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Prasad v The State [2002] FJHC 162; HAA0029J.2002S (4 October 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0029 OF 2002S

Between:

VINOD PRASAD
Appellant

And:

THE STATE
Respondent

Hearing: 27^th September 2002

Judgment: 4^th October 2002

Counsel: Appellant in Person
Mr D. Toganivalu for State

JUDGMENT

On 28^th November 2000, the Appellant was charged with the following offence:

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309 of the Penal Code, Cap. 17.

Particulars of Offence

VINOD PRASAD alias RAMESH s/o Ram Prasad on the 11^th day of August, 2000 at Varoka, Ba in the Western Division, with intent to defraud, obtained from VIJAY KUMAR s/o MOTI the sum of $3032.00 in monies by falsely pretending that he the said VINOD PRASAD alias RAMESH s/o Ram Prasad would obtain passports, air tickets and visa for Australia for the said VIJAY KUMAR s/o Moti, his wife SATYA WATI d/o Shiu Shankar and his daughter IRENE ARTIKA KUMAR d/o Vijay Kumar.

He was sentenced, after he changed his plea to one of guilty, on 15^th January 2002. Much delay had been caused before his change of plea by the Appellant=s non-appearance in court. He was sentenced to 2 years imprisonment, consecutive to his existing term of imprisonment. He now appeals against that sentence.

The grounds of appeal are that the sentence should have been a concurrent sentence, and that his total term of imprisonment, which is in excess of 5 years imprisonment, offends the totality principle.

The facts outlined by the prosecution in the Magistrate=s Court were that the Appellant caused an advertisement to appear in the Fiji Times which stated that an Australian citizen was interested in meeting Indian girls, and that any one interested should write to P.O. Box 698, Nabua. This postal address was the Appellant=s. A 17 year old girl, Irene Artika Kumar read the advertisement and obtained her parent=s permission to apply. The Appellant, with one Earnest Whippy and another couple visited the home of Irene Artika Kumar. The Appellant introduced himself as the uncle of the boy who had advertised. He introduced Earnest Whippy as an employee of the Australian Embassy, and the couple as relatives of the boy. The Appellant then obtained $3032.00 from the parents of Irene Kumar, saying that this was the cost for obtaining passports and visas for the family. He also obtained their birth certificates, marriage certificate and photographs. On 24/8/00, Irene=s father went to Suva to look for the Appellant, after the Appellant had rung him and asked him for a further $1,500.00. He could not find him, and reported the matter to the police.

The Appellant was interviewed by the police. He admitted taking money from the complainant, but said he had only taken $480.00, which he said he had used with his friends.

In court, the Appellant agreed with the facts, but again said he had taken only $400.00. The prosecution accepted the lesser amount. The Appellant had 225 previous convictions, mostly for dishonesty offences. The Appellant submitted oral and written submissions in mitigation saying that he was elderly, was married with 3 children and that he was remorseful. He asked for a concurrent sentence.

The learned Magistrate set out the aggravating features of the case, including the deceitful nature of the plan, and the planning and premeditation involved. He referred to the fact that the Appellant had admitted taking only $400.00. He then referred to the mitigating circumstances including the plea of guilty, his family and his willingness to compensate the complainant for the loss of money. He then sentenced the Appellant to 2 years imprisonment consecutive to his existing term of imprisonment.

I do not think that he erred. A term of 2 years imprisonment was upheld on appeal for a similar charge in Rustam Ali -v- State Crim. App. No. 68 of 1989. In that case the Appellant had 5 previous convictions. In Lawrence Raju -v- State Criminal Appeal No. 98 of 1990, a total of 3 years imprisonment on 3 counts imposed by the Magistrate=s Court, was reduced on appeal to 2 years imprisonment for offences of obtaining by false pretences. In Atil Sharma Crim. App. No. HAA0112.1997 a total of 18 months imprisonment on 2 counts of obtaining by false pretences was imposed by the High Court. In Ramesh Chand -v- State Crim. App. No. HAA0095 of 2001, a total of 18 months imprisonment was imposed by the High Court on 2 counts of obtaining a total of about $27,000, by false pretences.

The tariff for obtaining money by false pretences appears to range from 18 months imprisonment to 2 years imprisonment. The 2 year term imposed in this case is therefore right in principle. The learned Magistrate took into account all relevant matters before sentencing.

The Appellant submits that the term imposed ought to have been concurrent to his existing terms. State counsel disagrees, saying that pursuant to the principle in Krishna & Others -v- Reginam 8 FLR 236, separate and distinct offences should attract separate and distinct sentences. On a perusal of the Appellant=s list of previous convictions, I do not consider that a lengthening of his term of imprisonment by a further 2 years is harsh or excessive. He was sentenced in 2001 to 18 months imprisonment for a separate unconnected offence of obtaining by false pretences. I do not consider that an additional term of 2 years offends the totality principle.

For these reasons this appeal against sentence fails and is dismissed.

Nazhat Shameem
JUDGE

At Suva
4^th October 2002