| Fiji Islands - Atil Sharma v The State - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 112 OF 1997
BETW>BETWEEN:
ATIL SHARMA
APPELLANT
AND:
THE STATE
RESPONDENT
Apnt - In Person
n
Mr. Kenneth Wilkinson - for the State
JUDGMENT
RE: Mr. ATIL SHARMA
BACKGROUND:
1. Tatter concerns an Appeal byal by Mr. Sharma against the Sentences imposed by the Magistrate sitting at Suva on 3rd December, 1996.
Following the Appellant's pleas of guilty to two Charges of Obtaining Money by False Pretences contrary to Section 309(a) of the Penal Code, the Magistrate sentenced Mr. Sharma to 6 months and 18 months imprisonment respectively.
The Magistrate ordered the 6 months (Charge 1) to run consecutively to his "present term". Concerning Charge 2 (apart from saying 18 months) the Magistrate
makes an incomplete and confusing Order. The Magistrate says the 18 months is to run concurrently with his "present term",
but does not say whether the 18 months is to run consecutively to or concurrently with the 6 months for Charge 1.
2. In each of the 2 Charges (referred to) there was a Co-Defendant appearing with the Appellant.
In Charge 1 - the Co-Defendant received 6 months imprisonment (same as the Appellant - but to run concurrently with his "present
term"
In Charge 2 - the Co-Defendant received 18 months imprisonment (same as the Appellant) to run concurrently with his "present
term".
3. From reading the Magistrate's Record it was impossible for me to determine what was meant by "present terms". The Police
Criminal Records only went up to December 1994 for the Appellant, and. to July 1993 for the Co-Defendant. I therefore returned the Case File to the Magistrate for clarification.
I needed to know what the position was for each Defendant as at December 1996. Unfortunately, the Magistrate simply wrote on the
Papers in pencil "2 1/2 years" and returned them.
That was inadequate. I needed the actual Police Record.
Fortunately today Mr. Wilkinson (for the State-Respondent in this Appeal) has produced an up-to-date Record. Despite our best efforts
neither of us are able to reconcile the Magistrate's Record (2 1/2 years) with the Police Record. Later I was told that it was the
Appellant himself who told the Magistrate that his present term was 2 1/2 years!
4. There was an additional and separate "sentencing matter" which should have also been considered by the Magistrate. On
the Record before him on 3rd December, 1996 was an entry that the Appellant was the Subject of a "Suspended Prison Sentence
Order". That Order had been made on 7th December, 1994 when this Appellant had been sentenced to 12 months imprisonment for
Assault - the Sentence being suspended for 24 months (2 years). The two offences with which I am dealing today were committed between
24th and 29th November, 1995 - in the middle of the 24 month suspension period (which ran from December 1994 to December 1996).
Unfortunately the Magistrate failed to deal with this breach when considering what Prison Sentences to impose on Mr. Sharma. The Magistrate
had a duty to do so (Sections 29/30 Penal Code).
5. Against this background the Sentencing Orders made by the Magistrate in December 1996 concerning this Case were muddled and unsatisfactory,
and certainly needed revision.
GROUNDS OF APPEAL:
6. The Sole Ground of Appeal is set out in the Appellant's undated letter sent from Korovou Prison. Not surprisingly he complains
about the apparent disparity of the 6 months imprisonment imposed in Charge 1 where the Magistrate makes an (unexplained) Consecutive
Order for Mr. Sharma (the Appellant) and a Concurrent Order for his Co-Defendant (Mr. Chandra).
CIRCUMSTANCES OF THE CASE:
7. The Appellant and his friends acted as confidence trickstars. They preyed on unfortunate women by falsely promising them the provision
of Visa Documents and persuading their victims to part with their money ($2,500.00 and $3,000.00 in Charges 1 and 2 respectively).
MITIGATION AT THE TRIAL:
8. The Appellant put forward a number of points : guilty plea; age 28; married; remorse; under influence of his peers; and asking
for a concurrent sentence.
I looked in the Record for the mitigation submitted by the Co-Defendant. It was missing. The Record simply said:
"Accused 2 mitigation --- see attached herewith".
Unfortunately it was not attached and was nowhere to be found.
STATE COUNSEL (RESPONDENT) REPLY:
9. The State Counsel agreed that them was an apparent disparity in the Sentences imposed - but submitted that even so the Court was
not always bound to alter or adjust the Sentences. There was also the matter of the Suspended Sentence which should have been considered
at the time of the sentencing in December 1996.
APPEAL RULING:
10. It is quite impossible to determine from the Record why Magistrate differentiated between the Appellant and the Co-Accused (Mr.
Chandra) in making consecutive and concurrent sentences in respect of the first Charge. Nor is it possible to determine to what he
"attached" those sentences ("the present term").
11. The Sentencing Orders for this Appellant (and his Co-Defendant) by the Magistrate on this occasion needed to be made with extra
care and in logical sequence. Extra care to be taken because there was more than one Defendant, more than one Charge, and more than
one set of Sentences.
The Magistrate should have considered matters in the following sequence:
(1) To consider what sentences he (the Magistrate) is going to impose on each of the Charges (for each of the Defendants) before him
on 3rd December, 1996; (in this case he ordered 6 months and 18 months for each Defendant);
(2) To decide - having regard to the Mitigation and the Totality-whether the Sentences imposed on each Charge should run consecutively
or concurrently with each other (i.e. in this case a real total of 24 months or a real total of 18 months). (He did not make an order in this respect);
(3) After deciding the 'real' total and again taking into account 'Mitigation' and 'Totality', the Magistrate should go on to decide
whether the total of his sentences should run consecutively or concurrently with sentences already being served. (Normally they should
run consecutively if they are for entirely separate matters). To avoid confusion and misunderstanding the precise length of Sentences
being served should be quoted.
(4) As a separate exercise (and he has a statutory duty to do this) the Magistrate should go on to what Order should be made concerning
the breach of the Suspended Prison Order made in 1994 (Sections 29 and 30 of the Penal Code);
The Magistrate should look at the dates of the Offences he is trying (in this Case 23/24 November 1995 and 28/29 November 1995 and
determine whether these 0ffences have been committed during the Operational Period of the Suspended Prison Sentence Order (December
1994 -December 1996).
The Appellant was clearly in breach of the Order made in December 1994 and the 12 months imposed here should have been added to any
current imprisonment Order - unless the Magistrate gives specific reasons for not doing so.
CONCLUSION/SUMMARY:
12. Taking into account all the Matters I have mentioned and those submitted to me by Counsel, I make the following Orders concerning
Mr. Sharma (the Appellant).
(1) For Charge 1 - 6 months imprisonment
(Magistrate's Order unchanged)
(2) For Charge 2 - 18 months imprisonment
(Magistrate's Order unchanged)
(3) These Sentences to run concurrently with each other
(Total 18 months)
(4) This 18 months to run consecutively to the prison term being served on 3rd December, 1996.
(5) No separate Order made on the 'Suspended Prison Order' breach. I have taken it into account in formulating the Orders made at
(1)-(4) above.
Peter Surman
JUDGE
At Suva
20th February, 1998
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