Sharma v State [2013] FJCA 75; AAU98.2010 (17 June 2013)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO. AAU 89 of 2010
(High Court No. HAC 122 of 2010)

BETWEEN:

ATIL SHARMA
Appellant

AND:

THE STATE
Respondent

Coram : Chandra RJA

Counsel : Appellant in person.

Ms. M. Fong for the Respondent.

Date of Hearing : 4 April 2013

Date of Ruling : 17 June 2013

RULING

1. This is an application for leave to appeal against conviction and sentence.
   
2. The Appellant was charged before the Magistrate's Court at Lautoka on the count of Obtaining Financial Advantage by Deception contrary to section 318 of the Crimes Decree No.44 of 2009.
   
3. The Appellant had deceived one Bijay Wati by dishonestly obtaining $3640 from her on the pretext of getting her employment.
   
4. The learned Magistrate found him guilty after trial and the case was remitted to the High Court for sentencing.
   
5. The learned High Court Judge sentenced the Appellant to 5 years and 6 months imprisonment and to serve 4 years before being eligible for parole.
   
6. The Appellant has filed a notice of appeal and thereafter filed amended grounds of appeal which are:
   
   1. That he was denied the right to be legally represented.
      
   2. That there was no trial within a trial to determine the admissibility of the confession.
      
   3. That the Court erred in allowing the prosecution witnesses to identify him in court for the first time and in accepting the evidence of identification.
      
   4. That the learned High Court judge who sentenced him erred in law and fact by stating that the offence should be included in the habitual offenders category.
      
   5. That he had been subjected to double jeopardy as the sentence was based on his previous convictions.
      
   6. That the Court erred in law by imposing a sentence exceeding 5 years.
      
   7. That he was a first offender under the new law.
      
7. As regards ground 1, the learned Magistrate has explained to the Appellant the right to Counsel and it is recorded that he had waived that right. As has often been stated the right to legal representation is not an absolute right (Seniloli v State [2004] FJCA 46) and in any event he had waived that right.
   
8. The record of the Magistrate's Court does not show that a confessionary statement of the Appellant had been admitted. The trial had proceeded on the evidence of the witnesses.

The caution interview although unchallenged had been disregarded by the learned Magistrate.

9. The Appellant had been identified by the complainant as well as by another witness in Court and he was given the right to cross examine the witnesses which he did not avail of. He chose to remain silent when given the opportunity to give evidence or lead any evidence if he wished to. There is no merit in this ground.
   
10. The learned High Court Judge in the course of his sentencing judgment has stated that though the Appellant is obviously a "habitual offender" that he was unable to classify him as such as this crime did not come within the categories set out in section 10 of the Sentencing and Penalties Decree 2009. It was only an opinion expressed by the learned Judge and had no bearing on the sentence imposed on the Appellant. Therefore this ground too lacks any merit.
    
11. The Appellant's position that there was double jeopardy as his previous convictions were taken into account has no merit as the learned Judge did not take those 41 previous convictions into consideration in imposing the sentence on the Appellant. The learned Judge considered the offence as particularly nasty and cynically operated against an unsophisticated and defenceless victim.
    
12. The Appellant's ground that by imposing a sentencing exceeding 5 years is of no merit as it has been observed by the learned High Court Judge that the penalty under the new Crimes Decree has doubled and that there was a need to revisit the tariff. He considered that the tariff for obtaining a pecuniary advantage by deception should be between 2 years and 5 years with 2 years being reserved for minor offences with little and spontaneous deception. It is on this basis that the top end of the range has been considered in imposing the sentence on the Appellant.
    
13. The ground that the Appellant should be considered as a first offender under the new law has no merit as he had 41 previous convictions of which 35 was for the same offence.
    
14. The application for leave to appeal filed by the Appellant has no merit and is frivolous and vexatious.
    

Order of Court

The application for leave to appeal against conviction and sentence is refused in terms of section 35(2) of the Court of Appeal Act (Cap.12).

Suresh Chandra
Resident Justice of Appeal