Lal v Reginam [1977] FJSC 154; Criminal Appeal 75 of 1977 (15 July 1977)

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

Criminal Appeal No. 75 of 1977

BETWEEN

NOEL MASI LAL s/o Moti Lal
Appellant

AND

REGINAM
Respondent

Mr. Ikbal Khan, Counsel for the Respondent
The Appellant in person.

JUDGMENT

On 7.10.75 the accused pleaded guilty to converting to his own use $4.15 which had been entrusted to him on 17th January 1975 for delivery to Narsu Mullu.

A Probation Officer's report was called for by the magistrate and the question of punishment was deferred to 4.11.75 and then to 21.12.75 on which date the Probation Officer was present but the accused was absent. The accused was eventually arrested and brought before the Magistrate on 22.3.76 when he alleged that he had been in prison as from 20.11.75. His record shows that he was in prison from 20.10.75 for four months following a conviction for false pretences.

The Proceedings were then adjourned from time to time and on 1.6.76 the Probation officer's report was still not ready.

On the next mention date the accused was not present, this was on 6.7.76. Eventually on 5.4.77 the accused appeared under a bench warrant and claimed that he had been in prison since "April 1976". The only relevant conviction which appears in the accused's record shows that on 20.11.75 he was sentenced to 9 months imprisonment for larceny in a dwelling house. In the ordinary way the way the accused would have been released at the end of May 1975 and in fact he had attended the court on 1.4.76, 4.5.76 and 1.6.76. Therefore, how he could have been in prison from April 1976 is not apparent.

On 2.5.77 the Probation Officer's report was still not ready.

On 13.5.77 the Probation officer's report dated 12.5.77 revealed that the accused had been untruthful, unco-operative and had caused the staff to make long journeys to interrogate non-existent relatives of the accused.

The Magistrate quite correctly took a serious view of the accused's behaviour and he sentenced him to 12 months imprisonment, and consecutive "to the present term."

Although the record was typed for the purposes of the accused's appeal against sentence there is no indication as to what the magistrate meant by "the present term." It is something very relevant to the appellate court to know if an appellant is in jail for some other offence, what the offence is and what the term was. It became necessary for the appellate court to make inquiries and ascertain those details for itself. It was learned that he had been sentenced by another count on 20.10.76 to 15 months imprisonment for larceny.

It would have been helpful if the learned magistrate had stated "consecutive to the present term of 15 months imposed at Court for larceny on 20.10.76."

No matter what the accused's behaviour was in relation to the Probation Officer's attempts to get information from him, the accused was not on trial for wasting the time and money of the Welfare Department, nor can he be punished therefore. The offence was the dishonest appropriation of about $5.00 worth of articles entrusted to him. In my view such an offence does not merit 12 months imprisonment. It certainly does not merit 12 months consecutive to a current term of 15 months. Nevertheless I regard the accused as fully meriting some noticeable punishment for the offence in question.

The accused is in much the same position as a person who has been on bail pending the outcome of his appeal. He has not as yet commenced serving the 12 months imposed by the learned magistrate and in the ordinary way would not do so until the expirty of the current term of imprisonment which would be about 20.8.77.

I set aside the magistrate's sentence and replace it by one of four months to be served consecutively to the current term of 15 months.

(Sgd.) J.T. Williams
JUDGE

LAUTOKA,
15TH JULY, 1977