Tuinakelo v The State [1993] FJHC 64; Haa0036j.93s (4 August 1993)

IN THE HIGH COURT OF FIJI
(AT SUVA)
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 36 OF 1993

BETWEEN:

ULAMILA TUINAKELO
Appellant

AND

STATE
Respondent

Mr. J. Semisi for the Applicant
Mr. R.S. Vakalalabure for the Respondent

Dates of Hearing: 27th July and 4th August 1993
Date of Judgment: 4th August 1993

JUDGMENT

The Appellant appeals against her conviction and sentence by the Magistrate's Court at Nausori on a charge that between the 2nd and 16th day of October 1992 at Nausori in the Central Division, being employed as an Assistant Postal Officer at the Nausori Post Office she stole $13,342.53 the property of Fiji Posts and Telecommunications Limited. The Appellant pleaded guilty to the charge and was sentenced to two years imprisonment. The brief facts are these:

On the 27th of April 1993 the Appellant appeared in the Nausori Magistrate's Court. She had been charged under Section 274(b)(i) of the Penal Code Cap. 17. This section so far as relevant states that any person who being employed in the public service of the State steals any money belonging to or in the possession of the State or entrusted to or received or taken into possession by such person by virtue of his employment is guilty of a felony and is liable to imprisonment for fourteen years.

The Appellant stated that she understood the charge and pleaded guilty. The Prosecutor then outlined the facts to the Court. These were that the Appellant was employed by Fiji Posts and Telecommunications Limited at Nausori and was responsible for collecting telephone bills in the Nausori area.

Between the 2nd and 16th of October 1992 she collected $13,342.53 and did not deposit the money to the credit of her employer. She did not prepare a return to her Headquarters in Suva to reconcile with the amount she had collected. The discrepancy was discovered, and the matter was reported to the Police. The Police interviewed her and she admitted the offence, stating that she had used the money for her own use. The Appellant then admitted the above facts whereupon the Court found her guilty and convicted her as charged. She then stated in mitigation that she had been tempted to take the money because of financial constraints and that she had to care for her five children. She said that she had been doing this between 1989 and 1991. She tendered a letter from her local Methodist Church Minister who spoke very highly of the Appellant and said that since 1992 she had devoted herself to religious activities and became a lay-preacher. She had no previous convictions.

The Learned Magistrate then adjourned the case for sentencing on the 29th of April and on that day he gave a short ruling and sentenced the Appellant to two years imprisonment.

In this ruling the Magistrate began by saying that the Appellant should have been charged under Section 274(a)(i) of the Penal Code because Fiji Posts and Telecommunications Limited is a private liability Company, with its own management Board quite apart from the running of the Public Service Commission. By this I take the Magistrate to mean that the new Posts and Telecommunications Limited is quite distinct from the Public Service Commission and not in any way subject to that Commission. He then quotes from R v. West 64 T.L.R. 241 that:

"It is an essential feature of the Criminal Law that an accused person should be able to tell from the indictment the precise nature of the charge or charges against him so as to be in a position to put forward his defence and to direct his evidence to meet them."

He then stated that if the particulars do not comply with these long-established requirements the charge is defective. He then said that in the present case he did not think that the particulars if altered would extensively render the original charge defective in that it no longer represented the offence which the Appellant faced if the count was amended which he then apparently did. He then set out the provisions of Section 214(2) of the Criminal Procedure Code Cap. 21 which reads so far as relevant:

"(2) Variance between the charge and the evidence produced in support of it with respect to the date or time at which the alleged offence was committed or with respect to the description, value or ownership of any property or thing the subject of the charge is not material and the charge need not be amended for such variation."

It seems however that the Learned Magistrate stopped there and failed to take into account the provisions of Section 214(1)(a) of the Criminal Procedure Code which reads:

"(1) Where, at any stage of the trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case:

Provided that -

(a) where a charge is altered as aforesaid, the court shall thereupon call upon the accused person to plead to the altered charge."

There is nothing from the Court record to indicate that the Learned Magistrate took any plea from the Appellant to the charge which he had altered in the manner previously shown.

The Learned State Prosecutor submitted that the fact that the Appellant was not a public servant at the time of the offence was immaterial because the ingredients of the offence under Section 274(a) and (b) are similar and carry the same penalty of fourteen years imprisonment. Counsel for the Appellant on the other hand submitted that the status of the Appellant at the time she was charged was important and that it was an essential ingredient of the charge that the prosecution lead evidence that at the relevant time the Appellant's status was that of a public servant.

I had reservations about both of these submissions and during the adjournment of the hearing read the case of Hari Pratap s/o Ram Kissun v. Reginam, Criminal Appeal No. 12 of 1968, a decision of the Fiji Court of Criminal Appeal delivered on the 22nd of May 1968.

In Hari Pratap the Court of Appeal considered Section 204(1) of the Criminal Procedure Code, the present equivalent of which is Section 214. The facts of that case were different from those of the instant but the Court held that where additional counts were made to a charge a new plea had to be taken on the original counts as amended and that failure to do so rendered the proceedings thereafter a nullity. The Court said that from the time the plea should have been taken but was not, in the case before it, the Appellant was not properly before the Court. The proceedings were null and void and the evidence given could not be regarded.

At first glance Section 309(1) of the Penal Code appears to assist the Respondent but on examination I consider it does not. Section 309(1) reads:

"(1) No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on such plea by a magistrates' court, except as to the extent or legality of the sentence."

In this case the Appellant did not plead to the correct charge and so in my view the sentence she received was not legal although, if she had pleaded guilty to the charge as altered I have no doubt her sentence would have been legal.

Both counsel for the Appellant and the Respondent now agree that the proper course for me to follow is to uphold the appeal and quash the conviction of the Nausori Magistrate's Court of the 29th of April 1993. They also agreed that as the Appellant had admitted stealing the sum of money charged I should remit the case to the Nausori Magistrate's Court with a direction that the Appellant be re-arraigned on the charge as altered by the Magistrate and her plea taken to that charge and the matter then take its normal course. I accordingly do so.

However I am constrained to comment on the sentence of two years imposed by that Court on the charge before it. The Learned Magistrate took into account all the normal factors namely:

(1) that she has pleaded guilty to the charge;

(2) that she has shown remorse to what she had done;

(3) that she is a born again Christian after the offence was committed;

(4) that she is a first offender;

(5) that she is a mother of five children;

(6) that she may have lost her job;

(7) that she committed the offence to satisfy her family needs.

The Magistrate then quoted the remark of Lord Denning:

"If hunger were once allowed to be an excuse for stealing, it would open a door through which all kinds of lawlessness and disorder would pass."

With all of those factors I would agree. Learned counsel for the Respondent informed me that a sentence of two years imprisonment was within the current range of those being passed by the Courts. If this be so then in my view with respect the time for review of such sentencing practice has arrived. I was informed by both counsel that the Appellant gave no details of how she spent the money she had stolen except that it was to satisfy her family needs. This conveys nothing and in my view it behoved the Police when interviewing the Appellant to ask and obtain from her as many particulars as possible of how any money admitted to have been stolen had been spent. The Court trying such a case is entitled to know this.

In the present case the Appellant systematically and deliberately over a period of two weeks stole a considerable sum of money from her employer. Given a very generous remission she would have obtained on being admitted to prison if she had not appealed because of what, with respect, I personally find to be a very strange and undesirable practice, her effective sentence could hardly be said to serve as a deterrent to others who might have similar inclinations.

The Order of the Court is that the appeal is upheld and the conviction and sentence of the Nausori Magistrate's Court on the 29th of April 1993 are quashed. The matter is remitted to that Court on a date and time to be notified to the Appellant and the Respondent and the Appellant is to be then and there re-arraigned on the altered charge and her plea taken to that charge. The Appellant's bail is extended until further order.

JOHN E. BYRNE
J U D G E

HAA0036J.93S