Suguturaga v State [2014] FJCA 206; AAU0084.2010 (5 December 2014)

IN THE COURT OF APPEAL, FIJI

[On Appeal from the High Court]
Criminal Appeal No. AAU0084 of 2010
[High Court Case No. HAC 007 of 2007S]

BETWEEN

ETUATE SUGUTURAGA
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA
Temo JA
Kumararatnam JA

Counsel : Appellant in Person
Mr. L. Fotofili for the Respondent

Date of Hearing : 12 September 2014
Date of Judgment : 5 December 2014

JUDGMENT

Goundar JA:
[1] The appellant was convicted after a trial in the High Court at Lautoka on one count each of forgery, uttering a forged document and obtaining goods on a forged document. On each count, the appellant was sentenced to 5 years' imprisonment. The learned High Court judge made the sentence for obtaining goods partially consecutive by ordering that sentence to commence 1 year after the date the sentence was imposed. The effect of this order was that the appellant was to serve a total sentence of 6 years' imprisonment.

[2] On 29 July 2013, the appellant was granted leave to appeal his conviction and sentence. However, at the hearing of the appeal, the appellant abandoned his conviction appeal and pursued his sentence appeal only. The grounds on which he was granted leave to appeal against sentence are:

1. The learned trial judge erred in law by failing to consider the appellant's remand period in sentence.
   
2. The learned trial judge erred in law in classifying the appellant as a habitual offender under section 10 of the Sentencing and Penalties Decree 2009.
   
3. The partially consecutive sentence is wrong in law as it breached the one transaction rule and the totality principle.
   
4. The learned trial judge erred in law and in fact in considering the appellant's previous convictions to enhance his sentence.
   
5. The total sentence of 6 years' imprisonment is manifestly harsh and excessive.
   

Evidence led at trial
[3] At trial, the prosecution called four witnesses. Two witnesses were tendered by the prosecution for cross-examination upon the appellant's request. The appellant gave evidence in his defence.

[4] The prosecution case essentially was that the appellant forged a Westpac Banking Corporation cheque belonging to Ba Provincial Holding Limited and then used the cheque to purchase goods at Courts Homecentre in Ba.

[5] On 14 May 2009, the appellant went to Courts Homecentre and identified himself as 'Sailosi Momoedonu' to a salesman. He said he would like to purchase brush cutters. After negotiating the price, the appellant agreed to pay $5154.00 for six brush cutters. The appellant then wrote this amount in the cheque leaf and presented it to the salesman as payment for the brush cutters. The salesman took the cheque to his manager for authorization. After the manager had given his authorization, the salesman accepted the payment and released the brush cutters to the appellant.

[6] Evidence was led from the signatories to the Westpac cheque account to verify whether the cheque contained their genuine signatures. They confirmed their signatures were forged and that they did not know the appellant at all. Evidence was also given by the owner of a carrier van and the driver who transported the brush cutters to a place in Sigatoka. The driver of the van implicated the appellant and one 'Umesh' as the persons who hired the carrier to transport the brush cutters.

[7] The appellant in his evidence said that he was in Ba visiting his relative when he received a call from Umesh Chand. He had known Umesh for 8 years. Umesh asked the appellant to assist him to purchase brush cutters for his grass cutting business. The appellant went and met Umesh. Umesh handed him a pre-signed Ba Provincial Holding Limited cheque. The appellant took the cheque and after negotiating a price, purchased six brush cutters. On Umesh's instruction the brush cutters were delivered to a place in Sigatoka. The appellant said he did not know the cheque was forged.

[8] In convicting the appellant, the assessors and the trial judge clearly rejected the appellant's evidence, and accepted the prosecution evidence that the appellant wilfully forged the Ba Provincial Holding Limited's cheque and then used it to obtain goods from Courts Homecentre in Ba. This finding was available on the evidence and I cannot see any basis to interfere with the convictions. The appeal against convictions being abandoned is dismissed.

Remand period
[9] The State concedes that the appellant was in custody on remand for 10 months and 10 days before he was sentenced in this case. Counsel for the State further concedes that there is nothing in the sentencing remarks to suggest that the learned High Court judge made allowance in sentence for the time the appellant spent in custody while on remand. Section 24 of the Sentencing and Penalties Decree states that any period of time during which the offender was held in custody prior to the trial be considered by the court as a period of imprisonment already served by the offender. I cannot see any reason why the allowance should not be made in the appellant's sentence for the time he spent in custody while on remand. The failure to make allowance in sentence to reflect the appellant's remand period was an error.

Habitual offender
[10] When the appellant was sentenced in this case, he had 108 previous convictions for dishonesty offences including 74 convictions for forgery. Because of the long string of previous convictions, the learned High Court judge declared the appellant as a 'habitual offender' pursuant to section 11 of the Sentencing and Penalties Decree to justify a longer sentence to protect the community. In fact, the sentence was increased by 2 years to reflect the appellant's status as a habitual offender. The appellant submits that the increase in sentence to reflect his status as a habitual offender was not permitted because forgery, uttering and obtaining are not offences that the Sentencing and Penalties Decree permits the court to use to determine a person to be a habitual offender.

[11] Section 11 of the Sentencing and Penalties Decree states:

"(1) A judge may determine that an offender is a habitual offender for the purposes of this Part –

(a) When sentencing the offender for an offence or offences of the nature described in section 10;

(b) Having regard to the offender's previous convictions for offences of a like nature committed inside or outside Fiji; and

(c) If the court is satisfied that the offender constitutes a threat to the community.

(2) The powers under this Part may be exercised by the court of Appeal and the Supreme Court when hearing an appeal against sentence. "

[12] Section 10 of the Sentencing and Penalties Decree states:

"This Part applies to a court when sentencing a person determined under section 11 to be a habitual offender for –

(a) a sexual offence;

(b) offences involving violence;

(c) offences involving robbery or housebreaking;

(d) a serious drug offence; or

(e) an arson offence."

[13] Also relevant is section 12 of the Sentencing and Penalties Decree which states:

"Where any court is proposing to impose a sentence of imprisonment on a person who has been determined to be a habitual offender under section 11 for an offence of a nature stated in section 10, the court, in determining the length of the sentence –

(a) shall regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and

(b) may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence."

[14] In my judgment, there are two prerequisites for an exercise of discretion to declare an offender a habitual offender under section 11(1) of the Sentencing and Penalties Decree. The first prerequisite is that the offender is convicted of an offence of a nature that is prescribed under section 10. If the first prerequisite is met, then the second prerequisite is that the sentencing court having regard to the offender's previous convictions for offences of similar nature must be satisfied that the offender constitutes a threat to the community. If the sentencing court is so satisfied, then a sentence that is longer than that which is proportionate to the gravity of the offence can be imposed under section 12 for the purpose of protecting the community. Section 12 has clearly created an exception to the proportionality principle in sentence. The exception allows for the use of previous convictions as an aggravating factor to enhance the offender's sentence in order to protect the community. The constitutionality of section 12 is open for arguments. I express no opinion on that issue in this appeal.

[15] As far as this case is concerned, the learned High Court made two errors. Firstly, the appellant's declaration as a habitual offender was unlawful because he was not convicted of offences that the Sentencing and Penalties Decree prescribed as habitual offences under section 10. Secondly, the learned High Court judge made impermissible use of the appellant's previous convictions as an aggravating factor to increase the sentence. The use of the appellant's previous convictions as an aggravating factor was an error of law (Tevita Tuisavusavu & Jone Savou v State, unreported Criminal Appeal No. AAU0064 of 2004S; 3 April 2009 at para [17]).

One transaction rule
[16] The appellant's contention under this ground is that the partially consecutive sentence that the learned High Court judge imposed breached the one transaction rule. The one transaction rule as it applies to sentencing was explained by the Supreme Court in Wong Kam Hong v The State, (unreported Criminal Appeal No. CAV0002 of 2003S; 23 October 2003) at p6:

"The "one-transaction rule" can be stated simply. Where two or more offences are committed in the course of a "single transaction", all sentences in respect of these offences should, as a general rule, be concurrent rather than consecutive. The underlying principle is that all the offences taken together constitute a single invasion of the same legally protected interests".

[17] There is no doubt that the appellant committed the three offences in the course of a single transaction. In fact, the cheque that was forged (count 1) was subject of uttering (count 2) and obtaining goods (count 3). The learned High Court judge acknowledged this fact in his sentencing remarks when he said "obtaining goods on a forged instrument must stand outside the forgery and the uttering even though it is an offence part and parcel with the forgery" (underlining mine). Clearly, there is an error of principle when the learned High Court judge said that the offence of obtaining goods on a forged instrument must stand outside when it was part and partial of the offence of forgery.

Result
[18] In my judgment, the combination of these errors has resulted in an excessive sentence for the appellant. Unfortunately, the appellant has served a substantial period of his sentence. To do justice in this case, the sentences imposed by the High Court are set aside and substituted with a head sentence of 4½ years' imprisonment for all three counts with a non-parole period of 3 years, to be served concurrently with any pre-existing sentence, effective from 28 September 2010.

[19] The appeal against sentence is allowed.

Hon. Justice D. Goundar
JUSTICE OF APPEAL

Hon. Justice S. Temo
JUSTICE OF APPEAL

Hon. Justice P. Kumararatnam
JUSTICE OF APPEAL

Solicitors:
Appellant in person
Office of the Director of Public Prosecutions for State