Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Sharma v The State [2002] FJHC 154; HAA0038J.2002L (27 August 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0038 OF 2002L

Between:

ATIL SHARMA
f/n Vishwa Ram Sharma
Appellant

And:

THE STATE
Respondent

Hearing: 22^nd August 2002

Judgment: 27^th August 2002

Counsel: Appellant in Person
Mr. P. Bulamainaivalu for State

JUDGMENT

The Appellant appeals against his sentence of 2 years imprisonment in respect of the following charge:

Statement of Offence

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

Particulars of Offence

ATIL SHARMA s/o VISHWA RAM SHARMA between 4^th day of January, 2001 and 5^th day of January, 2001 at Lautoka in the Western Division, with intent to defraud, obtained $1,575.00 in cash from Irene Madhu Lata d/o Gaya Prasad by falsely pretending that he was a boss of an exporting company and that he will arrange a job as a personal secretary in his company, which in fact was false.

The case was first called in the Lautoka Magistrate=s Court on 12^th March 2001. The Appellant pleaded not guilty to the charge. He was not represented. He was remanded in custody until the 2^nd of April 2001, when he was bailed to appear on the hearing date. He did not appear, and a bench warrant was issued. He was arrested on the 1^st of February and brought to court. He pleaded guilty to the charge.

The facts as read by the prosecution were that the complainant was looking for a job on 4^th January 2001, at the New World Supermarket in Lautoka. The Appellant approached her and told her that he would give her a job as a personal secretary and that she would have to pay $1575.00 to him as a bond for lawyer=s fees, and to cover the cost of identification cards and a uniform. The complainant withdrew $800.00 from her bank account and gave it to the Appellant. The following day, she gave him the balance. She later became suspicious, and reported him to the police. The Appellant was interviewed by the police and he admitted taking the money by false pretences. The money was not recovered.

The Appellant admitted 20 previous convictions, all for similar offences. In mitigation he said that he was a 35 year old school teacher, that he had changed his life, that he was newly married and had become a born-again Christian.

The learned Magistrate sentenced the Appellant to 2 years imprisonment, consecutive to his existing terms of imprisonment. He said that the court had shown him leniency in the past, and he had continued to re-offend. In this case, he had taken advantage of a woman who had lost all her savings because of his unscrupulous activities.

The Appellant now appeals on the ground that the sentence was harsh, and that other offenders had received lighter sentences.

The maximum sentence for an offence under section 309(a) of the Penal Code is five years imprisonment. The facts of this case show a deliberate and calculated act of defrauding a credulous woman who was desperate for employment and who gave him a large sum of money believing that he was going to employ her. The facts of the case called for an immediate custodial sentence. Further with his long list of previous conviction for offences of fraud, the Appellant was not entitled to the leniency which might have been extended to a person of good character. He was fortunate to receive a two year sentence, even after discount for the guilty plea. Further, the 18 month term that he is serving, which was imposed in August 2001 by the Nadi Magistrate=s Court, is already almost served. An additional 2 years, given the nature and seriousness of the offending, does not offend the totality principle.

The appeal against sentence is wholly dismissed.

Nazhat Shameem
JUDGE

At Suva
27^th August 2002