Sharma v The State [1998] FJHC 39; HAC0123.1997s (26 March 1998)

Fiji Islands - Arun Prasad Sharma v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAC0123 OF 1997

BETWEEN:

:

ARUN PRASAD SHARMA
Appellant

AND:

THE STr> Respondent

el: Appellant in pern person
Ms A Sukhdeo for Resp Respondent

Hearing: 6th and 26th March 1998
Decision: 26th March 1998

ORAL DECISION OF PAIN J.

This is an appeal against sentence.

On the 25th of August 1997 the Appellant pleaded guilty in the Magistrates court to a charge of obtaining goods by false pretences. Particulars were that he obtained building materials to a value of $265.75 from Carpenters Builders Merchants by using a cheque on a closed account.

After hearing the facts and mitigation from the Appellant, the learned Magistrate addressed remarks to the Appellant and concluded:

"You are hereby fined $300, in default 9 months imprisonment. The sum of $265.75 to be paid to Builders Merchants. Time allowed one month".

The Appellant said that the learned Magistrate made it clear that the payment of $265.75 to Carpenters Builders Merchants was to be paid out of the fine of $300. Counsel for the Respondent accepts that this was the order made by the learned Magistrate pursuant to S.161(1)(b) of the Criminal Procedure Code.

This is an appeal against sentence only. There is no right of appeal against conviction as the Appellant pleaded guilty to the charge. The basis of the appeal is contained in paragraphs 1 & 4 of the Appellant’s petition which state:

"1. I have paid Builders Merchants the sum of $265.75 before I was charged. Further I paid $5 bank service charges.

4. I am satisfied with the judgment and I will pay the fine court costs minus $265.75".

This question of the Appellant having paid compensation is the only issue relevant to this appeal. Other matters that the Appellant has endeavoured to raise are quite irrelevant.

There is nothing in the record to indicate that the Appellant had paid the amount of the dishonoured cheque to the complainant. However, at the hearing he was adamant that he paid that sum plus a bank fee of $5 to Carpenters Builders Merchants at Nausori in two instalments. He said that receipts were written out but he was told that his copy of the receipts would be sent to him by the Head Office in Suva.

In fairness to the Accused, I ask the Respondent to arrange for the Police to check the receipt books at Carpenters Builders Merchants Nausori to see if there were any receipts for the payments by the Appellant during August or September 1996. The hearing was adjourned until today to enable this to be done.

I have now been provided with a Police statement confirming that the Appellant paid the full sum of $265.75 to Carpenters Builders Merchants by payments of $135 on the 20th of August of 1996 and $130.75 on the 2nd October 1996.

This information was not given to the learned Magistrate when he sentenced the Appellant on the 25th of August 1997. It should have been. This failure by both the prosecution and the Appellant has caused the learned Magistrate to unwittingly sentence the Appellant on an erroneous basis. Credit must be given to the Appellant for the payment he has made. A fine that includes the compensation order is not appropriate. It is a double penalty.

From the fine imposed of $300, the sum of $265.75 was to be paid as compensation. The balance of $34.25 was the effective fine. The Appellant says in his petition of Appeal that he is quite prepared to pay this sum. It would be a very lenient penalty for an offence of this nature. Taking into account all the circumstances I will allow the appeal by reducing the fine to $50. Even that is little enough for the offence.

Accordingly, the appeal is allowed and I make the following orders:

1. The sentence imposed in the Magistrates court of a fine of $300 with $265.75 thereof to be paid as compensation to the complainant is quashed.

2. In substitution therefore the Appellant is fined $50. He is given one month to pay. In default 21 days imprisonment.

Justice D B Pain

HAC0123.97\S.Lal