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Chand v The State [2002] FJHC 122; HAA0038J.2002S (24 May 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0038-0040 OF 2002

Between:

SUDESH CHAND
s/o Shiri Chand
Appellant

And:

THE STATE
Respondent

Hearing: 17th May 2002

Judgment: 24th May 2002

Counsel: Appellant in Person
Ms J. Hamilton-White for Respondent

JUDGMENT

There are three separate appeals filed in this case. However, because the Appellant=s grounds of appeal are the same for all appeals, and because the facts of all cases are similar, I have heard all the appeals together. This judgment is in respect of all three files.

In the Magistrates= Court the Appellant was convicted on his pleas of guilty, of the following charges:

APPEAL NO: 038/02 (Criminal Case No. 591/02)

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309(a) of the Penal Code, Act 17.

Particulars of Offence

SUDESH CHAND s/o SHIRI CHAND on the 3^rd day of December 2001 at Suva in the Central Division, with intent to defraud $30.00 cash from AMIT SHARMA s/o KALIKA PRADAD by falsely pretending that he was in a position to arrange for a mobile phone for the said AMIT SHARMA s/o KALIKA PRADAD.

APPEAL NO: 039 OF 2002 (Criminal Case No. 592/02)

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309(a) of the Penal Code, Act. 17.

Particulars of Offence

SUDESH CHAND s/o SHIRI CHAND, on the 12^th day of February 2002 at Suva in the Central Division, with intent to defraud, obtained $50.00 cash from ANAND VIKASH CHAND s/o GYAN CHAND by falsely pretending that he was in a position to arrange for a mobile phone for the said ANAND VIKASH CHAND s/o GYAN CHAND.

APPEAL NO: 040 OF 2002 (Criminal Case No. 590/02)

FIRST COUNT

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309(a) of the Penal Code, Act 17.

Particulars of Offence

SUDESH CHAND s/o SHIRI CHAND, on the 16^th day of February 2002, at Suva in the Central Division, with intent to defraud, obtained $50.00 from RAVINESH KRISHNA s/o RANGA SAMI by falsely pretending that he was in a position to issue a Vodaphone to him.

SECOND COUNT

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309(a) of the Penal Code, Act. 17.

Particulars of Offence

SUDESH CHAND s/o SHIRI CHAND, on the 16^th day of February 2002, at Suva in the Central Division, with intent to defraud, obtained $50.00 from SACHIDA NAND s/o RAM SAMI by falsely pretending that he was in a position to issue a Vodaphone to him.

He was sentenced to three months imprisonment on each count. The total sentence imposed was twelve months imprisonment. He now appeals against sentence on the ground that his total sentence is severe, harsh and excessive, and that he should have been given a suspended sentence.

The facts of all the counts were similar. The Appellant met each of the complainants in Suva City and introduced himself as a person working for Web Master. He offered to sell the complainants a mobile telephone for $50.00 each. He obtained the money from them and told them to wait for the telephones. Later he told the complainants he would supply the telephones later. However he did not supply the telephones. The complainants reported the matter to the police. The Appellant was apprehended and interviewed. He admitted the offences to the police. He was charged with the offences.

He admitted the facts outlined and six previous convictions, two of which are for larceny. In mitigation he said he had paid $100.00 to the court as compensation to the complainants and expressed remorse. The learned Magistrate then sentenced him to three months imprisonment on each count, saying that the number of offences committed and his failure to fully compensate the complainants justified a custodial sentence. She did not apply the totality principle to the total twelve month term imposed.

State counsel opposes this appeal saying that the individual and total sentences were neither wrong in principle nor manifestly excessive. I agree. The facts show a pattern of conduct which depended on defrauding unsuspecting members of the public. The sum of $50.00 on each count may not seem like a large sum of money, but for most members of Fiji society it represents a substantial portion of their weekly budget. The offences committed show a degree of planning and persuasion which justified the imposition of a custodial sentence. A term of three months imprisonment is, if anything, on the lenient side. As for the total sentence of one year=s imprisonment, although the learned Magistrate did not consider the totality principle, I find that the total term reflects the total circumstances of the offending. Further, the Appellant is not entitled to the leniency normally shown to a person of previous good character.

For these reasons, the Appellant=s appeal against sentence in respect of each of his three appeals is wholly dismissed.

Nazhat Shameem
JUDGE

At Suva
24^th May 2002