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Underwood v The State [1990] FJHC 29; Haa0115j.89s (23 February 1990)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NOS. 115 OF 1989 & 1 OF 1990

Between:

THOMAS JOSEPH UNDERWOOD
Appellant

v.

STATE
Respondent

Appellant in Person
Mr. S. Seneratne for the Respondent

JUDGMENT

When the appellant first appeared before this Court on the 22nd of November, 1989 it became obvious that his appeal was against more than one sentence and as the relevant Magistrate Court appeal files were not before the Court, the hearing had to be adjourned to enable all the appellant's sentence appeals to be dealt with together rather than in a piece-meal fashion as occurred in the Magistrates Court.

Having obtained the necessary court records it became clear that the appellant was sentenced in the following 3 Magistrate Court files: (in date of conviction and sentence).

(1) In Nadi Criminal Case No. 477/89 (The 'Nadi Hotels' fraud). The appellant was convicted on 2 counts of Obtaining Credit by False Pretences from 2 named hotels in Nadi in May and June 1989.

On both occasions the appellant checked into the hotels under a false name and incurred hotel bills totalling $4,131.06. On each occasion the appellant checked-out without paying his bills.

Upon his conviction by the Nadi Magistrate Court on the 27th of June 1989 the appellant was sentenced to consecutive terms of 6 months imprisonment on each count making a total of 12 months imprisonment.

Since then the appellant has completely served this sentence and accordingly nothing will be gained by entertaining his appeal against the sentences imposed in that case which I would add were exceedingly lenient. The appeal is accordingly dismissed.

(2) Suva Criminal Case No. 115/89 (The 'Floating Restaurant' forgery). In which the appellant was charged with 3 counts of Forgery, Uttering a Forged Document and Obtaining Goods on a Forged Document in May 1989.

The document in question was a cheque for $132.00 which the appellant received and fraudulently negotiated by forging the drawer's signature and endorsing it to Tiko's Floating Restaurant.

For these 3 offences the appellant was sentenced on the 18th of August 1989 to a total of 9 months imprisonment to be served consecutive to the sentences imposed in the Nadi case.

(3) Suva Criminal Case No. 1623/88 (The 'Townhouse Apts' fraud). This case was similar in every way to the above-mentioned Nadi Hotels case except that the hotel involved in this case was the Townhouse Apartments in Suva. The offence was committed under an assumed name in March/April 1988 and concerned an unpaid bill of $1,217.58.

The appellant pleaded guilty in this last case to an offence of Obtaining Credit by Fraud and was sentenced on the 11th of September, 1989 to a concurrent term of 2 1/2 years imprisonment.

Therefore the total sentence that the appellant has to serve is 2 1/2 years from the 11th of September 1989 which means his earliest release date is May 1991.

It is unfortunate that the appellant's offences had not been charged and disposed of in the order in which they were committed or preferably been dealt with by the same magistrate at the same time for then the magistrate court would have been appraised of the totality of the appellant's criminal activities and been aware that the appellant was being sent to prison for the first time.

For instance the sequence of the appellant's offending began with the Townhouse Apartment fraud (in March/April 1988) followed by the Lifeboat Restaurant forgery (in May 1989) and ended up with the Nadi hotels frauds yet they were dealt with in reverse order.

In these two latter instances the offences were separated by only 2 days and although the "victims" and offences were different nevertheless they should have been treated for sentencing purposes as forming the subject matter of a single criminal enterprise for which concurrent rather than consecutive sentences would have been more appropriate.

The appellant is 24 years of age and prior to committing these offences was gainfully employed as a bank officer. He is married and has a young son. Immediately prior to his offending his marriage of 2 years duration collapsed and he lost his job.

The appellant attributes his criminal behaviour to the breakdown in his marriage, booze and an absence of any sense of fear on his part. None of these excuses in anyway the offences that the appellant has committed.

They were are all offences that required some degree of planning and cunning on the part of the appellant and were deliberately dishonest. It is noteworthy that in June 1988 the appellant was convicted of an offence of Obtaining Money by False Pretences and was bound over in the sum of $100.00.

He abused the Court's leniency and deserves to go to prison. He is now in prison and has already served almost 8 months of his sentence. He professes to a realisation that prison life is a total waste of time.

He regrets what he has done and asks to be released so he can forget his past and start a new life.

Bearing in mind that this was the appellant's first time in prison and this court having had the added advantage of considering all his offences and sentences together I propose to give the appellant the one last chance he so eloquently pleads for.

The sentences in Suva Criminal Case Nos. 115/89 and 1623/88 are accordingly quashed and in substitution therefor I impose the following sentences:

In Criminal Case No. 1623/88 a sentence of 12 months imprisonment; and in Criminal Case No. 115/89 a sentence of 3 months imprisonment, both sentences to be served consecutively making a total of 15 months imprisonment and are ordered to take effect from the 18th of August, 1989.

(D.V. Fatiaki)
JUDGE

At Suva,
23rd February, 1990.

HAA0115J.89S