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State v Kumar [2012] FJMC 280; Criminal Case 1333.12 (12 October 2012)

IN THE MAGISTRATE'S COURT
AT SUVA
IN THE REPUBLIC OF FIJI ISLANDS
Criminal Case No: 1333/12

STATE

V.

RAJENDRA KUMAR
(1ST Accused)

AND

DINESHWAR PRASAD
(2ND Accused)

Prosecution : PC Pauliasi, Police Prosecutor.
Accused : Both Present – In Person.

SENTENCE

Introduction and the Charges

Dineshwar Prasad and Rajendra Kumar you both have pleaded guilty to the following 2 counts:

Count One

Statement of offence [a]

Obtaining Financial Advantage by Deception: contrary to Section 318 of the Crimes Decree Number 44 of 2009.

Particulars of Offence (b)

Rajendra Kumar and Dineshwar Prasad on the 3rd day of October, 2012 at Nabua in the Central Division, by deception dishonestly obtained $4000.00 cash from Yee Young Han.

Count Two

Statement of offence [a]

Dishonestly Causing a Loss: contrary to Section 324 of the Crimes Decree Number 44 of 2009.

Particulars of Offence (b)

Rajendra Kumar and Dineshwar Prasad on the 3rd day of October, 2012 at Nabua in the Central Division, obtained $4000.00 cash from Yee Young Han with the intention of dishonestly causing a loss of $4000.00 cash to Yee Young Han.

Statement of Facts and Submissions

You both chose to defend the case yourself having being given the opportunity to get legal representation. You both have admitted the statement of facts as read out by the prosecutor. You both have given Mitigation which this Court has considered.

Maximum Sentences

The maximum sentences for the charges are as follows. The maximum sentence for Obtaining Financial Advantage by Deception (Count 1) as prescribed under the Crimes Decree is 10 years imprisonment. The maximum sentence for Dishonestly Causing a Loss (Count 2) is 5 years imprisonment.

The Tariffs

1st Count – Obtaining Financial Advantage by Deception

Previously under the Penal Code the maximum punishment for the offence of Obtaining Money by False Pretence was 5 years. Now the Crimes Decree 2009 has maximum punishment as 10 years imprisonment. In The State v Atil Sharma Criminal Case No. HAC 122 of 2010L, Justice Madigan has set the tariff for Obtaining Financial Advantage by Deception as between 2 years to 5 years.

Justice Madigan further stated and this Court notes: “...The tariff for obtaining a pecuniary advantage by deception should now be between 2 years and 5 years with 2 years being reserved for minor offences with little and spontaneous deception. The top end of the range will obviously be reserved for fraud of the most serious kind where a premeditated and well planned cynical operation is put in place."

2nd Count – Dishonestly Causing a Loss
Dishonestly Causing a Loss is a new offence under the Crimes Decree and this Court notes that the Tariff for this offence has not been set yet. With the Maximum for the offence in mind, which is 5 years and considering other related offence, like the 1st Count, that is Obtaining Financial Advantage by Deception where the tariff is set as between 2 to 5 years, This Court takes as tariff for Count 2 as between 9 months to 24 months.

1st Count – Obtaining Financial Advantage by Deception

For each one of you, for the 1st Count this Court takes a starting point of 3 years as there was some planning involved, for the guilty plea on the 1st available opportunity the Court gives 1 year discount and further 3 months discount for your mitigations. Each one of you is sentenced for the 1st Count to 21 months imprisonment.
2nd Count – Dishonestly Causing a Loss
For each one of you, for the 2nd Count this Court takes a starting point of 12 Months, for the guilty plea on the 1st available opportunity the Court gives 4 months discount and further 2 months discount for your mitigation. Each one of you is sentenced for the 2nd Count to 6 months imprisonment.

Whether to suspend your sentence or Not

This Court will now consider whether your sentence should be suspended as Section 26 (2) (b) of the Sentencing and Penalties Decree provides that a sentence which is below two years could be suspended by this court. Should I suspend your sentence? I take in to consideration the relevant case law in deciding your sentence.

In State v Kesi [2009] FJHC 145; HAC 024.2009 Justice Goundar referred to the case of Panniker v State Cr. App. No. 28 of 2000, where Justice Pathik adopted the English guidelines on the proper level of sentence to be imposed in dishonesty cases that are set out in the case of Barrick [1985] 81 Cr. App. R 78 at 82.

This Court has also considered what Justice Shameem stated in State v Raymond Roberts [2004] FJHC 51,:-

"The principles that emerge from these cases are that a custodial sentence is inevitable where the accused pleads not guilty and makes no attempt at genuine restitution. Where there is a plea of guilty, a custodial sentence may still be inevitable where there is a bad breach of trust, the money stolen is high in value and the accused shows no remorse or attempt at reparation. However, where the accused is a first offender, pleads guilty and has made full reparation in advance of the sentencing hearing (thus showing genuine remorse rather than a calculated attempt to escape a custodian sentence) a suspended sentence may not be wrong in principle. Much depends on the personal circumstances of the offender, and the attitude of the victim."

Having noted the law on suspended sentences this Court notes that you both are not young and you both are not 1st Offenders. Full restitution has not been made. Rajendra you have several previous convictions. It seems that you do not want to be a law abiding citizen. Dineshwar, this Court takes your previous conviction as spent. This Court will not suspend both of your sentences, as you both planned well to obtain money from the complainant. As to the two counts, the sentences for each count will be concurrent as they arose out of the same transaction.
The message must go out that anyone who is deceitful and conniving and obtains financial advantage by deception will get custodial sentence.
Your sentences are as follows:
Accused One – Rajendra Kumar– Count 1 – 21 months imprisonment, Count 2 – 6 Months Imprisonment. (Count 2 term of imprisonment is concurrent to Count 1)
Accused Two – Dineshwar Prasad – Count 1 – 21 months imprisonment, Count 2 – 6 Months Imprisonment. (Count 2 term of imprisonment is concurrent to Count 1)
These sentences are concurrent to Case #1330/12.
28 days to appeal.

Chaitanya Lakshman
Resident Magistrate
12th October 2012