State v Rama [2010] FJMC 183; Criminal Case 1183 of 2009 (13 December 2010)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 1183/2009

STATE

V

KAMAL LATA RAMA

For Prosecution : - Ms. Puamau S.
Accused : - Mr. Sharma.V. (Duty Solicitor Legal Aid Commission)

SENTENCE

1. You KAMAL LATA, the accused, were convicted by this court, for the offence of "Obtaining Money by false pretence", which is punishable under Section 309 (a) of the Penal Code Act 17, entailed a punishment up to five years of imprisonment.
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2. The conviction was entered consequent upon your "pleas of guilty' to the charge on 06 of August 2010 after the Court was satisfied that you fully comprehended the legal effects and that your plea was voluntary and free from influence.
   
3. Summary of facts, as admitted by you before the court, revealed that the offence of "Obtaining Money by false pretence" was committed between 23rd of June 2009 and 15th of July 2009.
   
4. Further, the summery of facts revealed, that you with intend to defraud, obtained $ 3,300 cash from Mr. Samuel Dinesh David by falsely pretending that you were in a position to arrange visa to Mr. Samuel Dinesh David and his family to travel to New Zealand. Mr. Samuel Dinesh David operates a mini – van. You while traveling in the said mini - van as a passenger, told him that you and your sister worked for the New Zeland embassy and could assist Mr. Samuel Dinesh David and his family to obtain visa. You asked him $ 1,700 to process his and his family's applications. Mr. Samuel Dinesh David paid you $ 1,700 on 23rd of June 2009 and again paid another $ 1,100 for medical examination documents.
   
5. This is a case involved a planed opportunistic fraud offence from the vulnerability of the victim. You took the advantage of the victim's desperate position of migrating to a more lucrative country from Fiji Islands.
   
6. Learned counsel who appeared for you made a plea in mitigation on behalf of you. He submitted that the early guilty plea by you be considered substantially in your favour. The Learned Counsel on behalf of you further pleaded for forgiveness and applied for leniency in sentencing as you had now learnt the lessons and would not re-offend. The learned counsel of you was forceful in his plea for non-custodial sentences since even a shortest and sharpest term of imprisonment would not rehabilitate the accused person and now you are in a process of rehabilitation and changed person with the Salvation Army. The learned counsel further submitted that she has to undergo an operation pertaining to her lump in her breast and gold stones in the gall bladder. Moreover, you are suffering from Schizonphrenia.
   
7. At this point I direct myself to consider appropriate sentences on you upon considering the general principle of sentencing under Section 15 (3) of the Sentencing and Penalties Decree and objective of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree.
   
8. The purposes of sentencing you in pursuant to section 4 (1) of the Sentencing and Penalties Decree to punish offenders to an extent and in a manner which is just in all the circumstance, to protect the community from offenders in this nature, to deter offenders or other persons from committing offences of the same or similar nature, to establish conditions to facilitate or promote the rehabilitation of the offenders and more importantly to signify that the court and the community denounce the commission of such offences.
   
9. Justice Goundar in Arun v State (2009) FJHC 231, HAA052.2008, HAA053.2008,HAA054.2008,HAA055.2008, 23 October 2009) found that the tariff for fraud offences including obtaining money by false pretence is 18 months to 3 years imprisonment. It was held that the tariff for the offence obtaining good by false pretence is 18 months to 4 years. ( Mohammed Rizwan v State, 2006, HAA 25/34/06S, Appeal 3 November 2006). It was held in Vinod Prasad v State (2008, HAA 012/08S Ruling 18 April 2008) that 2 years imprisonment term was within the tariff. The tariff for breach of trust sentences ranges from 18 months to 3 ½ years imprisonment. ( State v Bole, High Court of Fiji Criminal Case No. HAC 38 of 2005S (4 October 2005).
   
10. In view of above judicial precedents and provisions of the Sentencing and Penalties Decree and careful perusal of the list of authorities submitted by the prosecution and mitigation submission of the learned counsel for the accused, I now proceed to directed me to determine an appropriate starting point for you. In line with above sentengung guidelines and principles, I select 2 years imprisonment period as a starting point.
    
11. You committed this offence falsely prly pretending that you worked for the New Zealand Embassy and was in a position to assist the victim to obtain family visa to travel New Zealand. You exploited the economic and social vulnerability of the victim, due to which he was desperate to migrate to New Zealand. I am of the view; your act of crime is related to illegal trafficking of persons too. You have a long list of previous convictions for the offences of similar nature. Even though I am not consider this long list of your previous convictions as an aggravating factor, but I disregard your previous good behaviors and possibility of your rehabilitation as you have shown persistence in committing offence of similar in nature.
    
12. The impact of the offence on the victim must be a frustrating and disappointed as he found that you exploited his economic and social vulnerability to commit this offence. Furthermore, you tarnished the integrity and the image of the High Commission of the New Zealand and its employees by falsely pretending that you worked in the High commission.
    
13. You planned the act of opportunistic offence of fraud and committed over a period of one month by obtaining money from the victim in two separate instances. You demonstrated that you have no respect and regard for rights and freedom of other person and law of the country.
    
14. I now draw my attention to address the mitigatory factors in your favors.
    
    1. You are 54 years of age, single,
    2. At present, the accused has been accommodated by the Salvation Army since she does not have any place to live,
    3. Acknowledge the seriousness of the offence,
    4. Remorseful and apologetic,
    5. Sick and suffering from Schizophrenia,
    6. Early guilty plea,
    7. You seek for forgiveness and promise not to reoffend.
       
15. In view of aforementioned aggravating factors I increase 3 years, to reach the period of 5 years. In considering your early guilty plea and other mitigatory factors, I reduce 2 years to reach the period of 3 years. Now your sentence reaches to 3 years period. According to section 26 (2) (b) of the Sentencing and Penalties Decree sentence which is above two years could not be suspended by this court.
    
16. Accordingly, I sentence you 3 years imprisonment period for the offence of Obtaining Money by false pretence contrary to section 309 (a) of the Penal Code Act 17. Further pursuant to section 18 (1) of the Sentencing and Penalties Decree you are not eligible for parole within a period of 2 years.
    
17. 28 days for appeal
    

On this 13th day of December 2010.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.