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Kumar v The State [1993] FJHC 80; Haa1722j.93b (24 September 1993)

IN THE HIGH COURT OF FIJI
At Labasa
APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 17, 18, 19, 20, 21 AND 22 OF 1993

Between:

RAJIV KUMAR
s/o Raj Kumar
Appellant

- and -

THE STATE
Respondent

Appellant in Person
Mr. Ian Wikramanayake for the State

JUDGMENT

From the nature of the matter it would be convenient to deal with the six appeals together since these relate to sentence only.

The Appellant has appealed against the severity of sentence in each of the six appeals. He was convicted on the 9th June, 1993 on his own plea for various offences committed during the period 31st December, 1992 and 14th April, 1993.

The sentences are as follows:-

In Labasa Criminal Case No. 199/93 the appellant was convicted and sentenced as follows:

1st Count - Larceny - 4 months' imprisonment

2nd Count - Forgery - 12 months' imprisonment

3rd Count - Uttering

forged document - 6 months' imprisonment

4th Count - Attempt to

obtain money on

forged document - 2 months' imprisonment

5th Count - Forgery - 12 months' imprisonment

6th Count - Uttering

forged document - 6 months' imprisonment

A total of 3 years and 6 months to be served consecutively.

In Labasa Criminal Case No. 305/93: the appellant was sentenced as follows:-

Obtaining money by false pretences - 6 months' imprisonment to be served concurrent with sentence in Criminal Case No. 199/93.

In Labasa Criminal Case No. 307/93: the appellant was sentenced as follows:-

Similar counts and similar sentence as in 199/93 to be served concurrent to Criminal Case 199/93 and concurrent to each other.

In Labasa Criminal Case No. 308/93: the appellant was sentenced as follows:-

1st Count - Larceny - 4 months' imprisonment

2nd Count - Forgery - 12 months' imprisonment

3rd Count - Uttering

forged document - 6 months' imprisonment

4th Count - Obtaining

credit by false

pretence - 2 months' imprisonment

A total of 2 years' imprisonment to be served concurrent with Criminal Case No. 199/93.

The learned relieving Magistrate further activated the suspended sentence of 9 months with the original term unaltered to be served consecutive to the sentence of 3 years 6 months.

Therefore the total sentence of imprisonment is 4 years 3 months.

The learned State Counsel concedes that the sentence of 12 months in count 5 in Criminal Case No. 199/93 should be concurrent with sentence in count 2 for similar offence and committed on the same day. He is also of the view that the activation of suspended sentence of 9 months should be set aside.

It will be noted that sentence of 12 months imprisonment was imposed on the appellant in Criminal Case No. 199/93 in two counts (counts 2 and 5) of forgery to be served consecutively. The two incidents occurred on the same day namely 31st December, 1992 involving the same complainant but two different cheque leaves were used. The appellant did not benefit from the forgery. No doubt this is a very serious offence.

However, on the facts of this case it seems to me that the sentence of 12 months to be served consecutively is wrong in principle. The sentencer must not loose sight of the general principle that the sentence must be in proportion to the offence for which it was imposed. In ERNEST WHIPPY and REGINAM (Criminal Appeal Nos. 38 to 42/1974) the Acting Chief Justice Tuivaga, now Chief Justice said:-

"Thus a court should be careful when dealing with a series of cases such as the present not to order a sentence to run consecutively to another sentence if the nett result is to inflate the overall effective sentence out of proportion to the offences concerned".

(underlining mine).

Thomas second edition of Principles of Sentencing at page 56 states the principle as follows:-

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is just and appropriate".

It will be noted that in this case the appellant was not able to reap any benefit from the two forgeries as the offences were detected the same day of the offences.

I am satisfied in all the circumstances of this case the sentence of 12 months passed on the appellant in counts two and five should be made to run concurrently with each other. The effect of this is that the total sentence to be served in Criminal Case No. 199/93 is reduced by 12 months; the appellant therefore is to serve a total of 2 years 6 months.

Furthermore, for the reasons hereafter appearing the activation of the suspended sentence of 9 months is set aside.

The learned Magistrate I find is wrong in law in the procedure adopted by him to activate the suspended sentence of 9 months imposed on the appellant on 4th September, 1992 in Suva Magistrate's Court in Criminal Case No. 2030/92. The appellant committed the present offence during the operational period of the said suspended sentence.

In LEVI NASAUMALUMU and THE STATE (Criminal Appeal No. 56/87 FATIAKI J set aside the activation of the suspended sentence for the reason, with which I agree, that the appellant, as in the present case, was not given the opportunity by the learned trial Magistrate to show cause (underlining mine) as to why the suspended sentence should not be activated.

For the reasons given hereabove I allow the appeal and quash the sentence imposed by the lower court in Criminal Case No. 199/93 and substitute the following term of imprisonment with effect from the 9th June, 1993:

Count 1 - 4 months' imprisonment

Count 2 - 12 months' imprisonment

Count 3 - 6 months' imprisonment

Count 4 - 2 months' imprisonment

Count 5 - 12 months' imprisonment concurrent with sentence in count 2

Count 6 - 6 months' imprisonment

The sentences are to be served consecutively an overall term of 2 years 6 months.

The Criminal Appeal Nos. 18, 19, 20 and 22 of 1993 are dismissed. In Criminal Appeal No. 21/93 the sentences are varied as in Criminal Appeal No. 17/93 hereabove concurrent with sentence in Criminal Appeal No. 17/93 making an overall total of 2 years 6 months.

The activation of the said suspended sentence of 9 months is set aside.

The appellant is therefore to serve a total of 2 years 6 months imprisonment effective from the date of sentence namely 9th June, 1993.

D. Pathik
Acting Puisne Judge

At Labasa
24th September, 1993

HAA1722J.93B