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State v Maharaj - Sentence [2025] FJMC 1; Criminal Case 1109 of 2015 (14 February 2025)

IN THE MAGISTRATES’ COURT OF FIJI
AT NASINU
CRIMINAL JURISDICTION


Criminal Case No: 1109 – 2015


STATE
[Office of the Director of Public Prosecution - ODPP]


-v-


PARAM VIR MAHARAJ
[Defendant]


For Prosecution : Ms. Konrote M. [ODPP]
For Defendant : Mr. Sharma S. and Mr. Dean Z. [Artika Legal]
Date of Trial : 11th, 12th and 13th November 2024
Date of Judgment : 20th December 2024
Date of Sentence : 14th February 2025


SENTENCE


BACKGROUND


  1. PARAM VIR MAHARAJ, you denied all the allegations levelled against you by the prosecution, but after your trial I have found you guilty of three offences and I have acquitted you of three other offences.
  2. You will now be sentenced for the three offences which I have found you guilty of. They are:

First Count

Statement of Offence

OBTAINING PROPERTY BY DECEPTION: Contrary to section 317 (1) of the Crimes Act 2009.

Particulars of Offence

PARAM VIR MAHARAJ between the 1st day of January 2015 to 31st day of January 2015, at Nasinu, in the Central Division, by deception, dishonestly obtained $730, the property belonging to FANE TAKAYAWA with intention to permanently deprive FANE TAKAYAWA of the said property.


Fourth Count

Statement of Offence

OBTAINING PROPERTY BY DECEPTION: Contrary to section 317 (1) of the Crimes Act 2009.

Particulars of Offence

PARAM VIR MAHARAJ between the 6th day of September, 2015 to the 26th day of September 2015, at Nasinu, in the Central Division, by deception, dishonestly obtained $800, the property belonging to BABARA BEGUM with intention to permanently deprive BARBARA BEGUM of the said property.


Sixth Count

Statement of Offence

USE OF CERTAIN TITLES OR DESCRIPTIONS PROHIBITED: Contrary to section 91(1) of the Medical and Dental Practitioners Act 2010.


Particulars of Offence

ARAM VIR MAHARAJ between the 1st day of January, 2015 to the 26th day of September 2015, at Nasinu, in the Central Division, being a person not registered on the appropriate register, used the term ‘Doctor’ to describe himself and a service that he provided.


  1. From the first victim Ms. Takayawa, you obtained $730 and from the second victim Ms. Begum you obtained. $800.
  2. You were not entitled to receive those monies.
  3. You are and were not a medical practitioner or doctor and you are or were not registered as one.
  4. Yet at the material time in 2015, you pretended to the victims that you were and even referred to yourself falsely or answered to the name or title of ‘Dr. Robert’.
  5. The victims had heard from others about your ‘good’ reputation before the victims met and engaged you.
  6. When attending to patients or the victims, you would give them pills and told them to rest.
  7. You would attend to the victims or patients at their homes or they would come to your home at Omkar Road, Narere where you were operating from.
  8. More specifically for Ms. Begum, you falsely diagnosed her that she had kidney problems because of the spots on her hand. She did not have a kidney problem but an infection.
  9. Another person Mr. Seru who testified during your trial, recounted that you had treated his mother who was battling stage 3 cancer at the time and had been discharged from the hospital to essentially ‘wait it out’ at home.
  10. When you first attended to his mother at the Seru home, Mr. Seru and the family were impressed by you. You seemed to know what you were talking about and how to deal with the mother’s pain. On that first visit, you helped their mother regain normal bowel movement.
  11. Later on, you pretended to ‘scan’ his mother using a basic device which looked like a collapsible antenna. Later after pretending that the data collected from the scan was analysed, you told the Seru family that his mother was suffering from stage 1B cervical cancer. This information was false. You also told the Seru family that surgery for their mother was not needed and they needed to listen to your instructions and their mother was to take the medication you provide as this will help her. Their mother passed away later that same month you first saw her.
  12. PARAM VIR MAHARAJ you are a first offender.
  13. By my count based on the court record, you have been in remand for 9 months and not 5 months as submitted by your counsel.
  14. The 9 months you were in remand were for the period between the first call on 05-10-2015 to 09-02-2016 and for the period between the 11-04-2017 to 11-09-2017.
  15. For the period of 11-04-2017 to 11-09-2017 your bail was cancelled and you were remanded because of the allegation of using a prohibited title, abduction of a child, wrongful confinement and indecently annoying, these allegations are contained in case file CF 151 -2017 a case which was called for the first time in the Nasinu Magistrates’ Court on the 14-02-17. The allegations in CF 151 - 2017 were alleged to have been committed by you in early 2017 while you were on bail in this CF 1109 – 2015 case.
  16. The 15 days you raised in your written mitigation that you were in police custody was between the period of 11-04-17 to 11-09-17 while you were being investigated for the CF 151-2017 case.
  17. I will not consider all of the 9 months you have spent in remand as time served because you were initially bailed in CF 1109-2015 and allegedly reoffended while on bail resulting in the subsequent charge in CF 151 – 2017.
  18. It was necessary to have you remanded again in-order that bail for both cases CF 1109 - 2015 and CF 151- 2017 could be considered and which resulted in a bail ruling delivered by my sister Senior Magistrate on the 04-07-2017.
  19. I will however consider most of your time in remand as time served. Out of your 9 months in remand, I will consider 7 months as time served and I will deduct these 7 months from your sentence.
  20. PARAM VIR MAHARAJ, you are now 60 years old. Amongst other ailments, you suffer from stage 2 kidney disease, diabetes, hypertension and degenerative changes to your right hip and ankle. You have attached a medical letter to support your claim of these conditions.
  21. You hold a Fiji and Australian citizenship. You had come over to Fiji in 2013 and you were supporting your elderly and sickly mother while in Fiji. You wanted to return with her to Australia. This case has prevented you from returning to Australia. Your mother has passed away about 2 to 3 years ago and you are alone now in Fiji. Your children are all adults.
  22. This case has been pending against you since October 2015 and you have suffered emotionally and psychologically.
  23. You are an active member of your religious group.
  24. You have paid $730 and $800 [total of $1,530] into court as compensation to be paid back to the victims Ms. Takayawa and Ms. Begum.
  25. Your personal belongings valued at around $21,000 was stolen from your home while you were in police custody or in remand in 2017. It was reported that the grill and lock to your home was ‘cut’. You have provided a letter from the Nasinu Police Station to reflect the police report made in relation to the incident and a list of the items allegedly stolen is also annexed.
  26. It is argued that you are deeply remorseful and regretful of your actions.
  27. You have cooperated with police and have been consistently complying with your bail conditions such as to report at the police station twice in a week.
  28. Your reputation and dignity has been affected due to the media publicity. You have been labelled guilty in the ‘public eye’ and called a thief and ‘bush doctor’.
  29. It is argued on your behalf that a custodial sentence will only exacerbate your hardship and will not serve the broader public interest as you are not a threat to the society.
  30. You seek a non-conviction as you intend to return to Australia and that your Australian citizenship may be revoked which would impact your ability to maintain your family connections with those in Australia and your future stability.

AGGREGATE SENTENCE AND INSTINCTIVE SYNTHESIS APPROACH


  1. The three offences you committed are founded on the same facts or are a part of a series.
  2. Pursuant to section 17 of the [SPA] I will impose an aggregate or combined sentence on you for the three offences.
  3. Since obtaining property by deception is more serious than using a prohibited title, the obtaining property by deception offences will be the foundation of your aggregate sentence.
  4. I will also adopt a hybrid two tier and instinctive synthesis approach when sentencing you.
  5. There are some salient features to highlight before I summarise your aggregate sentence.

LAW


  1. The maximum sentence that is imposable by law for the offence of obtaining property by deception, attracts a maximum sentence of up to 10 years imprisonment.

TARIFF


  1. The sentencing range for the offence of obtaining property by deception or the similar offence of obtaining financial advantage by deception is the same and that is a sentence of between 2 to 5 years imprisonment [State v Sharma [2010] FJHC 623; HAC122.2010L (7 October 2010) upheld on appeal in Sharma v State [2013] FJCA 75; AAU98.2010 (17 June 2013)].
  2. The lower end of the sentencing range is recommended for minor offences with little or spontaneous deception.
  3. The higher end of the sentencing range is recommended for serious, well planned and cynical operations.
  4. The House of Lords decision in Barrick (1985) 81 Cr App R 78 is also worth considering. The House of Lords upheld a 2 year concurrent imprisonment term imposed on the Appellant for offences of false accounting, obtaining by deception and theft. The Appellant was found guilty and sentenced after a trial.
  5. The Appellant Barrick was hired as a manager for a company which provided loans and in the course of a little of over a year, he stole approximately 9,000 pounds [this being between 1982 and 1983].
  6. The House of Lords in its appeal judgment was unequivocal, their Lordships said that immediate imprisonment is inevitable, save in very exceptional cases or where the value or money involved is small. Despite the punishment that offenders bring upon themselves, usually these can be offenders of impeccable character, the Courts should pass a substantial term of imprisonment to mark publicly the gravity of the offence.
  7. Some factors that may assist in determining the appropriate sentence include any guilty plea, the quality and degree of trust reposed on the offender including the offender’s rank, the period over which the fraud or theft was perpetrated, the use to which the property or money taken was put, the impact on the victim, the impact of the offence on the public and the impact on the public confidence, the effect on co-workers or partners, the effect on the offender, the offender’s history and if there is any special mitigation.

AGGRAVATING FEATURES


  1. PARAM VIR MAHARAJ the amount you took from the victims by deception cannot be considered to be small or insignificant. You obtained the amount in excess of $1,000.
  2. It was perpetrated by you over a lengthy period between January to September in 2015 on more than one victim. Your ‘con’ was impeccable. You made them believe in what you said. It was calculated.
  3. It is clear that your case grabbed a lot of public attention at the material time. For instance, this is supported by the witnesses who gave evidence at your trial who unequivocally testified that they heard of you before they came to meet you and later they found out that you were reported for being an imposter. Evidence of media publication regarding your arrest or while the case was being investigated by police is also part of your written mitigation. You must realise that your actions are not isolated to you and the victims alone in this case. Generally, the confidence of the community in the medical profession is negatively impacted because of what you did. For instance, patients or those seeking medical help would be more sceptical about getting proper medical attention because they may question the authenticity of the medical practitioner attending to them or the medicine prescribed or medical advice given. More specifically, for Ms. Begum and Ms. Takayawa, the painkillers and sleeping pills you gave them was a placebo and did not improve or worsen their physical condition but you had deprived them of their time and money and you deprived them of genuine medical help that they truly deserved because of your false diagnosis and charlatan treatment.
  4. Particularly for Mr. Seru’s family, I am certain their mother who was battling stage 3 cancer, did not have much time left after she was discharged from hospital. I am certain that there was nothing else that could have been done to treat her at the hospital. She passed away within a month after being discharged. Her demise was inevitable. It was a matter of keeping her comfortable and having her family around her as much as possible during those last days. Your false diagnosis to the Seru family that she was not battling stage 3 cancer gave them false hope and I am sure it deprived the family of quality time with their mother before she passed. It was cruel of you.
  5. You exploited the victims who were vulnerable or desperate at the time.
  6. All of these are good reasons to increase your sentence.

MITIGATION


  1. You submit that you are remorseful and regretful of your actions. I am unable to accept this as mitigation. You have pleaded not guilty and your conduct during the proceedings and your testimony during the trial do not reflect these qualities. For instance, you deny that you were operating from your home when there is clear evidence that you were. A poster pasted outside your home near your main door and medical cards found inside your home [these medical cards found in your home is undisputed by you by the way with your false claim that these belonged to your family members or relatives, with the poster and medical card referencing you as [Dr. Robert] together with the direct evidence of the strong prosecution witnesses establish this. Your continued denial against the weight of the evidence is foolish and is a clear indication to me that you have no remorse.
  2. I will need more evidence or information regarding your contribution as member of your community or religious group before I can consider this as mitigation. At this moment, I do not see it compelling enough.
  3. However, you are a first offender.
  4. You are now 60 years old.
  5. I accept that your home was burgled and valuable items were stolen from your home while you were in remand. This is strong mitigation.
  6. Your health too is not good as evidenced in your mitigation and which is undisputed by the prosecution. You suffer for instance from Stage 2 kidney disease. This is strong mitigation.
  7. This case has been pending over you since October 2015. You have been complying with your bail conditions since, especially consistently appearing in court and reporting to the police station. There has been no complaint for instance that you have failed to report once to the police station in the years you were required to. This is also strong mitigation.
  8. You have paid $730 and $800 [total of $1,530] into court as compensation to be paid back to the victims Ms. Takayawa and Ms. Begum.
  9. As I have indicated in your judgment, I accept that during the course of police investigations you were sworn at and shouted at by police.
  10. These are good reasons to reduce your sentence.

NON-CONVICTION


  1. You have sought for a non-conviction.
  2. In common law, a non-conviction can result if for instance there is a technical breach of the law or the offender is not morally blameworthy or the offence is trivial or there are extenuating circumstance that warrants the showing of mercy or that the circumstance of the case deserves a nominal punishment [State v Batiratu [2012] FJHC 864; HAR001.2012 (13 February 2012).
  3. In our Sentencing and Penalties Act 2009 [SPA] at section 15 and 16, a statutory criteria is prescribed. When deciding whether a non-conviction is deserving, the court must consider the circumstances of the case, including the nature of the offence, the character and past history of the offender and the impact a conviction will have on the offender’s economic or social wellbeing and or employment prospect.
  4. PARAM VIR MAHARAJ, I am certain of your intention to travel outside of the country. It is possible although I am not provided with any concrete evidence that it is likely, that your Australian citizenship may be affected because of a conviction. Possibility is not the same as probability. You must demonstrate to me the likelihood that your citizenship will be affected and not only claim that it can be affected.
  5. You are a first offender.
  6. Due to your age, that you have sold your property in Australia before returning to Fiji in 2013, that you are financially secure even though you are not working, the existence of the property at Omkar Road, your ill health and that there is no indication that you have been engaged in any recent employment, I find it unlikely that you will engage in any employment whether locally or overseas and there is no need for you to engage in any employment due to your financial prowess.
  7. The nature of the offence is also concerning. You were pretending to be a medical doctor or medical practitioner and you were swindling vulnerable victims out of their money, in this case, in excess of $1,000. It is clear to me that you did not need the money as you were and are financially stable but you still charged them a fee. There is also your lack of remorse throughout the proceedings in light of the weight of the evidence.
  8. Weighing these, I am not persuaded to grant your application for a non-conviction.
  9. I enter a conviction against you in respect of the three offences which I have found you guilty of.

SUSPENSION, PAROLE, OBJECTIVE IN SENTENCING


  1. I can suspend your imprisonment term either in whole or in part pursuant to section 26 (1) and (2) (b) of the Sentencing and Penalties Act 2009 [SPA] if your sentence does not exceed 2 years imprisonment.
  2. If you are sentenced to more than 2 years imprisonment, it is mandatory that a non-parole period is imposed on you but as long as your non-parole period is 6 months less than your head sentence [section 18(1) and (4) of the SPA].
  3. In theory under the SPA, if your sentence is more than 2 years, a minimum of a non-parole period of 1 day could be imposed as there is no minimum set by the SPA.
  4. I have considered the factors outlined in section 4 of the SPA.
  5. The objective of your sentence is deterrence [specific to you and general deterrence to others], to punish you to an extent and manner which is just and to promote your rehabilitation.

SUMMARY


  1. PARAM VIR MAHARAJ you are found guilty and convicted in respect of each of the offence in the three counts mentioned [the two counts of obtaining property by deception and one count of using a prohibited title].
  2. You will receive an aggregate or combined sentence for three offences.
  3. You are sentenced to an aggregate 27 months imprisonment equivalent to 2 years and 3 months imprisonment [this is your head sentence].
  4. Minus the 7 months for your time in remand, your aggregate sentence is now reduced to 1 year and 8 months imprisonment.
  5. I cannot suspend your aggregate sentence either in part or in whole as your head sentence is more than 2 years imprisonment.
  6. Since your head sentence is more than 2 years imprisonment, it is also mandatory by law that I must impose a non-parole period on you.
  7. The nature of the offence requires that you serve some time in prison, there is no question about that.
  8. There have been developments since you committed this offence in 2015. The years this case has been pending against you and you complying with your bail conditions consistently can itself be a form of punishment. Your health too has deteriorated.
  9. Your lack of remorse is painfully clear though.
  10. I am of the view that a minimal but meaningful non-parole period will meet the objectives of your sentence especially as you have spent time in prison already in remand.
  11. From your remaining aggregate 1 year and 8 months imprisonment, I order that you serve 1 month imprisonment before you are eligible for parole.
  12. As part of your punishment, I also order the forfeiture of the entirety of your cash bail of $2,000 which is currently in the court’s possession and this cash bail will be paid into court as your aggregate fine for the three offences and this ordered pursuant to section 15 (1) (a) and (f) of the SPA.
  13. Pursuant to section 49 (1) (a) of the SPA, I also order the release of the $730 and $800 [total of $1,530] which you paid into court as compensation, these monies are to be released or to be paid to Ms. Takayawa and Ms. Begum respectively as soon as practicable.
  14. The prosecution is to advise the victims to see the court registry as soon as practicable to make the necessary arrangement for the release of these monies to them.
  15. PARAM VIR MAHARAJ, I now discharge you of your bail obligations.
  16. You will start serving your imprisonment term immediately and a committal warrant will be issued accordingly.
  17. 28 days to appeal.

..................................

Lisiate T.V. Fotofili

Resident Magistrate


Dated at NASINU this 14th day of February, 2025.


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