Ali v The State [1990] FJHC 9; Haa0068j.89s (2 February 1990)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 68 OF 1989

Between:

RUSTAM ALI
s/o Nadir Ali
Appellant

v.

STATE
Respondent

Appellant in Person
Ms. A. Prasad for the Respondent

JUDGMENT

The appellant was convicted after trial by the Suva Magistrate Court for an offence of Obtaining Money by False Pretences. He had pleaded not guilty and the prosecution called 4 witnesses in proving its case including the complainant and his wife and 2 police officers who had interviewed and charged the appellant respectively.

Upon his conviction on the 22nd September 1988 the appellant was sentenced to 2 years imprisonment and the learned trial magistrate also activated in full a suspended sentence of 6 months imprisonment for a similar offence committed in January 1988 thereby making a total sentence of 2 1/2 years imprisonment.

The appellant now appeals against his sentence arguing that it is harsh and excessive and he urges in support the hardship that his imprisonment has caused to his 3 young children.

The prosecution's case which was proved to the learned trial magistrate's satisfaction was that the appellant and an accomplice approached the complainant and his wife and offered to sell them a video camera and a watch for $1,500. The appellant had succeeded in gaining their confidence through the use of an ID. Card bearing his photograph and which described him as a "Travelling Salesman" for a named watch company.

The appellant and his accomplice were paid a deposit of $750 and the balance of $750 the following day. After the final payment a parcel was handed over to the complainant's wife which when opened revealed its contents of empty cigarette packets. There was no camera or watch.

The matter was then reported to the police who confirmed the withdrawal of $1,500 (in two equal amounts) from the complainant's bank account. The investigating officer also seized the appellant's "ID Card". He also interviewed the appellant who although he admitted receiving half of the money appeared to lay the blame on his accomplice.

At his trial the appellant gave sworn evidence professing his innocence and testifying to having received a payment of $350 from the complainant's wife. No mention is made about any goods changing hands. Needless to say this payment was denied by the complainant when he was cross-examined about it by the appellant.

The learned trial magistrate in convicting the appellant and his accomplice said:

"This case rests on credibility of witnesses. PW1 and PW2 (i.e. the complainant and his wife) appeared to be honest and truthful. They have no reason to tell lies they have no enmity against the 2 accused. Both accused were evasive and made general denials. I totally disbelieve them."

In sentencing the appellant the learned trial magistrate said:

"This is a case where I would be failing in my duty if custodial sentences were not given. Both accused are confidence-tricksters who cheated a decent couple of $1,500 of their hard earned money by playing a clever trick on them. Both have long lists of previous convictions although the 1st accused's record is somewhat worse than the 2nd accused."

In this latter regard it must be noted that the appellant has 5 previous convictions for similar offences of dishonesty to that with which he was convicted and although on each occasion he was given a suspended prison sentence he does not appear to have changed his ways and has drifted back into crime.

I accept an immediate custodial sentence was warranted I also accept that the children and family are inevitably the innocent victims when a father and sole breadwinner is sent to prison but dishonesty is not an acceptable means of providing for one's family. I note that the appellant has been allowed to serve the remainder of his sentence as an extra-mural prisoner and is therefore living with his 3 young children.

Having carefully considered this appeal and all the circumstances of the case I do not consider that the sentence was in any way harsh or excessive. The appeal is accordingly dismissed.

(D.V. Fatiaki)
JUDGE

At Suva,
2nd February, 1990.

HAA0068J.89S