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.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> State Counsel in opposing the appeal highlighted the appellant's record ofious convictions and the cihe 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 o no better than to draw hiaw 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 hiord of previous convictionstions when
he said (at p.7 of the record):
"You have committeilar offences in the past. The last offence committed by yoby 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 thellant's record of previous ious 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 ligham satisfied that the trial magistrate erred in his reference to the appellant's record of d of previous convictions
in that it ignores and
belittles the appellant'staubstantial 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
