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Prasad v State [2008] FJHC 90; HAA012.2008 (18 April 2008)

IN THE HIGH COURT OF THE FIJI ISLANDS
APPELLATE JURISDICTION
AT SUVA

Criminal Appeal Case No. HAA 012 of 2008

BETWEEN:

VINOD PRASAD
Appellant

AND

THE STATE
Respondent

Appellant in Person
Ms Julie Shah for the Respondent

Date of Hearing: 14 April 2008
Date of Ruling: 18 April 2008

RULING

1. Vinod Prasad, you were charged with another on one count of Obtaining Money By False Pretence: contrary to section 309(a) of the Penal Code Cap 17. You initially pleaded not guilty when the case was first called in the Magistrates Court on 3 August 2006. After 8 adjournments spanning a period approximately 11 months you changed your plea to one of guilty.
   
2. Before you changed your plea on 18 May 2007, the charge was read to you, you understood and it was also explained to you. The facts were outlined to you and admitted it.
   
3. You also admitted your previous convictions, which shows that you are a hard working and successful fraudster. Your claimed ill health does not seem to dissuade your ability to perpetrate your criminal activity.
   
4. You were sentenced to 3½ years imprisonment on 2 August 2007.
   
5. Your now appeal to this court against sentence only.
   

Grounds of Appeal

6. In your letter dated 6 June 2007 to the Registrar you stated your grounds of appeal thus:
   

" I feel that my sentence is extremely excessive and I would like to appeal against my sentence based on the following grounds:

1. I am sole bread winner in my family, I am married with three children [aged 17,16 and 12] and I look after my terminally in mother who is 58 years of age;
   
2. My co-accused was sentenced to 12 months imprisonment for 7 of the 15 cases we jointly charged for;
   
3. During my caution interview none of the complainants were present, nor was an identification parade done;
   
4. The total sum of money involved is $9000.00 as compared to the inflated sum of $45,000.00 that the Police accused me of obtaining through false pretences’.
   

7. From the above, the issues raised by the appellant are that the sentence is excessive and secondly, he claims unfairness due to disparity in the sentence he received compared to that of his co-offender.
   

Respondent’s Submission

8. On the claim of disparity in sentences between the appellant and his co-accused, the respondent’s submits that the learned Magistrate was correct in differentiating the sentence between the appellant and his co-accused. The appellant was the mastermind and principal offender, whereas the co-accused played a minor role in the commission of the offence. In this context the consideration by the learned Magistrate of the co-accused respective criminal records was relevant and the appellant has 133 previous convictions compared to his co-accused of 15.
   
9. On the claim by the appellant that the sentence of 3½ years is excessive, the respondent submits that it is not. In support of their submission, the respondent cited the case of State v Chand [2004] FJHC 53[HAA 001 of 2004], wherein Madam Justice Shameem reviewed recent High Court cases on sentencing for Obtaining Money by False Pretences and concluded that the tariff for sentence should be 18 months to 4 years.
   

Appeal Determination

Excessive sentence

10. Having carefully reviewed the sentencing ruling of the learned Magistrate, I am unable to find any basis for finding that the sentence passed on the appellant is improper in law or excessive. In my view, someone with the atrocious record of criminal offending which the appellant in this case has cannot be heard to claim that 3½ years imprisonment is excessive.
    
11. In this instance the 3½ years sentence is for 15 cases of Obtaining Money By False Pretence by the appellant. When you consider that in Steven Kumar v The State, FJHC Crim App Case No: HAA 039 of 2001 a 3 years imprisonment was upheld for one count of obtaining money by false pretence in the sum $7500.00, it will be evident that the sentence here is not excessive. The fact that the appellant is sickly and looks after her sick mother was considered by the learned Magistrate before she passed the sentence. It is proper in law. I have no basis on which to intervene
    
12. The cases discussed in State v Chand (supra) with regard to sentences that the High Court has passed in cases like the present, support the fact that the sentence in this case was correct. I uphold the sentence as proper and not excessive.
    
13. This ground of appeal has no merit and is dismissed.
    

Disparity in Sentence between co-accused

14. I have reviewed the basis on which the learned Magistrate sentenced the appellant. It is clear on the Court Record that the role each played was largely responsible for the disparity in the sentence. This is what the learned Magistrate said when sentencing the appellant:
    

‘ The 1st Accused [appellant] has 133 previous convictions. Since 1967 he has been in and out of prison. He is a habitual offender and it is highly unlikely that he’ll reform himself. As soon as he is out on bail he has re-offended. He’s last offence was committed on 13 February 2007 when he was out on bail.

I do not believe he takes care of his mother since he spends most of his time in prison’.

15. The law on this point is clear, sentence must be based on the circumstances prevailing at the time sentence is passed and where the court has co-offenders the sentence passed on each must, wherever possible, take into account the role played by each. See: Maciu Koroidua & Solomoni Qurai v The State FJHC Crim App. Case No: HAA 090 of 2007; Sepesa Paulo v R, Semi Ravunaceva v R, Simeli Sokosaya v R, FJCA Crim App Case No: AAU 032, 048, 051 of 1984.
    
16. I am satisfied that despite the disparity in the sentence, the role played by the appellant in particular was the critical one. It may even be fairly said that without his involvement, there would be no commission of the offence in the cases here. He was the mastermind and the director of the whole criminal enterprise and the co-accused was just a minor player.
    
17. In the light of the above, I find no merit in this ground of appeal and is dismissed.
    

ORDERS

18. I make the following Orders: this appeal is dismissed as having no merit. I uphold the decision in the Magistrate Court.
    

Isikeli Mataitoga
JUDGE

At Suva
18 April 2008