Sharma v The State [2005] FJHC 562; HAA0097.2005L (8 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0097 OF 2005L

RAM NARAYAN SHARMA

V

THE STATE

Date of Hearing: 8 August 2005
Date of Judgment: 8 August 2005

Appellant in Person
Mr. N. Nand for the State

JUDGMENT ON APPEAL

This is an appeal against sentence. The appellant was convicted following his plea of guilty before the Ba Magistrates Court on the 11^th March 2005 with respect to one count of larceny, which related to four Westpac Banking Corporation cheques, four counts of forgery with respect to those cheques, four counts of uttering forged documents with respect to those cheques and four counts of obtaining money on forged documents, again in relation to those same cheques, a total of 13 charges.

The facts as they were presented to the Learned Magistrate were that between the 1^st September 2004 and the 30^th November 2004 at Sarava Ba, the appellant being a 23 year old labourer, stole 4 cheque leaves, the property of the Westpac Banking Corporation from the Sarava Dharam School. The school had a cheque account with the Westpac Banking Corporation, Ba Branch. The appellant was staying in the school quarters as he was staying with his mother-in-law who was the typist at the school and he had access to the school office because of the mother-in-law and also at times, he used to repair the computer in the office.

Between the dates stated, the appellant took advantage of the opportunity and stole the cheque leaves, he forged the documents, he obtained goods and cash on the forged documents. On all four cheques, the appellant forged the signatures of Rattan Kumar, who is the manager of the school and Sunil Lal, an accountant of Navau, Ba who is the treasurer of the school. The cheques were respectively cashed at various places in and around Ba and Lautoka and the monies obtained used by the appellant. The appellant was arrested and on arrest admitted the commission of the offences. A plea of guilty was entered when the matter came before the Learned Magistrate.

The offences with which the appellant has been convicted and sentenced each carry a maximum penalty of 14 years imprisonment with the exception of larceny which carries a maximum term of 10 years imprisonment.

The appellant puts before the court that the appropriate sentence by reference to other sentences received by other accused is a suspended sentence.

The State however submits that the offence was committed over a lengthy period of time and there was no restitution, that he held a position of trust by the school and he breached the trust. The State also points out that the Learned Magistrate imposed concurrent sentences whereas on the application of proper sentencing principles, as the offences were committed over a period of time and were separate and distinct offences albeit related, it would have been appropriate for consecutive sentences to have been imposed and for those consecutive sentences then to have been approached upon the totality principle.

In State v Sanjay Shankar Sharma – HAC0003 of 2005S where the accused had pleaded guilty to 12 counts of larceny, uttering forged documents and obtaining money on forged documents, Madam Justice Shameem said:

“The tariff for fraud offences is 18 months to 3 years imprisonment with suspended sentences reserved for cases where there has been full restitution as an indication of remorse.”

I repeat, that in this instance, the amount of money involved is stated to have been in the order of $760.00 but there has been no restitution. Considering that the tariff is in the range of 18 months to 3 years and taking account of the number of offences and that the Learned Magistrate imposed concurrent sentences and also taking account of the circumstances surrounding the commission of the offences, I am of the opinion that there is nothing in the record to indicate that the finding or sentence of the Learned Magistrate was wrong in principle or that the sentence imposed was manifestly excessive and accordingly the appeal is dismissed.

John Connors
JUDGE

At Lautoka
8 August 2005