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Pillay v State [1997] FJHC 68; HAA0023D.1997S (9 June 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO.0023 OF 1997

Between:

BINESH PILLAY
Appellant

And:

THE STATE
Respondent

Counsel: Appellant in person
Mr. P. Petaia for Respondent

Hearing: 6th June 1997

Decision: 9th June 1997

ORAL DECISION OF PAIN J

This is an appeal against a sentence imposed in the Magistrates Court on 1st December 1995. On that day the Appellant was sentenced to one month's imprisonment on each of 1 charge of larceny, 24 charges of forgery and 24 charges of using a forged document to obtain goods. The sentences were to be served consecutively making a total term of 4 years one month's imprisonment. At the same time a suspended sentence of 18 months imprisonment was activated. That made the total term 5 years 7 months.

The Appellant was employed at Eastern Motors as a panel beater. On 23rd February 1995 he stole 2 credit cards from the complainant's vehicle which was at the firm for repair. Between 5th and 25th March 1995, the Appellant unlawfully used the cards on 24 occasions. He signed the complainant's name on the bank vouchers and obtained cash and goods.

These offences were committed at hotels and restaurants in Pacific Harbour and at duty free and other shops at Suva, Sigatoka and Nadi. The Appellant obtained a wide variety of goods including liquor, jewellery, clothing, perfume, watches, video camera, video player, stereo system, radio and camera. He also obtained several thousand dollars in cash.

Total value of goods and cash obtained was $17,707.27. Property valued at $10,034 was recovered. On this basis the nett loss is $7,683.27 although there must be some doubt whether the recovered goods would have retained their original retail sale value.

This must be regarded as serious fraud offending. The offences were deliberately committed on 14 separate occasions and goods of a substantial value were obtained. Forgery is regarded seriously by the legislation. The maximum penalty for these forgery offences committed by the Appellant is life imprisonment. Obtaining goods with the use of a forged document carries a maximum sentence of 14 years imprisonment. The larceny charge has a maximum of 5 years imprisonment.

In imposing sentence the learned Magistrate referred to the seriousness of the offending which he described as "a threat to the commercial well being of the complainant and society". He noted that the Appellant had previous convictions and said that a deterrent sentence was called for. Adopting the 'totality' approach he considered that a total sentence of 4 years imprisonment was appropriate. He then imposed a consecutive sentence of one month's imprisonment on each charge making a total of 4 years 1 month.

This method of approach by the learned Magistrate cannot be faulted. The issue is whether or not the total sentence of 4 years 1 month's imprisonment is manifestly excessive for these offences committed by this Appellant.

I am conscious of the Court of Appeal case of Vishwajit Prasad v The State (Crim. App. No.23 of 1993). In that decision the Court said that in the cases cited by counsel sentences for fraud offences can range from probation to 4 years imprisonment with shorter sentences in between these extremes. The Court further said that it would appear that 4 year sentence is normally reserved for the worse type of cases.

In Heatley v The State (Crim. App. No.3 of 1995) I reviewed four other cases in the Court of Appeal where sentences of 9 months, 15 months, 18 months and 5 years imprisonment had been imposed or confirmed. In Healey's case I confirmed a sentence of two years imprisonment upon a young first offender who had defrauded a bank of $22,500.

No two fraud cases are the same and sentences vary. Generally where large sums are involved a prison sentence is imposed. The length of imprisonment will depend upon the particular circumstances and seriousness of the offending. A young first offender, who has pleaded guilty, is likely to have these matters taken into account by an appreciable reduction in the sentence that would otherwise be imposed.

For the reasons given earlier, the Appellant's offending must be regarded as serious and deserving of a lengthy prison sentence. In this case there is little that can be said by way of amelioration. Indeed there are some matters that militate against leniency being extended to the Appellant.

In the first place, the Appellant has numerous previous convictions for offences of dishonesty. He is not a young first offender which is often a significant mitigating circumstance in these cases. In particular, just 7 months before the commission of these offences he had been convicted of similar offences. A 14 months prison sentence suspended for 2 years was imposed on one charge of forgery and 6 charges of obtaining goods with a forged document. A suspended sentences of 18 months imprisonment was also imposed on a burglary charge 6 months before the commission of these present offences.

A person with this record has lost any semblance of good character and can expect the full sentence that his offending warrants.

Furthermore, this was not just a single isolated offence. The Appellant committed separate serious offences on 24 separate occasions in three separate locations. This was deliberate and persistent criminal fraud offending.

The offending started with a breach of trust when the Appellant stole the credit cards from a client of his employer. The Appellant then used the cards and forged the client's signature. This forgery was a very deliberate and serious criminal act.

This was not offending committed out of need. A considerable quantity of liquor and luxury items were fraudulently obtained.

Certainly the accused pleaded guilty to the charges. However as he had confessed his offending to the police and assisted in the recovery of some of the property, a finding of guilt was inevitable. Nevertheless, the Appellant at first pleaded not guilty to the charges. This resulted in 8 months delay and the unnecessary attendance of 18 prosecution witnesses at Court on one occasion.

The only mitigating factor of any significance is the fact that the accused cooperated with the police and helped recover a considerable amount of property. However, a loss of at least $7,683 was still sustained. The Appellant's offer to pay compensation by monthly instalments is quite unrealistic. If he succumbed to pressure from friends to commit some of the offences, he has only himself to blame. His acceptance of religion while in prison is commendable but does not absolve him from serving his sentence.

In imposing this sentence of 4 years imprisonment, the learned Magistrate has not taken into account things that ought not to be taken into account, has not failed to take into account things he should have or made some error in law. The sentence is not wrong in principle. The only question is whether the term of 4 years is so manifestly excessive that there must have been some error in the sentencing discretion. Whether a sentence is manifestly excessive should be readily discernible (R v Taylor (1985) 18 A Crim. R. 14).

I have taken into account all the relevant facts and circumstances in this case. I cannot say that this sentence of 4 years imprisonment is manifestly excessive for this particular Appellant for this particular offending. It is a severe sentence and close to the upper limit. However it was imposed for serious offending in circumstances warranting some measure of deterrence and with little in mitigation. An appropriate prison sentence for the gravity of the offence is justified. On this basis the sentence of 4 years 1 month's imprisonment is within the acceptable range and should not be altered by this Court.

There is a further matter that has arisen on the appeal that needs to be considered.

After imposing the sentence of 4 years one month's imprisonment on the larceny, forgery and uttering charges the learned Magistrate said:

"Refer to File No. 2302/94 for reactivation of the 13/9/94 18 months prison term."

The conviction list shows that on the 13th September 1994 the Appellant was convicted of School Breaking, Entering and Larceny on Criminal File 2302/94 and sentenced to 18 months imprisonment, suspended for 2 years. The Appellant confirms that this sentence has been activated and is consecutive to the other sentences of imprisonment.

Counsel for the Respondent properly drew the Court's attention to the apparent irregularity of this activation of the suspended sentence, even though it is not specifically included as a ground of appeal.

The activation of a suspended sentence under S.30 of the Penal Code has been considered in numerous decisions of this Court. It has been made abundantly clear that a sentence cannot be activated without giving the offender the opportunity of being heard. In Saimoni Tucila v The State (Crim. App. No.9 of 1996), after considering the statutory provisions and earlier cases, I said:

"Thus there is a statutory obligation on the Magistrate to consider the offenders case and, in considering whether or not it would be unjust to activate the suspended sentence for its full term, the offender must be given the opportunity to show cause why it would be unjust. The practice approved by this Court, is for the offender to be given the opportunity to show such cause on oath."

In several recent cases this Court has set aside the activation of a suspended sentence when this proper procedure has not been followed.

In this case the learned Magistrate did not give the Appellant any opportunity to show cause why the activation of the suspended sentence would be unjust. Nor did the learned Magistrate consider the overall term of imprisonment with the consecutive activated sentence to see if it was appropriate for the total criminality represented by all offences.

Counsel for the Respondent conceded that the activated sentence should be set aside. This seems appropriate in the particular circumstances of this case. The proper procedure has not been followed and a sentence of 18 months imprisonment to be served consecutively to the severe 4 year sentence may be excessive for the total offending. The Petition of appeal sufficiently covers an appeal against the activated sentence. It is headed as "a Sentence Appeal on Case Number 2302/94 and 899/95". Case No. 2302/94 is the file in respect of the activated sentence of imprisonment. The additional grounds of appeal refer to a sentence of 5 years 7 months imprisonment which is the total sentence for both the forgery and uttering charges and the activated sentence. It is a ground of appeal in the petition that there has been a miscarriage of justice and that the sentence is harsh and excessive.

Accordingly I make the following orders:

1. The appeal against the sentence of one month's consecutive imprisonment imposed on the Appellant in the Magistrates' Court on 1st December 1995 on each of 49 charges of larceny (1), forgery (24) and obtaining goods by a forced document (24) is dismissed.

2. The appeal against the order made in the Magistrates' Court on 1st December 1995 activating the suspended sentence of 18 months imprisonment imposed on the Appellant on 13th September 1994 on a charge of school breaking, entering and larceny is allowed and that order is quashed.

Justice D.B. Pain