IN THE HIGH COURT OF FIJI
At Labasa
Appellate Jurisdiction

CRIMINAL APPEAL NO. 0017 OF 1995

BETWEEN:

MUKESH CHAND PRATAP
s/o Ram Pratap
Appellant

AND:

THE STATE
Respondent

Appellant in Person
Ms. L. Laveti for Respondent

JUDGMENT

This is an appeal against a sentence of 2 years imprisonment imposed by the Savusavu Magistrate Court on the 3rd of February 1995. The appellant had pleaded guilty to an offence of Larceny by Servant and admitted facts which indicated that whilst employed in the Namalata Postal Agency, Savusavu he stole cash totalling $4,258.12.

The Court record reveals that after his conviction the learned trial magistrate who was "... more interested in getting the money than sending the accused to jail ..." deferred sentence and released the appellant on bail so as to enable him to find and repay the stolen monies. In this way the appellant was permitted to remain 'at large' for almost 10 months before being sent to prison.

If I may say so this was a highly unusual and irregular course to adopt and should not have been followed. In the first place it offends against the mandatory terms of Section 206(2) of the Criminal Procedure Code (Cap. 21); secondly it gives the rather unsavoury appearance of allowing the accused person to 'buy his way out' of an otherwise wholly appropriate custodial sentence and engenders in such an offender the erroneous but not unnatural expectation that he will not be sent to prison.

As was said by Lord Lane C.J. in R. v. George (1984) 3 ALL E.R. 13 in discussing the court's statutory power to defer sentencing, at pp. 14 and 15: 

"The purpose of deferment is therefore to enable the court to take into account the defendant's conduct after conviction or any change in circumstances and then only if it is in the interests of justice to exercise the power. It will, one imagines seldom be in the interests of justice to stipulate that the conduct required is reparation by the defendant. The power is not to be used as an easy way out for a court which is unable to make up its mind about the correct sentence. Experience has shown that great care should be exercised by the court when using this power."
(my underlining)

Furthermore in Inwood (1974) 60 Cr. App. R. 70 Scarman L.J. said of the use of 'compensation orders' at p.73:

"Compensation orders were not introduced into our law to enable the convicted to buy themselves out of the penalties of crime. Compensation orders were introduced into our law as a convenient and rapid means of avoiding the expense of resort to civil litigation when the criminal clearly has means which would enable the compensation to be paid. ... Compensation orders should certainly not be used when there is any doubt as to the liability to compensate, nor should they be used when there is a real doubt as to whether the convicted man can find the compensation."
(my underlining)

Be that as it may, the appellant in presenting his appeal raised an issue of 'disparity' between his sentence and that imposed in the Savusavu Magistrate Court on another postal worker convicted of an identical offence and involving a slighter larger sum.

I am grateful to learned State Counsel for her assistance in providing the relevant sentencing details of the case mentioned by the appellant. It is Taveuni Criminal Case File No: 19 of 1995 in which the accused Taniela Daunibau the postal agent on Qamea Island was convicted on his plea of 'guilty' to an offence of Larceny by Servant of a sum slightly in excess of $5,000 and for which he was sentenced as a first offender to 18 months imprisonment 3 days after the sentence of the appellant was imposed.

In R. v. Stroud (1977) 65 Cr. App. R. 150 the English Court of Criminal Appeal approved the dictum of the Lord Chief Justice in R. v. Brown (unreported) when he said of the 'disparity principle':

"The practice of the court (is) to give effect to what is popularly called 'the disparity argument' ... It arises only when the would be appellant has received a sentence which the court thinks proper in itself but which is so disparate when compared with other sentences passed at the same time that a real sense of grievance may thereby be engendered in the person upon whom it is passed."

In my view bearing in mind the information provided by Learned State Counsel, there can be no doubt that the appellant has received a sentence which is disparate from a sentence passed at about the same time in an identical even more serious case of offending, and that it has engendered in him a genuine sense of grievance which this Court can not allow to continue, more especially, when the only distinction between the cases appears to have been that they were dealt with by different magistrate.

In my view the difference between sentences passed for very similar offences must be justifiable on less capricious grounds based upon a proper application of sound sentencing principles and with a view to maintaining some uniformity and consistency between sentences passed by different magistrates.

As was said by Knox-Mower P.J. in Michael Parma Nand v. R. (1966) 12 F.L.R. 45, 46:

"It is desirable that the Supreme Court (now High Court), through its appellate jurisdiction, should, whenever feasible, ensure that there is some degree of uniformity of sentences imposed by the Courts below."

Accordingly the appeal was allowed and the appellant's sentence reduced to 18 months imprisonment with effect from the 3rd of February 1995.

(D.V. Fatiaki)
JUDGE

At Labasa,
17th July, 1995.
HAA0017J.95B