Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Menon [2010] FJMC 150; Criminal Case 926.2009 (23 March 2010)

IN THE RESIDENT MAGISTRATE’S COURT AT SUVA

Criminal Case No: 926 of 2009

DPP

V

SURENDRA MENON s/o Narayan

For Prosecution: Mr. Waqavonovono with Ms. George (DPP)
For Accused: Mr. Samad I.

SENTENCE

1. You, SURENDRA MENON, are here today, to be sentenced on admission of guilt on your own accord for the following offences namely:
   
   1. Obtaining money by false pretence (Contrary to sec. 309 (a) of the Penal Code)
      
   2. Operating a business without being duly Licensed (Contrary to Sec. 15 (2) (b) of the Real Estate Agent Act 2006.
      
2. On 25th February 2010, commencing their case, prosecution called two witnesses to testify including the complainant. Case then adjourned to the next date, enabling the prosecutor to call the remaining witnesses. However, when the case called on 26th February 2010, through your counsel you informed the court that “you are pleading guilty for both counts”.
   
3. You admitted the brief summary read out in the court and on your behalf your counsel made mitigating submissions. Counsel for the prosecution filed “Sentencing submission”.
   
4. According to the facts (which you have admitted), on 21st March 2009, you have advertised in Fiji Times for a flat for rent. Complainant contacted you on the mentioned phone number and went with you to see the flat. Complainant agreed to pay $250 as monthly rent and asked you do some repairs which you agreed to do. Then she paid you $250 as a bond for which you have issued a receipt under the name of “Menon Real Estate”. When complainant visited the flat she had found that no repairs were done. She didn’t occupy the flat and in another few days ask for refund of her bond. You have refused to return the money. After investigation it was revealed that “Menon Real Estate” was not registered.
   

Maximum Sentence and Tariff

5. Maximum sentence for the offences under Sec. 309 (a) of the Penal Code is ‘five years imprisonment”. Penal provisions for offences under sec. 15 of the Real Estate Act 2006 are set out in Section 82 of the Real Estate Act.
   

Penal provisions as far as applicable to this case
According to sec. 82(2)(a)(i):

“(2).Where a person is convicted of an offence under sec. 15, 36.........., that person shall be liable:

(a) In the case of a natural person:

• (i) To a fine not exceeding $10,000 in respect of a first offence.”
  

According to sub section (3):

“(3). Where:

(a). A natural person is convicted of an offence under this Act; and

(b). The court by which the person is convicted is satisfied that the offence was committed with the intent to defraud another person,

The court may, instead of, or in addition to, any penalty which it may impose under subsection (1) or (2), sentence the person to imprisonment for a term not exceeding 3 years.”

6. Maximum sentence prescribed by the law for the offence of “Obtaining money by false pretence” is five years imprisonment. According to the Fazir v. State – 2008 FJHC 319 on 18th November 2008, tariff for the offence is two years imprisonment. While giving his reasons Justice Mataitoga held as follows:
   

“In reviewing the sentence passed by the trial Magistrate, I find that his choice of 2 years imprisonment as starting point of his sentence determination, for the Obtaining Money By False Pretence counts, is proper and within tariff: State v Saukilagi [2005]FJHC 13; HAC 002 of 2004. I accept his reasoning as correct.”

7. According to Justice Goundar in Arun v. State [2009] FJHC 231 on 23rd October 2009, “the tariff for fraud offences including obtaining money by false pretence is 18 months to 3 years imprisonment (Ateca v. State [2002] FJHC 175; HAA0071J.2002S (4 October 2002); State v. Chand [2004] FJHC 53; HAA0001J.2004S (27 February 2040); Rukhmani v. State [2008] FJHC 134; HAA056J.08S (4 July 2008)."
   
8. DPP counsel in his written submission, mentioned Bese v. State [2005] FJHC 160; HAA0060. 2005 by Justice Winter on 04th July 2005 and emphasised the fact that the tariff for the offence of "obtaining money by false pretence" is 18 months to 3 years imprisonment.
   
9. This is your first offence. You plead guilty to both counts. However, you guilty plea is not an early guilty plea. So you are not entitle for 1/3 reduction of sentence. I set my starting point of sentencing for 02 years.
   

Aggravating Factors

10. Crime you have committed started with the advertisement which you have put in Fiji times. You advertised under the name of "Prestige" without any authority. With that particular advertisement, you targeted a lot of unknown people. After obtaining money you have issued a receipt under a name of a bogus company. You are neither a licence holder nor a registered real estate agent. You refused to refund the complainant until such time she filed a police complaint.
    
11. Considering above-mentioned as aggravating facts I add another six months to your sentence.
    

Mitigating Factors

12. You are a first offender, so you are entitled for a discount for your previous good behaviour. You have reimbursed the money to the complainant. However, I cannot consider this as this as genuine display of remorse. You have four children and you are 43 years of age. You are the sole breadwinner of the family.
    
13. According to your counsel, you have retuned all the money you owed to the complainant and in addition $194 had been paid. You are remorseful of your actions and in the event of a custodial sentence your family would suffer.
    
14. To reflect all these mitigating facts, I reduce 06 months from your sentence. For your late guilty plea I reduce another 02 months. Your total sentence now stands for 22 months imprisonment.
    

Determination

15. Your total imprisonment period now stands for 22 months imprisonment. I am mindful to the fact that sentences, which are 2 years and below, could be suspended. State Counsel is of the view that suspended sentence is too lenient and had prayed for a custodial sentence to reflect the gravity of the offence.
    
16. When considering an appropriate punishment for the second count, as per subsections of the sec. 82 of the Real Estate Agents Act of 2006, I have few options.
    

(i). To impose a fine not exceeding $ 10,000 under sec. 82(2)(a)(i), or

(ii). If I am satisfied that you have committed this offence with the intention to defraud another person,

1). Instead of the fine, sentence you to imprisonment for a term not exceeding 3 years; or

2). In addition to the fine, sentence you to imprisonment for a term not exceeding 3 years; or

17. In this case I am of the view, that a combination of a fine and an imprisonment period is too harsh on a first offender. I am satisfied that a fine is appropriate in this circumstance. Hence, I impose a FJ$ 1000 fine for the second count.
    
18. According to my observation, Fiji legal system usually had bent backward to save first offenders from a custodial sentence. Re: Moses Nariva v. The State (Cr. App. HAA 148/ 2005).
    
19. You are a first offender. Hence, I am of the view that you should not be sentenced to imprisonment. You are thereby sentenced as follows.
    

Count 01

You are sentenced to 22 months imprisonment. The term is suspended for 36 months.

Count 02

Fined FJ$ 1000. In default 03 months imprisonment. You have 28 days to pay.

20. You are warned that, if you commit any offence during these 36 months period and found guilty by the court, apart from any other sentence you will receive, you are liable to be imprisoned for 22 months.
    
21. 28 days to Appeal.
    

On this Tuesday the 23rd day of March 2010

Kaweendra Nanayakkara
Resident Magistrate