| Fiji Islands - Latchman Prasad Sharma v The State - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction
CRIMINAL APPEAL NO. 0043 OF 1996
BETWEEN:
LATCHMAN PRASAD SHARMA
s/o Uma Shankar
Appellant
AND:
THE STATE
Respondent
Appellant in Person
Mr. D. McNaughtan for State
JUDGMENT
On the 18th of March 1996 the appellant was convicted after he pleaded 'guilty' to three (3) offences in the Nausori Magistrate Court, and was sentenced to consecutive terms of 9 months imprisonment on each count making an aggregate of 27 months imprisonment.
He now appeals against the sentences imposed on the grounds that they are 'harsh and excessive' and ought to have been made 'concurrent'.
The brief facts of the case are that the appellant at the time of committing the offences, was a P.W.D. driver. He received a Government of Fiji cheque which he forged by altering the words and figures so that instead of $96.59 it read $9096.59. He then used the forged cheque to purchase a vehicle and also received $1000 cash and a cheque for the balance from the complainant. The offence was discovered when the appellant's cheque was presented for
payment and was dishonoured. He was later apprehended and charged.
At the hearing of his appeal, the appellant who is a grandfather of 40 odd years expressed his remorse and asked to be given "one last chance". He explained that he was driven to commit the offences by his brother who needed the money for a daughter's wedding.
State Counsel in opposing the appeal highlighted the appellant's record of previous convictions and the circumstances of the offence.
He conceded that he was unable to support the trial magistrate's consecutive order but argued nevertheless that the total sentence
of 27 months was neither harsh nor excessive. I cannot agree.
As for the circumstances of the offence I cannot help noting that the manner in which the appellant's cheque was filled in lent itself
to forgery in so far as the inappropriate 'Thousands' box was incompletely crossed horizontally instead of diagonally from corner to corner as it should have been. Furthermore mindful
that the complainant's car and cheque have been returned to him, at best, the appellant got $1000 cash and the free use of the complainant's vehicle for five (5) days. Neither of these factors excuses the commission of the offences but undoubtedly are relevant considerations in the context of the appellant' appeal against sentence.
As for the trial magistrate's order that the sentences should be served consecutively I can do no better than to draw his attention
to what this Court recently said in reducing the sentence in a case which also arose in the same magistrate's court, namely, Rajiv Kumar v. The State Cr. App. No. 22 of 1996 and which judgment was delivered on 10th July 1996. Suffice it to say that the trial magistrate's consecutive order was clearly 'wrong in principle' and cannot be upheld.
Like State Counsel the trial magistrate in sentencing the appellant also made reference to his record of previous convictions when
he said (at p.7 of the record):
"You have committed similar offences in the past. The last offence committed by you was last year. You do not seem to learn any
lesson at all from your past court appearances."
In saying so the trial magistrate appears in my view to have been unduly influenced by the appellant's record of previous convictions
which, if examined carefully, reveals that the appellant's last conviction for an offence of dishonesty occurred in 1990, and since then, he has remained out of trouble for 5 years until his latest irrelevant convictions in my view in 1995, for two minor wholly dissimilar offences for which he was fined.
Viewed in that light, I am satisfied that the trial magistrate erred in his reference to the appellant's record of previous convictions
in that it ignores and
belittles the appellant's substantial efforts to rehabilitate himself over the past 5 years and, in doing so, the trial magistrate imposed a sentence which was both 'wrong in principle' and somewhat 'excessive'.
The appeal is accordingly allowed, and the sentences are ordered to be served 'concurrently' with effect from 18th March, 1996.
D.V. Fatiaki
JUDGE
At Suva,
23rd August, 1996.
Haa0043j.96s
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