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

State v Mudaliar [2011] FJMC 142; Criminal Case 393.2011 (14 November 2011)

IN THE MAGISTRATE'S COURT OF FIJI
WESTERN DIVISION AT NADI

CRIMINAL CASE NO: 393/11
394/11
395/11
396/11

THE STATE

V

SHALEN KRISHNA MUDALIAR

Cpl. Naidu for prosecution
Accused in person
Date of Sentence: 14.11.2011

SENTENCE

[1] SHALEN KRISHNA MUDALIAR, this is your sentence.

[2] You were charged with four counts of Obtaining Financial Advance by Deception, contrary to section 318 of the Crimes Decree No. 44 of 2009.

[3] You pleaded guilty to the charges when the charges were read over and explained to you and after you confirmed that you understood the charge.

[4] A summary of facts was put to you by the prosecution and you admitted the facts set out therein. Prosecution handed up a copy of it to court.

[5] I have reviewed the facts against the particulars of the offences charged in this case. I am satisfied that it supports the essential elements of the charges.

[6] I therefore convict you as charged on all four counts.

Facts for sentencing:

[7] On 29 May 2011 you obtained $1000.00 Sanjan Nandan, a farmer promising that you will provide labour for cane harvesting and fled with the money without providing labour [393/11]. Between 9 and 30 May 2011 you obtained money from Muniappa Reddy $350.00 promising that you will provide labour for cane harvesting and fled with the money without providing the labour [394/11]. Between 1 and 31 June 2011 you obtained money from Govind Sami $300.00 promising that you will provide labour for cane harvesting and fled with the money without providing the labour [395/11]. On 25 May 2011 you obtained money from Ravi Raj Singh $350.00 promising that you will provide labour for cane harvesting and fled with the money without providing the [396/11].

Aggravating factors:

• Breach of trust;
• Loss caused to the complainant;
• Your planning to commit these offences.
  

Mitigating factors:

[8] You had submitted the following on your behalf:-

• Your guilty plea;
• Your promise not to re-offend;
• Show of remorseful;
  

The sentence:

[09] I now turn to consider the sentence for the offence you have committed. The offence of "Obtaining Financial Advance by Deception" carries a maximum of 10 years imprisonment under section 318 of the Crimes Decree No.44 of 2009.

[10] Under the Crimes Decree the offence of 'Theft' also carries a maximum sentence of 10 years. Therefore the tariff for theft may also be conveniently applied for the offence of 'Obtaining Financial Advance by Deception'.

[11] The offence of 'Theft' under Crimes Decree 2009 is similar to offence of 'Larceny' under sections 259 and 262 of the Penal Code Act, Chap 17, which is now repealed.

I. The Tariff for the offence 'Larceny' is between 06 months to 12months imprisonment. (Kaloumaira v State, 2008 FJHC 63; Manasa Lesuma v State, 2004, FJHC 490)

II. In the case of Tikoitoga v State [2008] FJHC44; HAM088. 2007 (18 March 2008) the tariff was held to be 18 months to 3 years.

III. It was held in the case of State v Chaudary [2008] FJHC 22; HAC 69.2007, 70.2007 & 71.2007 (19 February 2008) the tariff is be at least one year of imprisonment for a first offender of Larceny.

[12] Given this, in your case I pick 30 months imprisonment as my starting point. I increase the sentence to 36 to reflect the above aggravating factors and decrease to 24 months to reflect your guilty plea. For your mitigation and for the fact that you are in remand since 17.10.2011 I further discount 4 months. You are not entitled to any discount for good characters in that you have 10 previous convictions from 2003 till 2010.

[13] Hence you get 20 months imprisonment on each count. Considering the totality principle I order that you must serve these sentences concurrently with each other. In total you have to serve 20 months imprisonment.

[14] In your case, I am of the view suspended sentence will not serve the purpose; especially in considering the nature of the offences you had committed and your previous conduct.

[15] 28 days to appeal.

ORDER:

1. I sentence the accused to 24 months imprisonment.
   

M H Mohamed Ajmeer
Resident Magistrate

Dated at Nadi this 14th day of November 2011