State v Prasad [2014] FJMC 142; Criminal Case 570.2008 (30 October 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal Case No: - 570/2008

STATE

V

ALVIN PRASAD

WPC Kalara for the Prosecution
The Accused absent .

SENTENCE

1. Yesterday this Court found the accused guilty and convicted for one count of Obtaining Money by False Pretence contrary to section 309(a) of the Penal Code, Cap 17.
   
2. The trial proceeded in absentia and it was revealed during the trial that the accused obtained $40,698.00 from the complainant promising to arrange Australian Visas for him and his family. Later the complainant discovered at the Nadi airport that he was given false visa documents which led to the arrest of the accused. Later he absconded from this case and still in the run.
   
3. The maximum penalty for this offence is 05 years imprisonment. .
   
4. In State v Sinha [HAC 15 of 2009] his Lordship Justice Madigan said that the tariff is from 18 months to 05 years, difference being the amount obtained.
   
5. The aggravating factors are the systematic manner of committing this offence for a long period of time , the amount involved and trying to shift the blame to another person during the police investigation which pointed lack of remorse on his part .
   
6. The accused is absconding and therefore I have no opportunity to consider his mitigating factors apart from his past good behavior which was submitted by the prosecution .
   
7. Considering the al the facts I select 02 years as my starting point and add 02 years for aggravating factors to reach 04 years. For his past good behavior I deduct 01 year to reach 03 years imprisonment.
   
8. In State v Raymond Roberts ( HAA0053 of 2003S), Madam Justice Shameem held that:
   

" the principles that emerge from these cases are that a custodial sentence is inevitable where the accused pleaded not guilty and makes no attempt at genuine restitution. Where there is a plea of guilty, a custodial sentence may still be inevitable where there is a bad breach of trust, the money stolen is high in value and the accused shows no remorse or attempt at reparation".

9. The accused has made no restitution and also absconding from this case which clearly demonstrated that he has no remorse . Therefore I sentenced him to 03 years imprisonment for the offence of Obtaining Money by false Pretence contrary to section 309(a) of the Penal Code with a non parole period of 01 year.
   
10. As the accused is absconding this sentence will be activated from the date of his apprehension.
    
11. 28 days to appeal
    

30th October 2014

H.S.P.Somaratne
Resident Magistrate, Suva