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State v Singh [2013] FJMC 103; Criminal Action 1751.2012 (6 March 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Criminal Action No: 1751/12

STATE

V

KOMAL SINGH

• Sgt. Jitendra, Police Prosecutor for the Prosecution.
• Accused in person.
  

SENTENCE

1. You Komal Singh are here today to be sentenced following the admission of guilt on your own accord and free will in this court on 04.02.2013 for committing the multiple offences of 'Obtaining Financial Advantage by Deception', 'Obtaining Property by Deception' and 'Dishonestly Causing a Loss' contrary to sections 318, 317(1) and 324(1) of the Crimes Decree No 44 of 2009.
   
2. The prosecution filed ten separate counts on you. It appears that the offences have been committed during 05.04.2012 and 19.04.2012. You have presented cheques which belonged to the Fiji Teachers Union Rewa Branch and obtained goods and money from different shops in Suva. Later these cheques were dishonoured. Further the prosecution informed court that you were not allowed to hold theses cheques and therefore it is apparent that you have used these with a dishonest intention at all times.
   
   1. On 05.04.2012 you obtained $ 192.50 worth goods and FJ$ 57.50 in cash from the Adidas Store in MHCC by giving cheque No: 545. The total was FJ$ 250.
      
   2. On 14.04.2012 you deceived a businessman in Nag's Footwear to get the items worth of FJ$ 350.
      
   100. On 17.04.2012 you presented cheque No 518 to a sales girl in M. Bhagwan Store to obtain assorted shorts worth FJ$ 200 and FJ$200 in cash.
        
   4. On 19.04.2012 you at Anita Jewellers deceived a sales assistant by giving cheque No 525 to obtain silver jewellery worth FJ$ 420.
      
3. You waived the right to counsel and entered a guilty plea on each count separately. The court was convinced that your plea was free from any force, threat or promise. You further agreed and admitted the appropriate set of facts. It is to be noted that the 3rd,5th, 8th and 10th counts for 'Dishonestly Causing a Loss' originates from the same actions of yours, which were performed in order to obtain goods and money from the respective persons. Technically it was the loss occurred as a result of your gain. View of this court is that there is a technical creation of a separate charge. However it is the other aspect of the same charge. Therefore this court will not proceed to sentence you for the 3rd, 5th, 8th and 10th counts. Thus the court finds that you are guilty on those counts separately and discharged from further proceedings.
   
4. Having considered the admitted summary of facts the court finds you guilty of each count [count 1, 2, 4, 6, 7, and 9] and convicted on each separately.
   

Tariff

5. The offences of 'Obtaining Financial Advantage by Deception' and 'Obtaining Property by Deception' carry a maximum sentence of 10 years imprisonment. In the case of State v Atil Sharma HAC 122 of 2010L Hon. Justice Madigan identified a tariff of 2 to 5 years for the cases of 'Obtaining Financial Advantage by Deception'.
   
6. The court notes that you have used cheques under the name of Fiji Teachers Union to deceive the respective persons at the counters. Therefore it cannot be considered as a trivial offence.
   
7. The Court therefore takes 2 years as the starting point for each offence.
   

Aggravating Factor

8. It appears that you have chosen different shops and stores on different days to obtain goods and money. Your intention was clear and it is to continue these acts until you have the cheque leaves. It is different from an opportunistic crime and indeed it is an aggravating factor of the offence. The sentence is increased by another 6 months to reflect the same. Now the sentence stands at 2 ½ years for each offence.
   
9. You entered this guilty plea at the earliest possible opportunity. In fact your progressive approach saved court's time and resources. Therefore the court wishes to grant a concession of 8 months on your sentence to reflect your timely plea. Therefore your sentence is now 1 year and 10 months.
   
10. Submitted personal circumstances states that you are 41 years old; divorced and have two kids; self employed; and now remorseful for the action.
    
11. Further concession of 4 months given in order to reflect your above personal circumstances.
    
12. That leaves your final sentence at 1 ½ years on each count.
    
13. The Court has powers under the Sentencing and Penalties Decree 2009 to suspend any imprisonment term less than 2 years. The legal framework always encourages the court to consider imprisonment terms on an offender as the last resort. On the other hand it is important to deter offenders who affect adversely on the other person's rights and financial status.
    
14. The court notes that you have obtained goods and cash worth FJ$ 1420 as the total value from this string of offending. It is to be noted that one silver ring had been recovered during the investigations. And therefore actual total monetary loss is lesser than the above figure. Though you have two previous convictions the court notes that there are no similar offences committed by you.
    
15. Having considered the circumstances this court decides to partly suspend your sentence.
    
16. Accordingly Komal Singh today you are sentenced to 1 ½ years on each count. All sentences for six counts will be operated concurrently and the total term for the convictions is 1 ½ years. 12 months of the term is suspended for a period of 3 years. You will serve the remaining 6 months in prison.
    
17. After serving your prison term you must refrain from reoffending during the operative period [3 years] of the suspended sentence. Reoffending will be a ground for a separate prosecution against you.
    
18. Twenty eight [28] days to appeal.
    

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

06th March 2013