Mani v State [2011] FJHC 102; HAA054.2010 (2 February 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

HIGH COURT CRIMINAL APPEAL NO: HAA 054 OF 2010

BETWEEN:

NARENDRA MANI
APPELLANT

AND:

STATE
RESPONDENT

Counsel: For Appellant - In Person
For Respondent/State - Ms. Naidu, S.

Date of Hearing: 19/01/2011

Date of Judgment: 02/02/2011

JUDGMENT

The Appellant pleaded guilty in the Magistrates Court to four counts of Obtaining Money By False Pretences contrary to Section 309(a) of the Penal Code (Cap 17).

On his own plea of guilty Appellant was convicted and was sentenced to 26 months imprisonment.

He appeals against the said sentence on the following grounds:

(i) The sentence imposed is harsh and excessive given the fact that the Appellant had pleaded guilty and that he was at that time a serving prisoner;

(ii) The fact that the Appellant was already serving a sentence for another offence of a similar nature warranted a concurrent term with his present sentence for this matter;

(iii) The Resident Magistrate erred in sentencing principles; and

(iv) The Appellant's mitigating factors were not properly taken into consideration by the Resident Magistrate.

I have carefully considered the submissions made by the Appellant and that of the Respondent.

Grounds 1 and 3 can be considered together.

The Appellant pleaded guilty to the charges and upon conviction was sentenced to 26 months imprisonment. Appellant complains that the sentence of 26 months imprisonment was harsh and excessive and was wrong in principle.

The sentence for the offence of Obtaining Money By False Pretence ranges from 18 months to 3 years imprisonment (Ramesh Chand v State Crim.App. 012 of 2003S). This was followed by Justice Goundar in Arun v State (2009) FJHC 231. The sentence of 26 months imprisonment is well within tariff.

The Appellant is not a first offender. He has previous convictions of dishonesty offences and therefore he is not entitle to any reduction of sentence for previous good character. There were no special circumstances to suspend the sentence of imprisonment. Therefore grounds 1 and 3 are without merit.

Ground 4

The Appellant submitted that his mitigating factors were not taken into consideration by the learned Magistrate. In paragraphs 9 and 10 of his Sentencing Judgment the learned Magistrate has taken all the mitigating circumstances placed before him. Further, for the early plea of guilty 1/3 reduction of sentence too was given to the Appellant. Hence ground of appeal No.4 should necessarily fail.

Ground No. 2

The Appellant submitted, that he had been a serving prisoner, serving 20 months prison term since 5th July 2010 in Criminal Case No. 852/2009, when he was sentenced on 20/7/2010 for 26 months in this case. His contention was that the learned Magistrate should have ordered the sentence of imprisonment in this case to run concurrent with the 20 month sentence of imprisonment in case No. 852/2009.

Respondent(State), referring to the decision in Wang Kam Hong v State[2003] FJHC 13; CAV 0002.2003S(23 October 2003) submitted, that the two offences although of similar nature, are unrelated and occurred on two separate occasions, cannot be considered as a single episode and as such does not warrant a concurrent sentence.

The Appellant in this case was charged under Section 309(a) of the Penal Code Cap (17). The sentencing principle as then existed was set out in Section 28 of the Penal Code Cap 17.

Section 28 (4) of the Penal Code Cap (17):

Where a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence of imprisonment which is passed upon him under the subsequent conviction shall be executed after the expiration of the former sentence, unless the court directs that it shall be executed concurrently with the former sentence or any part thereof:

Provided that it shall not be lawful for a court to direct that a sentence of imprisonment in default of payment of a fine shall be executed concurrently with a former sentence.

The judgment in Wong Kam Hong v State (supra) was delivered on 23rd October, 2003. It seems to me that the above judgment was based on the above sentencing of imprisonment provisions of Penal Code Cap 17, where the sentence of imprisonment for a subsequent offence has to take effect at the expiration of the sentence imposed for a previous offence, unless the court directs otherwise.

This general principle in regard to sentencing has undergone a material change after the sentencing and Penalties Decree of 2009 came into force.

Section 22(1) and (2) of Sentencing and Penalties Decree:

(1) Subject to sub-section (2), every term of imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of imprisonment.

(2) Sub-section (1) does not apply to a term of imprisonment imposed-

(a) In default of payment of a fine or sum of money;

(b) On a prisoner in respect of a prison offence or as a result of an escape from custody;

(c) On a habitual offender under Part III;

(d) On any person for an offence committed while released on parole; or

(e) On any person for an offence committed while released on bail in relation to another offence.

It would therefore appear that there is a clear distinction between the two provisions in the Penal Code Cap. 17 and Sentencing and Penalties Decree, and the Sentencing and Penalties Decree 2009 does not envisage the sentence for a subsequent offence to run consecutively with the sentence for the previous offence, unless the court directs otherwise.

Section 22(1) of the Sentencing and Penalties Decree 2009 gives a discretion for the court to decide whether subsequent sentence of imprisonment should be made consecutive with any uncompleted sentence or sentences of imprisonment.

In this case the learned Magistrate has not exercised his discretion so as to make the sentence of imprisonment in this case to run consecutively on the uncompleted sentence of the previous case No. 852/2009 or on any other previous uncompleted sentence.

On the strength of the Section 22(1) of the Sentencing and Penalties Decree 2009 the general principle should therefore apply.

Therefore I make order that the sentence of imprisonment in this case to run concurrently with the sentence of imprisonment in case No. 852/2009, and with any uncompleted sentences of imprisonment.

Appellant urged an additional ground at the hearing, that the learned Magistrate has not taken into account, the time the Appellant spent in remand.

There is no reference in the learned Magistrates Sentencing Judgment that he took the period, Appellant spent in remand into account.

As per Section 24 of the Sentencing and Penalties Decree 2009, any period of time during which the offender was held in custody prior to the trial of the matter, has to be regarded by court, as a period of imprisonment already served by the offender unless the court otherwise orders. Learned Magistrate has not made any reference to this aspect in his Judgment.

Respondent (State) concedes that the period in remand has to be deducted from the sentence of imprisonment.

Therefore I order that a period of 1 ½ months to be reduced from the sentence of 26 months imprisonment period.

Therefore the final orders are:

(1) Sentence of Appellant reduced to 24 ½ months imprisonment.

(2) The 24 ½ months imprisonment sentence to run concurrently with the sentence in case No. 852/2009, and with any uncompleted sentences of imprisonment of the Appellant.

Appeal is allowed to the above extent.

Priyantha Fernando
Puisne Judge

At Suva
2nd February, 2011