Sharma v State [2008] FJHC 147; HAA037J.08S (11 July 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 037 of 2008

Between:

RAM CHAND SHARMA
Appellant

And:

THE STATE
Respondent

Hearing: 4th July 2008
Judgment: 11th July 2008

Counsel: Appellant in person
Ms A. Tuiketei for State

JUDGMENT

The Appellant was imposed a 3 year term of imprisonment for a total of 7 counts of obtaining credit by false pretences, contrary to section 309(a) of the Penal Code. The charges allege that he obtained sums of money from Rups Big Bear Ltd. by issuing cheques knowing there were insufficient funds to honour the cheques. He appeals against sentence, saying that the total of 3 years imprisonment is harsh and excessive.

The charges all relate to October and November 2004. The Appellant was first brought to court on the 6th of December 2004, and he pleaded not guilty on the 17th of December.

There were several non-appearances by the Appellant, from the 28th of February 2005 to the 11th of October 2005, on the 29th of December 2005 and from 20th September 2006 to the 15th of December 2006. He was then a serving prisoner until the 6th of March 2007 when a hearing date was vacated to allow him "to see his lawyers." Despite the fact that he had in the past, been given considerable lengths of time to instruct counsel, the hearing date was vacated. Finally on the 16th of April 2007 the Appellant told the court that he did not need a lawyer. Another hearing date, on the 19th of June 2007 was vacated because three prosecution witnesses had failed to appear. Similarly on the 1st of November, the prosecution said that some witnesses could not be traced, and another hearing date was vacated. Finally on the 13th of March 2008, the Appellant changed his plea.

The facts were that in October and November 2004, the Appellant obtained a 2 door freezer, a 6 burner gas stove, a washing machine, a DVD player, a television set, sitting room furniture and a bed for the total value of $60,082.00 from Rups Ltd. On each purchase, he presented a cheque on ANZ cheque accounts knowing that the accounts had insufficient funds in them. He also cashed cheques from various ANZ accounts and obtained money from Rups Ltd. knowing he had insufficient funds in his account. The total was $27,250.00.

These facts were admitted. The Appellant had 13 previous convictions, 6 of which were for the same offence. In mitigation, the Appellant said that he was a changed person, that he was 57 years old with 4 daughters and that there was no one to look after them. He said he was willing to reimburse Rups Ltd. with the defrauded money, and that he needed a non-custodial sentence so that he could support his children.

The learned Magistrate correctly referred to the tariff for fraud cases as being between 18 months to 3 years imprisonment and picked a starting point of 2 years imprisonment. After adjusting for aggravating and mitigating factors, he sentenced the Appellant to 3 years imprisonment on each count, to be served concurrently. There was recovery of the furniture and white goods.

The Appellant, at the hearing of this appeal said that this sentence was excessive and that his children were disadvantaged because of his sentence of imprisonment. He firstly said he was supporting 6 children and that there was no one to look after them, but when it was pointed out to him that he had told the lower court that he had 4 daughters, he said that his children were in the care of the Social Welfare Department and that he was also taking care of his brother’s children. Upon further enquiry, he said that his children (the eldest of whom is 29 years old and married) are looked after by his in-laws.

The State opposes any reduction of the sentence, saying that it was correct and principled.

Most sentences for offences under section 309 of the Penal Code fall within the tariff of 18 months to 3 years. However sentences of up to 4 years imprisonment have been passed where the accused is a habitual fraudster and has preyed upon the vulnerable in a systematic and calculated way (State v. Ramesh Chand [2004] HAA0001J.2004S; Mareca Duibana Bese v. State [2005] HAA 0060/05S).

In this case, the fraud was systematic and calculated. The Appellant benefitted from it to the tune of about $21,000. Although he has been promising to pay the complainant back, he has, since 2004, taken no steps to do so.

There are very few mitigating factors. One of them is the guilty plea, although the record shows that he did not enter a guilty plea until 2007.

In these circumstances the Appellant deserved his three year term. I see no reason to reduce it. This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
11th July 2008