Regina v Naidu [1977] FJSC 157; Criminal Appeal 105 of 1977 (9 December 1977)

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

Criminal Appeal No. 105 of 1977

BETWEEN

REGINA
Appellant

AND

DAVID RAJA NAIDU
s/o Subba Naidu
Respondent

Mr. Ikbal Khan, Counsel for the Appellant
Dr. M.S. Sahu Khan, Counsel for the Respondent.

JUDGMENT

This is an appeal against sentence which has been lodged by the D.P.P on the ground that it is manifestly lenient.

The accused first appeared before the learned Magistrate on 21.9.76 charged with 3 counts of obtaining credit by false pretences and 3 of obtaining money by false pretences. He refused to plead to the charges saying that he first wished to obtain legal advice. His request was granted but he was remanded in custody.

On 4.10.76 he was granted bail.

On 27.10.76. he appeared with his lawyer Mr. Pillay and pleaded Not Guilty to all six charges.

The case was adjourned from time to time and then 28.3.77 was fixed as a hearing date. When the hearing date arrived the accused then pleaded guilty to all the charges.

With regard to the charges of obtaining credit the false pretence was the same namely that he was Managing Director of Federal Pest Control Services and they would settle his account. The victim in each case was the Dominion International Hotel and the amounts were for board, bound and lodging, etc. The amounts involved were $11.35, $13.89 and $13.83 and $49.30 in charges one, two and three respectively.

The obtaining of money by false pretences was achieved in counts 4 & 5 by drawing cheques on a non-existent credit with the Bank of New South Wales. The amounts obtained from 2 different complainants were $60.00, $150.00.

The 6th count was withdrawn.

The accused has 10 previous convictions although he had only made 3 appearances in court. On 19.7.68 he was convicted on seven charges of larceny by servant and received sentences of imprisonment vary from 6 months to 12 months but it is not apparent to what extent they were made concurrent or consecutive. Six years later, on 28.10.68 he was convicted for receiving money on a forged document and for obtaining goods by false pretences and received 12 months and 6 months concurrently.

It appears that on 28.3.76 when he pleaded to the charges herein, he had also appeared before the same magistrate on another charge of obtaining money by false pretences and was fined $100. I am surprised that the learned magistrate did not consolidate that case with the other case file containing the six cases set down for that day.

It was pleaded in mitigation that the accused was not in good health and that he was in receipt of psychiatric treatment but it appears that this treatment commenced after his arrest on the foregoing charges.

In fact he was arrested as he was about to board a plane for Canada.

The learned magistrate called for a probation officer's report and passed sentence on 19.7.77, stating that the accused needed guidance, tolerance and counselling and that he came from a good family.

The probation officer recommended a period of probation although he pointed out that the accused had a tarnished employment record apart from his previous convictions. He says that the accused has been to New Zealand four times, to Australia five times, Canada twice and the States once.

I have considered all that Dr. Sahu Khan has had to say on behalf of the respondent and do not think that the respondent has demonstrated that he is about to become an institutionalised individual regularly in and out of prison who may benefit by a last attempt to guide him from recidivism. His sentence of imprisonment appear to have been followed by periods of inactivity in crime. It is worth nothing that his criminal money making activities have not been related to shortage of money because he has made so many lengthy journeys overseas. In fact following these offences he was arrested getting on a plane for Canada. Presumably he has obtained his fare money from some source.

The report of the Medical Superintendent of St. Giles shows that nothing abnormal has been detected in the respondent.

The offence he committed were not spontaneous but were spread over a period between 1st April 1976 and 17th September, 1976. At the time he committed those offences he was awaiting trial before the same magistrate for an offence of obtaining money by false pretence on 16th June 1972. He had been arrested for that offence and was admitted to bail on 15/12/75. He appeared in Court on 29.12. 70, 6.1.76, 3.2.76. He failed to appear on 1.6.76 and a bench warrant was issued for his arrest. When he was arrested at Nadi about to board a 'plane he was absconding from his bail.

He does not seem to suffer from a shortage of money and is not particular as to how he gets it.

A man who cannot be trusted to respond to his bail, but who commits further offences of dishonesty and then endeavours to abscond to another country does not inspire one to think in terms of probation.

I regard the term of 3 years probation as being manifestly lenient a I set the learned magistrate's sentence aside and I impose the following sentences:-

Count I - Three months' imprisonment.

Count II - Three months' imprisonment concurrent.

Count III - Three months' imprisonment consecutive.

Count IV - Six months' imprisonment concurrent.

Count V - Nine months' imprisonment consecutive.

That is a total of 15 months' imprisonment in all.

(Sgd.) J.T. Williams
JUDGE

LAUTOKA,
9th December, 1977

Director of Public Prosecutions for the Appellant
Messrs. Sahu Khan & Sahu Khan for the Respondent.

Date of Hearing: 18th November, 1977.