Kumar v Reginam [1977] FJSC 146; Crim. Appeal 90 of 1977 (20 October 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA

Appellate Jurisdiction
Criminal Appeal No. 90 of 1977

BETWEEN

BALJEET KUMAR s/o Jag Lal
(Appellant)

AND

REGINAM
(Respondent)

No counsel for the Appellant
Mr. S. Matawalu, Counsel for the Respondent

JUDGMENT

This appellant admits that he was born in June 1958 and he is thus over 19 years of age at this stage. In 1974 he was before Magistrates' Court at Nadi on a charge of larceny, in respect of which he was placed on probation for 2 years. At that time there were also previous convictions. On 10th February 1976 he broke and entered the Gateway Hotel at Nadi - a charge which he denied when he was originally brought before the Court on 6th July 1976, but which he admitted on 16th June 1977. A year seems an inordinately long time for a charge to be hanging over a man's head. However on that charge he was sentenced to 16 months imprisonment, which was ordered to run consecutively with other sentences imposed on the same day. Those sentences were a sentence of six months imprisonment for a larceny committed on 13th May 1976, and to which he originally pleaded not guilty but not changed his plea. Then he was charged with a further larceny committed on the 24th August 1976, in respect of which he followed the same course and here he was sentenced to four months imprisonment. Then he pleaded guilty on the same day to a charge of common assault which occurred on 30th August 1976. On that same day he was brought before the Court, in respect of the breach of his probation order and admitted that he had no cause to show why he should not be dealt with on the breach of his probation order because he had committed larceny on 26th June 1975. He was then sentenced to three months imprisonment, to run consecutively to his other sentences. On 21st June 1977 accused was before the Court again – on this occasion in respect of a larceny committed on 6th June 1977, and he was then sentenced to a further 18 months imprisonment for breaking and entering and larceny to be served consecutively to the other sentences he was serving. He now appeals against two of those sentences, arguing that his sentences are too severe, they are the sentence of 16 months imposed in respect of a breaking and entering at the Gateway Hotel on 10th February 1976 and a sentence of 18 months imposed in respect of a breaking and entering at the house of one Hari Singh on the 6th June 1977, and I shall deal with them both together.

Now the total effect of the appellant’s sentences in June 1977 was as follows:

16th June 1977

1. Common assault - six weeks

2. Larceny committed on 21st January 1974 and breach of probation - three months.

3. Larceny committed on 13th May 1976 – six months.

4. (a) Larceny committed 24^th August 1976 – four months

(b) Larceny committed 27th August 1976 -four months concurrent with 4(a)

5. Larceny committed 16th February 1976 - 16 Months

21st June 1977

6. Larceny committed 6th June 1977 - 18 months.

Let me say at once that there is nothing wrong in principle with the sentences imposed by the learned magistrate. There is a truly appalling list of convictions for larceny. However it does seem to me that when the sentences and the offences are considered, the totality of sentences would appear to be unfair to the appellant. The total is 4 years and 2 weeks. I would have thought that was too much, even taking into account the spate of previous convictions. Up to the time the two sentences were imposed in respect of which appeal is made, the total sentences amounted to 14 ½ months. The sentence imposed upon the appellant in respect of the offence committed on 16th February 1976 will be set aside and a sentence of fourteen months imposed, to run concurrently with the sentences the appellant had already been given on 16th June. In respect of the offence committed on 6th June 1977 and bearing in mind the appellant's previous record, there will be a sentence of 21 months imprisonment to run consecutively from the conclusion of the sentence previously imposed. The result will be that the total of sentences will now be 35 ½ months, but without taking into account a recent sentence of five months for escaping from lawful custody, which must be regarded as something entirely different from the larceny charges.

(sgd.) K.A. Stuart
JUDGE

LAUTOKA,
20th October, 1977.