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

Dutt v The State [2002] FJHC 205; HAM0014J.2002S (9 August 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CASE NO: HAM0014 OF 2002

Between:

NARENDRA DUTT
Appellant

And:

THE STATE
Respondent

Appellant in Person
Mr N. Nand for Respondent

Hearing: 2nd August 2002
Judgment: 9th August 2002

JUDGMENT

On the 21^st of March 2002, the Applicant, Narendra Dutt applied to the High Court for leave to appeal out of time, in respect of convictions for offences of Obtaining Money for False Pretences, entered on the 16^th of July 1998. It appears, from a memorandum on the court file, from the Senior Court Officer Suva Magistrates Court to the Officer-In-Charge of the Minimum Security Prison, that a previous application had been made to the Suva Magistrates Court. There is nothing on the file to show that the application had been properly considered, the Court Officer simply writing: Athe accused cannot appeal because the 28 days appeal period has expired.@

Because there was nothing on the file to show that the Magistrates Court had considered and refused an application for leave to appeal out of time, and because no ruling was delivered on the issue, I listed the application for hearing in the High Court.

At the hearing of the application, it became apparent that the application was not a complaint against any particular sentence delivered, but was a complaint that the cumulative term being served in total (including the result of committal warrants for non-payment of fines) was manifestly excessive and offended the totality principle. His total sentence, according to the Applicant is 12 years and 9 months.

State Counsel very fairly said that if the total sentence was indeed 12 years and 9 months, it was indeed excessive and appeared to breach the totality principle. He agreed that I should exercise my revisional jurisdiction to consider whether the total sentence was proper in all the circumstances of the offences. He agreed to file an affidavit to assist the court as to the offences for which the Applicant was serving terms of imprisonment. The hearing of the matter was adjourned to allow the State to file such affidavit.

The affidavit of Inspector Apenisa Sauroutu, Police Liaison Officer at the DPP=s Office was filed on 31^st July 2002. He states that although the Applicant=s previous conviction record dates back to 1982, and although he is now serving terms of imprisonment for non-payment of fines in respect of offences committed in 1990 and 1991, the details of those offences were unavailable because, according to police procedure, those dockets had been destroyed. He was, however, able to supply details of six offences committed in 1998. They are all Obtaining by False Pretences cases and the way in which the offences were committed were similar. The summary of facts on docket No. 902/98 (Annexure C of the affidavit) states that on the 12^th of June 1995 the Applicant was running a business by the name of ASamraat Marriage Consultant@ at Toorak Road. In response to an advertisement in the Fiji Times, an applicant by the name of Maan Kuar asked the Applicant to arrange her marriage with a resident in Australia. The Applicant told her he was in a position to do this and took $16,696.00 from her. When he produced no results Ms Kuar reported the matter to police. Before the police were able to arrest him, the Applicant left for New Zealand, where he stayed until 1998 when he was deported to Fiji by the New Zealand authorities. He was then charged for the offence. The sentences passed in respect of each conviction in 1998 and 1999 are as follows:

A16.7.1998 12 months imprisonment;

22.7.1998 18 months imprisonment consecutive to CF 1421/98;

10.9.1998 6 months imprisonment consecutive to present term serving;

22.2.1999 18 months imprisonment concurrent to present term serving;

8.6.1999 18 months imprisonment concurrent to present term serving;

8.6.1999 12 months imprisonment concurrent to present term;

8.6.1999 9 months imprisonment concurrent to present term;

8.6.1999 18 months imprisonment consecutive to present term;

8.6.1999 9 months imprisonment consecutive to present term;

8.6.1999 6 months imprisonment;

8.6.1999 6 months imprisonment concurrent to each other, total 12 months & is concurrent to present term;

8.6.1999 12 months imprisonment concurrent to present term;

8.6.1999 12 months imprisonment concurrent to present term;

8.6.1999 6 months imprisonment concurrent to present term;

8.6.1999 12 months imprisonment concurrent to present term;

8.6.1999 3 months imprisonment concurrent to present term;

8.6.1999 12 months imprisonment concurrent to present term;

8.6.1999 9 months imprisonment concurrent to present term;

8.6.1999 6 months imprisonment concurrent to present term;

8.6.1999 12 months imprisonment concurrent to present term;

8.6.1999 13 months imprisonment concurrent to present term;

8.6.1999 6 months imprisonment concurrent to present term;

8.6.1999 9 months imprisonment concurrent to present term.@

On 25^th August 2000 he was convicted of a further offence of Obtaining by False Pretence in the Nadi Magistrates Court and sentenced to a further 5 years imprisonment to be served concurrent to the existing terms of imprisonment.

While serving these sentences, the Suva Magistrates Court on 17^th February 1999 issued 8 committal warrants for non-payment of fines. They were for offences committed in 1991, and in respect of which convictions were entered in 1992. The total of unpaid fines was $3225.00. The order for committal does not specify that the terms of imprisonment should be served concurrently or consecutively. State counsel informed me that the sentences were probably being served consecutively. He submitted that the total term to be served by the Applicant is 10 years and 7 months with the expected date of release being the 8^th of August 2005. The Applicant disagrees, saying that the effect of the consecutive committal warrants and the 5 year sentence in 2000, was to impose a total term of 12 years and 9 months.

Section 35(3) of the Penal Code provides that:

ANotwithstanding the provisions of subsections (5) of section 28 but subject to the provisions of subsection (4) of that section, the imprisonment which is imposed in default of payment of a fine shall commence on the day on which the person so in default was arrested by virtue of the sentence of the court and shall terminate whenever the fine and all expenses are either paid or levied by process of the law.@

Section 28(4) of the Penal Code provides:

AWhere a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence of imprisonment which is passed upon him under the subsequent conviction shall be executed after the expiration of the former sentence, unless the court directs that it shall be executed concurrently with the former sentence or any part thereof:

Provided that it shall not be lawful for a court to direct that a sentence of imprisonment in default of payment of a fine shall be executed concurrently with a former sentence.@

The committal warrants which total 64 months to be served in default of payment of fines therefore commence at the expiration of the sentence of five years imprisonment imposed in Nadi. The total sentence to be served is therefore considerably longer than 10 years and 7 months.

Despite the very serious offences committed, and the gross abuses of trust perpetrated by the Applicant in each case, the cumulative sentence is clearly manifestly excessive. Further, although his non-payment of fines is largely due to his own departure from Fiji between 1995 and 1998, it is a matter of concern that the committal warrants were not executed until 1999, some eight years after the original sentences were delivered. To allow committal warrants to accumulate in this way is clearly irregular. The result is a severely disproportionate sentence which must now be varied by review.

The sentences imposed for the convictions in 1998 and 1999 are all correct in principle. The five year term in 2000 is also right in principle, given the Applicant=s continuing course of conduct and the large sums of money obtained. However the terms of imprisonment to be served in default of payment of fine total 64 months which is clearly excessive for the non-payment of $3225.00. I therefore reduce this to a total of 12 months imprisonment. It will begin to run, in accordance with section 28 of the Penal Code, from the date of termination of the term of imprisonment imposed in Nadi.

Nazhat Shameem
JUDGE

At Suva
9^th August 2002