State v Hussein [2011] FJMC 125; Criminal Case 227.2010 (7 October 2011)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 227/2010

STATE

V

IRSHAD HUSSEIN
( 2ND Accused person)

For Prosecution : - Sgt. Luck
2nd Accused person : - In Person

SENTENCE

1. You IRSHAD HUSSEIN were charged and convicted by this court for the offence of "Obtaining Money by False Pretence" contrary to section 318 of the Crime Decree No 44 of 2009, which entails a punishment up to ten years of imprisonment as the first count and the offence of "Conspiracy" contrary to section 327 of the Crime Decree No 44 0f 2009 which entails a punishment up to ten years of imprisonment as the second count.
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2. The conviction was entered consequent upon your "plea of guilty' to the both counts on 20th of July 2010. Having satisfied that you fully comprehended the legal effects and that your plea was voluntary and free from influence I convicted you for these both counts.
   
3. Though your conviction was entered on 20th of July 2010, the sentence was delayed due to the transfer of this case back to the Magistrate court which dealt this matter at the initial stage and subsequently the absconding of the bail by the 1st accused person.
   
4. It is revealed in the summery of facts which you admitted in open court, that you have committed these two offences together with another accomplice. You placed an advertisement in the Fiji Times on 2nd of January 2010 stating that you are a Australian Citizen and looking for a lady for marriage purposes. The Complainant having noticed the sad advertisement approached you and having meeting the parties you agreed to marry the Complainant's Sister. You asked $ 3000 from the complainant in order to arrange visa for his sister to travel Australia with you.
   
5. These two offences are involved with breach of trust by well calculated and pre- meditated deception by the accused person. You chose a young girl and her feelings together with her parents' dignity to commit this disgraceful heinous crime. You and your accomplice planed this deviant crime and carried out it without any remorse. You used the public media to obtain the covert shield for your heinous crime.
   
6. You not only gained undue financial benefit from this crime, but stole the dignity and the family reputation of the complainant and his daughter. Using of a person's feelings and expectations to deceptively obtain material gain must be denounced unconditionally which should warrant effective judicial intervention in order to signify that the civilized society denounced such conduct unreservedly and vehemently.
   
7. Having considered the summery of fact and the aggravating circumstances in this crime, I now turn to the purposes of sentencing you in this case. I emphasized that the main purposes of sentencing you in this case is to punish offenders to an extend and in a manner which is just in all the circumstance, to protect the community from offender in this nature, to deter offenders from committing offences of similar nature, and to signify that the court and the community denounce the commission of offences in this nature.
   
8. I now direct myself to consider appropriate sentence 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. Further I act in line with section 17 of the sentencing and penalties decree as these two offences founded on same facts and / or form s series of offences of the same or similar characters
   
9. It was held that the tariff for the offence obtaining money by false pretence is 18 months to 5 years (State v Sinha - Sentence [2010] FJHC 589; HAC15.2009L (10 December 2010). 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.
   
10. 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).
    
11. In view of above judicial precedents and provisions of the Sentencing and Penalties Decree and careful perusal of the summery of facts I select 3 years as the starting point for the sentencing you for these offences.
    
12. I now draw my attention to address the mitigating factors in your favors.
    
    1. You are 27 years of age,
       
    2. Your early plea of guilt,
       
    3. Self employed,
       
    4. First offender,
       
13. You agreed to pay the half of the amount that you deceptively obtained from the complainant. I do not consider this as a genuine restitution out of honest remorse. Accordingly, I do not consider your effort of restitution as a mitigating factor in your favor. Apart from that, I am of the view that you should be given a discount for delaying of your sentence since your conviction on 20th of July 2010.
    
14. In view of aforementioned aggravating factors I increase 3 years, to reach the period of 6 years. In considering your early guilty plea and other mitigating factors mentioned above, I reduce 2 years to reach the period of four years. I am mindful of the fact that a sentence which is above two years could not be suspended by this court in. pursuant of section 26 (2) (b) of the Sentencing and Penalties Decree.
    
15. Accordingly, I sentence you 4 years imprisonment period for the offence of Obtaining money by false pretence contrary to section 318 of the Crime Decree No 44 of 2009 and for the offence of "Conspiracy" contrary to section 327 of the Crime Decree No 44 of 2009. Further, you are not eligible for parole for a period of 3 years in pursuant of section 18 (1) of the sentencing and penalties Decree.
    
16. 28 days to appeal.
    

On this 7th day of October 2011.

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

Cc:- The Accused,
The Prosecution,
To the Complainant,