Sundarjee v State [2007] FJHC 35; HAA025.2007 (20 April 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 025 of 2007

Between:

UMESH SUNDARJEE
Appellant

And:

THE STATE
Respondent

Hearing: 13th April 2007
Judgment: 20th April 2007

Counsel: Appellant in person
Ms A. Tuiketei for State

JUDGMENT

The Appellant was charged with 10 counts of larceny, forgery, uttering forged document and obtaining goods on forged documents. He was sentenced, on his plea of guilty, to 2 years imprisonment. He appeals against sentence saying that the total sentence was harsh and excessive, and that other offenders who had committed similar offences of fraud, had been given suspended terms of imprisonment.

The facts of the case were that between the 1st of June 2006 and the 31st of July 2006 the Appellant was an inmate of Suva Prison. He found three cheques belonging to the Westpac Banking Corporation, numbered 00686, 00087 and 00089. On the 15th of August 2006, he wrote out a cheque for $1503.00 and forged two unknown signatures on the cheque number. He took the cheque to a manager of Safeway Electronic Ltd. and uttered the cheque. He obtained two mobile phones, one blue Tooth Set, one data cable and two re-charge cards.

On the 16th of August he wrote out another cheque for $1198.00 and again forged two unknown signatures. He took it to the same person at Safeway Electronics and obtained two mobile phones.

On the 22nd of August 2006, the Appellant forged the third cheque in the sum of $599 and uttered it to the same person at Safeway Electronics. He obtained two further mobile phones. When the cheques were deposited, the Westpac Bank informed Safeway Electronic that the cheque account was closed. It had formerly belonged to Pacific Sports Monthly which had closed the account on the 12th of July 2004. The Appellant sold the items he obtained to unknown persons at the University of the South Pacific.

These facts were admitted as were five previous convictions, three of which were for obtaining credit by fraud.

In mitigation the Appellant expressed remorse, saying he had been drunk when he committed the offence. He said he had an 11 year old son, and had elderly parents. He was due for release in November 2008.

In sentencing him, the learned Magistrate said that none of the items had been recovered and that restitution had not been effected. He sentenced him to 2 years imprisonment on each count, to be served concurrently to each other and to his present terms. Because of this order, and because his then term would be served in November 2008, in effect the Appellant had received an additional term of only 3 months.

The tariff for fraud offences is from 18 months to 3 years imprisonment. Mitigating factors might be restitution, remorse, good character and any impact on the offender’s employment and career. Aggravating factors would be the value of the money stolen, the period of time over which the offending occurred, the degree of betrayal of trust and the impact on the victims.

In this case there was no restitution. Clearly Safeway Electronics was persuaded to accept these cheques and parted company with items for which they have never been paid. The Appellant appears to be a habitual offender, and despite his family circumstances has continued to offend. The 2 year terms imposed on him were correct in principle. Any reduction of the term will result in no penalty imposed at all, because the sentences he is serving are served concurrently and will only be lengthened by 3 months to January 2009. With remission for good conduct, there may be no further lengthening of the term at all.

The Appellant was in these circumstances, fortunate to receive the sentence he did, and to be serving it concurrent to his other terms. This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
20th April 2007