Director of Public Prosecutions v Patel [1991] FijiLawRp 12; [1991] 37 FLR 107 (30 August 1991)

[1991] 37 FLR 107

HIGH COURT OF FIJI

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAOJIBHAI PATEL

[HIGH COURT, 1991 (Scott J), 30 August]

Appellate Jurisdiction

Sentence -fraudulent conversion.

The DPP appealed against fines and a suspended sentence of imprisonment imposed by the Magistrates' Court on an accused who had systematically defrauded his sister in law of substantial sums over a period of years. The High Court allowed the appeal and substituted an immediate term of imprisonment.

No cases were cited.

Appeal against sentence imposed in the Magistrates Court.

I. Wikramanayake for the Appellant
A. Patel for the Respondent

Scott J:

This is an appeal against sentence by the Director of Public Prosecutions.

The Respondent was convicted on 18 March 1991 by the Lautoka Magistrates Court on 17 counts of fraudulent conversion. The amount involved was some $98,000 which had been received by him under a Power of Attorney on behalf of his sister in law, the complainant.

The D.P.P. accepts, for appeal purposes, that the actual loss to the complainant was a figure in excess of $63,000, some $35,000 having been repaid to the complainant's husband but little or no interest having been credited to the complainant's bank account as would have been the case had the sum converted simply been left in the bank. It appears clear that since 1987 nothing has been repaid to the complainant.

The Learned Magistrate imposed a fine of $100 for each of the conversions, a total of $1,700 and in addition he imposed a concurrent term of 12 months imprisonment suspended for 2 years in respect of each offence. The Director now appeals on the ground of manifest leniency.

The Respondent urges that in view of his age and the fact that he was a first offender coupled with his intention to repay the sums converted plus the result to him of any term of imprisonment and its effect on his business which would certainly collapse, the sentence was not manifestly lenient and was within the discretion of the Magistrate properly exercised.

As already pointed out the Respondent was in a position of trust as regards the complainant. The Courts have repeatedly emphasised that such breaches of trust attract custodial sentences save in exceptional circumstances. The 17 fraudulent conversions took place over a period of 3 years. The Defendant simply helped himself to his sister in law's fortune whenever he needed access to it to purchase stock for his business.

In my view the Respondent's conduct was quite disgraceful. The maximum sentence available to the Magistrate was 7 years imprisonment in respect of each offence. I can find no exceptional circumstances as would warrant a departure from the normal rule. I am of the view that the sentence imposed was manifestly lenient and wrong in principle. The appeal succeeds. The sentence is set aside and the fine if paid is to be repaid.

Taking into account the matters raised by counsel and in particular the Respondent's age and his previous good character the Respondent is sentenced to a period of 2 years imprisonment in respect of each offence.

Counts 2 to 17 will be concurrent but consecutive to count 1 making a total of 4 years imprisonment.

(Appeal allowed, sentence varied)