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State v Chand [2004] FJHC 53; HAA0001J.2004S (27 February 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0001 OF 2004S

Between:

STATE
Appellant

And:

RAMESH CHAND
Respondent

Hearing: 13th February 2004
Judgment: 27th February 2004

Counsel: Mr. B. Solanki for State
Respondent in Person

JUDGMENT

This is an appeal by the Director of Public Prosecutions against an 18 month term of imprisonment imposed by the Suva Magistrates’ Court for four counts of obtaining money by false pretences. However, at the hearing of the appeal, the Respondent raised complaints about the conviction, and because he is unrepresented, I heard his submissions although he did not file a cross-petition of appeal. I therefore deal with conviction first.

The Respondent was convicted of the following offences:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

RAMESH CHAND s/o Mahesh Prasad between 9th day of March 1999 and 10th day of April 1999 at Suva in the Central Division, with intent to defraud, obtained from RAJESHWAR PRASAD s/o Sita Prasad $10,730.00 in monies by falsely pretending that he the said RAMESH CHAND s/o Mahesh Prasad was in a position to arrange Permanent Migration Visa to Australia.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

RAMESH CHAND s/o Mahesh Prasad between 26th day of October 1998 at Suva in the Central Division, with intent to defraud, obtained from VIJAY SEN s/o Dwarka Prasad $4,000.00 in monies by falsely pretending that he, the said RAMESH CHAND s/o Mahesh Prasad was in a position to arrange Permanent Migration Visa to Australia.

THIRD COUNT

Statement of Offence

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

Particulars of Offence

RAMESH CHAND s/o Mahesh Prasad between 13th day of August 1998 and 22nd day of October 1998 at Suva in the Central Division, with intent to defraud, obtained from VIREND PRASAD s/o Muneshwar $8,000.00 in monies by falsely pretending that he the said RAMESH CHAND s/o Mahesh Prasad was in a position to arrange Permanent Migration Visa to Australia.

FOURTH COUNT

Statement of Offence

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

Particulars of Offence

RAMESH CHAND s/o Mahesh Prasad between 12th day of August 1998 and 22nd day of October 1998 at Suva in the Central Division, with intent to defraud, obtained from MOHITENDRA NARAYAN SINGH $15,000.00 in monies by falsely pretending that he, the said RAMESH CHAND s/o Mahesh Prasad was in a position to arrange Permanent Migration Visa to Australia.

Convictions

At the trial the Respondent was represented by counsel. Although the charges were laid on the 9th of August 1999, the trial did not proceed until the 3rd of July 2000. The evidence was that the Respondent undertook to arrange permanent residence for the complainants in return for various sums of money. In the case of the first charge, the complainant, a taxi-driver paid the Respondent $4,000 as a first payment, and $4,000 as a second payment. The Respondent took the passports of the complainant and his family, and returned them in 1998. They did not receive permanent residence status. The witness believed that the Respondent was working for the Australian High Commission.

Vjay Sen (PW2) thought that the Respondent was a travel agent and gave him $4,000 to get “migration visas” to Australia. Rajeshwar Prasad (PW3) paid him a total of $14,960 and 150 litres of pre-mixed fuel in order to get Australian visas. The Respondent had told him that he was able to obtain the visas for him. PW3’s evidence was supported by the evidence of Jhirendra Prasad who saw the money change hands and heard the Respondent say that the money was “for the visa.”

Rohitendra Narayan Singh (PW5) gave evidence that the Respondent was given $10,000 in order to obtain Australian visas. His evidence was supported by the evidence of Mohitendra Narayan Singh (PW6). He paid the $10,000 and he said he paid it because he believed the Respondent when he said he was in a position to get an Australian visa.

The Respondent was interviewed under caution. He admitted taking the money but said that they were all loans. He relied on documents tendered by the prosecution to show that these were loans. One such document (at p.102 of the record) is entitled “Promissory Note” in the sum of $5,500. However, also tendered were tax invoices for various sums of money “being for Australian visas.”

The Respondent gave sworn evidence. He said that he had borrowed money from each of the complainants and that Prasad had kidnapped him and forced him to sign the documents tendered by the prosecution. He said in evidence-in-chief that he had taken no money from Rajeshwar Prasad, but in cross-examination he agreed that he had borrowed $10,000 from him. He agreed that he had never paid back any of the loans and denied taking anyone’s passport.

Judgment was delivered on 15th November 2002. Much delay was caused by an interlocutory appeal, to the High Court, disputes about the contents of the record of previous convictions, a change of plea and another appeal against sentence. In his judgment the learned Magistrate accepted the evidence of the complainant on each count and rejected the accused’s explanation that the sums of money were given as loans. He considered the evidence on each count separately and correctly identified the only matter in dispute, and that was the purpose of the obtaining of the sums of money. At p.8 of the judgment he found:

“He held himself out as a person able to arrange permanent migration visas to Australia, to the public, when in fact, he was in no such position. He received the complainants’ moneys by falsely pretending to them that he could get their visas. He attempted to cover this up by drawing various promissory notes.”

In making these findings, the learned Magistrate correctly considered all the ingredients of the offences, and the evidence led to prove them. The Respondent claims that there were inconsistencies in the evidence of the prosecution. I can find no inconsistency which might have justified a rejection of the evidence for the prosecution. It would be surprising, in a case this old, to find that all witnesses were entirely consistent in every detail. A reading of the court record indicates a similar pattern of behaviour on the part of the Respondent which in turn indicates the reliability of each account. I consider the convictions to be correct and I am not persuaded to set them aside.

Sentence

The State submits that the sentences of 18 months imprisonment on each count to be served concurrently, is unduly lenient. Counsel referred to a number of authorities from England and Fiji and submitted that he should have been sentenced to a term between 3 to 5 years. The Respondent disagrees, saying that the delay between charge and sentence caused him to, in effect, receive a consecutive sentence because by the date of his sentence, he had all but served his continuing term of imprisonment.

Judgment was delivered on 15th November 2002. The case was adjourned to the 25th of November for mitigation and sentence. On the 25th of November, counsel for the Respondent asked for more time to prepare and the case was adjourned to 9th December 2002. On that day, counsel for the Respondent disputed the previous convictions. The prosecution agreed to correct them and the matter was adjourned to the 7th of March 2003. On the 7th of March the Respondent did not appear and the case was further adjourned for the service of a production order. In the meantime, another appeal had been filed in respect of the Respondent’s previous convictions. The Respondent agreed to a further adjournment. Finally on the 3rd of June 2003 the Respondent having told the court that he no longer wanted the services of his lawyer, told the court he was ready to proceed alone. The record of previous convictions was still disputed and the prosecution was asked to clarify the matter. On the 1st of August 2003, the court said that the High Court had clarified the question of previous convictions in a judgment delivered on the 18th of June 2003. The matter was then stood down, and, rather strangely, counsel again appeared on the scene to mitigate.

The submissions were that the Respondent was 50 years old, was married with 3 children, was due to be released from prison in February 2004, that he had already served 6 months in prison for the same case, when he had been wrongly sentenced, that he owned a taxi and panel-beating business, that he had stopped his visa immigration business since 1999 and that all his convictions older than 10 years should be disregarded.

The court found that the total amount of money obtained by the Respondent was $38,230, no part of which had been restored to the complainants. He considered that a 4 year starting point was appropriate. He deducted 6 months for the term already spent, and one year for the other mitigation. A further deduction of 1 year, for the delay in sentence was deducted, leaving a balance of 18 months imprisonment on each count (concurrent) to be served concurrently to his current prison term. In sentencing the Appellant, the learned Magistrate appears to have treated the Respondent as a first offender.

In Ramesh Chand v. State Crim. App. HAA0012 of 2003S, I considered a sentence imposed on the Respondent in this case, on a very similar charge. He was sentenced to 18 months imprisonment and I observed that a heavier sentence might have been justified given the seriousness of the case. I also observed that even without the disputed convictions, the Appellant was not a first offender and was not entitled to be treated as one.

In Steven Rajendra Kumar v. The State Crim. App. No. HAA0039 of 2001S, I upheld a 3 year term of imprisonment for one conviction of obtaining $7,500 by falsely pretending to marry the complainant to take her to Australia.

In Robert Smith (1989) 11 Cr. App. R(S) 260, the appellant was convicted of theft, 4 counts of obtaining by deception and one count of attempting to obtain by deception. The complainants were elderly men. A sentence of 5 years imprisonment was reduced to 4 the Court of Appeal saying that the 5 year term was excessive.

In Raymond Charles Campbell (1995) Cr. App. R(S) 20, the appellant was sentenced to 5 years imprisonment for obtaining £64,000 from an elderly woman by false representations. The sentence was reduced in the Court of Appeal to 4 years imprisonment.

In Richard Neil Pashby (1982) 4 Cr. App. R(S) 382, a 5 year term was reduced to 3 years for 5 counts of obtaining property from elderly householders by false representations. In Robert Leslie Mitchell (1996) Cr. App. R(S) 299, a 3½ year term was upheld for obtaining £20,000 from elderly people by false pretences. The Court of Appeal found that the appellant who had previous convictions for similar offences, was “a menace to gullible and unsophisticated people.”

In Gary Boothe (1999) 1 Cr. App. R(S) 98, a 3½ term was reduced to 2½ years imprisonment for an advanced fee fraud involving a businessman victim whom the Court of Appeal found was a willing and greedy participant in the fraud. In Paul David Trippier (1993) 14 Cr. App. R(S) 177, a four year term was reduced to 3 years for the obtaining of substantial sums of money from elderly people by deception. In Ramesh Chand v. State Crim. App. No. 50, 51, 52 of 1991, Jesuratnam J reduced a total of 8 years imprisonment to a total of 4 years on very similar facts to the present case. In Ramesh Chand v. State Crim. App. 012 of 2003S I said that sentences for this offence range from 18 months to 3 years imprisonment, in Fiji.

In this case, the complainants are all uneducated and unsophisticated people who believed the Respondent’s assurances. Further they were all desperate to leave the country to migrate to Australia. The Respondent behaved in an unscrupulous and planned manner. A sentence of 3 years imprisonment would have been quite justifiable. A deduction of 6 months (for the term already served) was appropriate with a further deduction of 6 months for all other mitigation. I consider that the Respondent is the author of much of the delay before sentence was passed and I do not consider that argument to be compelling. Nor do I consider that this is an appropriate case for a concurrent sentence. These were separate incidents from the incident in Crim. App. 12/2003S and called for a consecutive sentence.

The sentence of 18 months imprisonment on each count is quashed and substituted with a 2 year term on each count to be served consecutive to the term currently being served.

The State’s appeal succeeds.

Nazhat Shameem
JUDGE

At Suva
27th February 2004