Kumar v The State [2001] FJHC 54; Haa0039j.2001s (2 August 2001)

Fiji Islands - Steven Rajendra Kumar v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 039 OF 2001S

(Suva Magistrates Court Cr. Case No. 281/01)

BETWEEN:

STEVEN RAJENDRA KUMAR

Appellant

AND:

THE STATE

Respondent

Appellant in Person

Mr B. Solanki for Respondent

Hearing: 27th July 2001

Judgment: 2nd August 2001

JUDGMENT

The Appellant was convicted, on his plea of guilty, on the 27th of February 2001, of the following offence:

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309(a) of the Penal Code Act 17.

Particulars of Offence

VINOD PRASAD s/o RAM PRASAD, STEVEN RAJENDRA KUMAR s/o GOVIND, with another between 7th January 2001 and 10th January 2001 at Suva in the Central Division with intent to defraud obtained $7,500.00 in cash from ASHRIKA DEVI BHAGAT d/o DHARMENDRA KUMAR by falsely pretending that one STEVEN RAJENDRA KUMAR s/o GOVIND would marry the said ASHRIKA DEVI BHAGAT d/o DHARMENDRA KUMAR and take her away to Australia.

He was sentenced to 3 years imprisonment. He now appeals against sentence on the ground that it is manifestly excessive.

The State opposed the appeal, saying that the facts showed that the Appellant was part and parcel of a premeditated crime against an innocent woman who believed she was getting married. The State submitted that there were many aggravating circumstances of the case, and no mitigating circumstances.

In the course of the hearing of the appeal, the Appellant’s son, Alex Rajeev Narayan, who is 16 years old, gave evidence that because his father was in prison, he and his siblings had been separated and were being looked after by the church.

The facts of the case, as outlined by the prosecution in the Magistrates Court, are that Ashrika Devi Bhagat advertised in the newspapers, in the year 2000, for a suitable marriage partner. The Appellant under the name of Daniel Pillay wrote to her expressing interest. He and one Vinod Prasad then contacted Ashrika Bhagat and told her that they would be visiting her family with a marriage proposal. On 8th January 2000, they met with her and her parents at a restaurant. They agreed that a marriage would take place. The Appellant and his accomplice, with one Mark Edwards, visited the family in Veisaru, Ba.

The next day, the Appellant, Vinod Prasad and Mark Edwards accompanied Ashrika and her family to Suva ostensibly for the legal marriage. On the way the Appellant and Mark Edwards asked Ashrika for $3,500 to pay, they said, for their visa applications to Australia. She withdrew the money from her bank account and gave it to her mother. In Suva, Vinod Prasad took everyone to the Outrigger Hotel and took the $3,500 from Ashrika’s mother.

The next day the Appellant and his friends had photographs taken (for the visa applications). They then brought a Fijian man to the hotel, telling Ashrika and her family that he was a marriage officer. The man then conducted a false marriage ceremony. Mark Edwards then asked for a further payment of $4000, which Ashrika’s father sent to him. The money was given for immigration purposes. The Appellant then told Ashrika and her mother to return to Ba. They did so, and did not see the three men again. They reported the matter to police. The Appellant was interviewed under caution, and confessed his part in the plan to defraud Ashrika.

In mitigation the Appellant said he had only received $700.00 as a result of the crime. He is 31 years old, and divorced with five children aged between 16 years and 8 years. He is a taxi driver and said he participated in the offence because he was influenced by his friend. In sentencing him, the learned Chief Magistrate said that the Appellant had not learnt from his previous jail experience and that he would start at 5 years imprisonment. He gave him a 1½ year reduction for the guilty plea, and a further 6 months for other mitigating circumstances. The Appellant was sentenced to three years imprisonment.

At this appeal, the Appellant asked for a reduction or suspension of his sentence on the ground that he wished to take care of his children. He said that his mother had died in June and his wife was not interested in looking after the children.

His son confirmed this on oath. His account of a family torn apart by the activities of the Appellant, is a sad one. It is also a

common one. The future welfare of their families appear not to deter offenders from offending, and it is often their families who suffer far more than the offenders themselves.

However, it is apparent that since 1985, when the Appellant was first given a sentence of a fine for Drunk and Disorderly behaviour, he has continued to offend undeterred by the prospect of imprisonment. His eldest son was one year old, when he was convicted of Shop Breaking Entering and Larceny in 1986, and three years old when he was first convicted of five counts of Obtaining by False Pretences in 1988. Thoughts for the welfare of his children did not prevent him from committing Robbery with Violence and Housebreaking offences subsequently.

With his previous record, the Appellant could not expect to be treated with the leniency which is usually shown to a first offender. The plight of his children is unfortunate, but cannot override the duty of the court to sentence in a way that reflects the gravity of the offending.

The offending was grave. The facts disclose a plot to trick an innocent 22 year old woman into a bogus marriage in order to obtain money from her and her parents. The false pretence took advantage of her trust, and was an insult to the institution of marriage. It took advantage of the Indian custom of the arranged marriage, and of a young woman’s desire to migrate to Australia.

This was a most despicable offence and it deserved the three year term imposed. The term is within the tariff for fraud offences.

The appeal against sentence is dismissed.

Nazhat Shameem

JUDGE

At Suva

2nd August 2001

Haa0039J.01S