentences of 5 months and 7 months should not have been made consecutive to the sentence of 2 years. He submitted that the option was open to the learned Magistrate to impose a suspended sentence of imprisonment bearing in mind that his last conviction was on 28 May 1989 when he was sentenced to 2 1/2 years' imprisonment on 10 counts of fraudulent conversion. Mr. Maharaj has also submitted that whilst he realizes that medical ground is not in itself sufficient to reduce sentence, the Appellant is not in the best of health as can be deduced from the Medical Report on him dated 15 May 1997 from the "Visiting Medical Officer Prisons and Police" to the Commissioner of Prisons.

The learned State Counsel 'concedes' that that she has no objection to him staying at home in the light of the Medical Report on him. She submits that the offences committed by the appellant are serious (all of the same kind) involving sums of $16,000, $5,180, $3,000 and $15,000 making a total of $25,680. She says that the learned Magistrate was justified in imposing the consecutive sentences and that he had considered the proper principles. The Magistrate had taken into account the mitigating factors before sentencing.

This appeal I find is devoid of any merits. The Appellant has committed serious offences involving a total of $25,680 and no moneys have been recovered from him; he is over 64 years of age and is medically unfit to work. The complainants have lost vast sums of money because of the Appellant's dishonesty. It has been urged on the Court that a suspended sentence could have been imposed. The Appellant does not qualify for such a sentence because of his previous convictions. In fact I am of the view that the total of three years' imprisonment was an unduly lenient prison sentence on an offender for a series of this type of offence.

The sentences passed on the Appellant are neither harsh or excessive nor wrong in principle.

Bearing in mind the following principles governing the passing of consecutive sentences and the totality principle the learned Magistrate was quite justified in passing the sentences which he did. On consecutive sentence the then Acting Chief Justice Tuivaga now Chief Justice, stated in ERNEST WHIPPY and REGINAM (Crim. App. 38 to 42/94) that:

"Thus a court should be careful when dealing with a series of cases such as the present not to order a sentence to run consecutively to another sentence if the nett result is to inflate the overall effective sentence out of proportion to the offences concerned."

On totality principle the following passage from PRINCIPLES OF SENTENCING by Thomas 2nd Ed. page 56 is apt:

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is just and appropriate."

The Appellant's deteriorating medical condition has been introduced in this appeal. That aspect is something which the Commissioner of Prisons can himself, if and when he deems it necessary, deal with. All I need say for purposes of this appeal is that I cannot be seen to be over-impressed by personal factors relating to him vis-à-vis the seriousness of the offences which is a matter of great concern to members of the public. To use the words of the LORD CHIEF JUSTICE in REGINA v HARTNETT, ATTORNEY-GENERAL'S reference (No. 60 of 1996) (The Times 27.1.97 p.47) when dealing with crime which was a source of acute public concern:

"The courts should not be unduly swayed by such concern nor indifferent to it. They should, and be seen and understood to punish such conduct severely."

The appeals are therefore dismissed.

D. Pathik
Judge

At Suva
24 July 1997

Haa0007j.97s