Prasad v The State [2002] FJHC 126; HAA0049J.2002S (14 June 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0049 OF 2002

Between:

VINOD PRASAD
f/n Ram Prasad
Appellant

And:

THE STATE
Respondent

Hearing: 11th June 2002

Judgment: 14^th June 2002

Counsel: Appellant in Person
Mr V. Vosarogo for Respondent

JUDGMENT

The Appellant was sentenced to two years imprisonment on the 16^th of April 2002, by the Nausori Magistrates= Court, for 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, on the 21^st day of August 2001 at Nausori in the Central Division, with intent to defraud obtained $5,000.00 from SARIZA SADIQ d/o Abdul Sadiq by falsely pretending that he was in a position to arrange marriage and visa for Australia for the said SARIZA SADIQ d/o Abdul Sadiq.

He now appeals against sentence, on the ground that on the totality principle, the order that the two year term be a consecutive one to the previous sentences being served, resulted in a harsh and excessive sentence. The State opposes the appeal.

The Appellant was not represented in the Magistrates= Court and he pleaded guilty to the charge on 16^th April 2002. The facts were that the complainant, a 21 year old woman, read an advertisement in the Fiji Times that an Australian man wished to marry an Indian girl. She rang the telephone number in the advertisement, and spoke to the Appellant. He told her that he would call at her house with the man who wished to get married. When she met the man, who came to her house with the Appellant, she agreed to marry him. The Appellant asked for her bank balance. The complainant had no bank account, but her father opened an account for her, and, at the Appellant=s request, deposited the sum of $5,000.00 in it.

At the Appellant=s request, the complainant withdrew the sum of $5,000.00 from the account, and gave it to the Appellant. He told her that he would show the money to the Australian High Commission in order to obtain a visa for the complainant=s travel to Australia. The complainant=s parents later became suspicious of the Appellant, and reported the matter to the police. The Appellant was arrested and charged. The money was not recovered.

The Appellant admitted these facts and admitted 228 previous convictions, most of which are for offences of dishonesty. He was a serving prisoner, due for release in October 2002. The learned Magistrate imposed a sentence of 2 years imprisonment, saying that the Appellant had a shocking record, had stolen from a hard-working family and had not compensated the family for the loss of the $5,000.00.

The two year sentence was undoubtedly within the tariff for offences of obtaining by false pretences. The Appellant was not entitled to the leniency normally shown to a first offender, or to an offender who has shown that he is sincerely sorry for his deeds and has tried to compensate his victims for their loss.

As to whether the sentence should have been ordered to run concurrently, sentences arising from the same transaction are normally ordered to be served concurrently. Where the sentence is for an entirely different transaction, a consecutive sentence is appropriate, unless on the totality principle, the total term to be served is inappropriate for the offender and the nature of the offending. Thus where an offender has committed a series of offences of moderate seriousness, and receives a total sentence which might have been appropriate for a far more serious offence, the sentence should be adjusted by an appropriate reduction. A young offender, who is sentenced to a custodial sentence for the first time might also have his/her sentence adjusted if the total length is not appropriate (R -v- Koyce [1997] EWCA Crim 918; (1979) 1 Cr. App. R(S) 21). Another example of such an adjustment is when an offender is already serving a very long term, and is later given a short term of imprisonment, no useful purpose is served by increasing a long sentence Ato a short degree.@ (R -v- Smith and Others (1981) 3 Cr. App. R(S) 201 per Kenneth Jones J).

The Appellant=s case falls into none of these categories. He is currently serving an 18 month term of imprisonment for an offence of obtaining money by false pretences. With the term passed in this case, his total term (not including remission) is 32 years imprisonment. This is not inappropriate in total, and is neither harsh nor excessive, given the nature of his offending. The premeditation and planning in the commission of the offence, the deceiving of a young girl who was planning marriage and a better life for herself, and the lack of reparation, were all matters which called for a deterrent sentence.

For these reasons this appeal against sentence is unsuccessful.

Nazhat Shameem
JUDGE

At Suva
14^th June 2002