Bukai v The State [1995] FJHC 156; Haa0029j.95b (25 October 1995)

IN THE HIGH COURT OF FIJI
At Labasa
Appellate Jurisdiction

CRIMINAL APPEAL NO. 0029 OF 1995

Between:

VILIKONA BUKAI
Appellant

- and -

THE STATE
Respondent

Mr. A. Kohli for the Appellant
Ms. R. Shafiq for the Respondent

JUDGMENT

On the 6th of March 1995 the appellant was charged in the Labasa Magistrate Court with five (5) offences including a charge of Obtaining Credit by False Pretence; a count of Robbery with Violence and 3 other driving related offences. He elected trial in the Magistrate Court and pleaded not guilty to all offences.

On the 18th of April 1995 after a short trial in which the appellant represented himself, the learned trial magistrate convicted him on all counts and imposed various monetary fines totalling $130 and consecutive sentences of imprisonment to a total of 4 1/2 years. He was also disqualified from obtaining or holding a Driving Licence for a period of 12 months.

The case for the prosecution on the count of Obtaining Credit is that the accused and his companion (not before the Court) entered the complainant's shop and obtained various items which they took away without paying for them. Similarly, on the Robbery count the prosecution's case is that the accused and his companion had approached the complainant's van which was stopped on the side of the road and had proceeded to remove the ignition keys after assaulting the driver.

Thereafter the accused's companion had commandeered the driver's wristwatch and wallet containing $13.00 and the passenger's wristwatch and 3 gold chains before being chased away by the accused. The driver and his passenger/wife then got off their van and ran to a nearby house and telephoned the police. The accused was last seen driving the van off in the direction of Malau.

The appellant shortly after his conviction, presented a petition urging numerous grounds of appeal however these have subsequently been withdrawn and are now replaced by 2 grounds of appeal as follows:

"(a) That the learned Trial Magistrate erred in law and in fact in convicting the Appellant on Counts 1 and 2 in the absence of any evidence to support the same.

(b) That the sentence imposed on the Petitioner is harsh and excessive in all the circumstances of the case."

Ground (a) is clearly framed in very general terms and in the absence of particulars, had to be left to counsel at the hearing of the appeal to make it intelligible. It is however confined to the offences of Obtaining Credit and Robbery with Violence.

The learned trial magistrate in convicting the appellant on both counts has quite plainly relied upon the 'doctrine of common intention' which is enacted in statutory form in Section 22 of the Penal Code which provides:

"When two or more person form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

In arguing the appeal learned counsel for the appellant submits that the learned trial magistrate erred in the application of the 'doctrine' not only because the charges do not permit of its application but also the evidence does not support it.

As I understood counsel's submissions his complaint against the conviction on Count 1 of Obtaining Credit by False Pretence was based firstly, on a matter of form in that it was submitted the charge was improperly and inadequately framed and secondly, on the absence of any evidence to support an inference that the appellant (as opposed to his companion) had incurred any debt and/or had any 'intent to defraud'.

As to the former, the charge reads as follows:

Statement of Offence

OBTAINING CREDIT BY FALSE PRETENCES: Contrary to Section 310 of the Penal Code Cap. 17

Particulars of Offence

VILIKONA BUKAI, on the 4th day of March, 1995 at Labasa in the Northern Division, with intent to defraud, incurred credit of $10.13 to Pertambi Sami Mudaliar s/o Tanappa Mudaliar without paying it.

It is clear from the above 'Particulars' that the prosecution has failed to allege any 'false pretence' as having been made or given by the accused. But that does not render a charge under Section 310 of the Penal Code (as opposed to Section 309) irremediably defective.

This is so because unlike an offence under Section 309 which expressly requires the averment and proof of a 'false pretence', an offence under Section 310(a) may be committed by means of "any false pretence or by means of any other fraud." In this regard the headnote in R. v. Thompson (1919) 5 Cr. App. R.9 states:

"Pretending to buy without any intention of paying is fraud other than false pretences."

Quite clearly despite the inaccurate description of the offence in the Statement of Offence, the particulars provided in the charge are adequate in my considered view, to give the accused "... reasonable information as to the nature of the offence charged."

Furthermore a 'false pretence' may be conveyed not only by words or in writing, it may be conveyed 'by conduct' and in this latter regard learned State Counsel submits that the accused and his companion in ordering goods at the complainant's shop held out at the very least by their conduct an implied promise to pay for the goods before departing from the shop premises as is the ordinary custom where the customer has no charge account.

Even if I were wrong in that view, I am more than satisfied having regard to the nature of the accused's defence to Count 1, which appears to have been one of complete ignorance, that no conceivable prejudice could have been caused to the accused by the way in which the Count was framed. Needless to say I would have no hesitation in applying the 'proviso' to this submission which is wholly unmeritorious.

As to the second limb of counsel's argument on Count 1, in R. v. Jones [1897] UKLawRpKQB 173; (1898) 1 Q.B. 119 where the defendant ordered a meal in a restaurant but made no representations as to his ability to pay and after consuming it, said that he was unable to pay for it, Lord Russell of Killowen C.J. in dealing with the identically worded Section 13 in the Debtors Act 1869 said at p.124:

"There are three element which have to be considered in the construction of that Section: first there must be an incurring of a debt or liability; secondly there must be an obtaining of credit; and thirdly, there must be fraud: the conjunction of these three ingredients makes the offence."

(my underlining)

and then in words which are equally applicable to the circumstances of this case his lordship said at p.124:

"No one can doubt that the defendant did incur a debt or liability; he ordered goods under circumstances which implied a promise to pay for them. Then did he obtain credit? We are of opinion that he did. The (shopkeeper) might have said that he would not furnish him with the goods until he paid the price, or he might have insisted on payment in actual exchange for each article as it was supplied, but he did neither; he furnished the goods under circumstances which passed the possession and property in them, relying on the readiness and ability of the defendant to pay. It does not seem to matter that the period of credit was a short period; he trusted the defendant and parted with his goods without insisting on prepayment ... We think, therefore, that credit was obtained. Thirdly, was there fraud? There was a debt, and there was credit, and we think there was ample evidence to justify ... the conclusion that the defendant was guilty of fraud."

Learned counsel for the appellant seeks however to distinguish between the respective roles of the accused and his compatriot in the incurring of the debt by confining the accused's dealings with the shopkeeper to the purchase of a packet of Rothmans cigarettes and an ice cream for his daughter.

The shopkeeper's evidence however is quite emphatic that both "the accused and his company" had entered his shop and 'they had bought cigarettes and corned mutton' and when their demand for more items was refused, they left the shop without paying for the items and drove off in the same taxi in which they had both come. Subsequently the items were removed from the taxi by the accused's daughter and wife.

In somewhat similar vein counsel approached the evidence on the Robbery count. He highlighted how it was the accused's companion who had removed the keys from the van, and assaulted the driver and demanded his wristwatch and wallet and had then removed the wristwatch and gold chains from the passenger whilst the accused had done nothing. If anything counsel submits the evidence suggests that the accused remonstrated with his companion/brother-in-law and his companion's wife (the accused's sister) and finally the accused chased his companion away after an exchange of blows.

All this may be contrasted with the fact that the accused received the van keys soon after it was removed and he retained them and actually drove the van away from the scene of the offence. Furthermore the learned trial magistrate who saw and heard the witnesses, laid emphasis on both the timing and the token nature of the accused's intervention in his companion's escapade as being sufficient to support the conclusion that: "... the accused entertained a common intention with his brother-in-law/companion to commit the said offence."

In this case it need hardly be said that the accused was voluntarily present in the company of his companion and was aware of, even 'shocked', by the commission of the offences. Now as the brother-in-law and someone who eventually did do something about his companion's actions, he could have and should have taken some more meaningful steps to prevent the commission of the offences but instead as the learned trial magistrate observed: "... he did not do anything of that sort apart from standing by."

I accept at once that the evidence does suggest that the accused's compatriot played a more prominent role in the acquisition of the goods and in the assault and robbery of the occupants of the van but nevertheless, given the circumstances of the case can it be said that the learned trial magistrate erred in applying the 'doctrine of common intention'?

In considering this question I have borne in mind the dictum of Hawkins J. in the 'locus classicus' in this area of the law, namely, R. v. Coney [1882] UKLawRpKQB 30; (1882) 8 Q.B.D. 534 when he said at p.557:

"In my opinion to constitute an aider and abettor some active steps must be taken by word or action, with the intent to instigate the principal ... Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances offer cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not."

Applying that passage to the judgment of the learned trial magistrate in the present case I have come to the firm conclusion that he was not only the best person to decide the matter but further that he correctly decided it. In the result the appellant's conviction on both Counts 1 and 2 of Obtaining Credit and Robbery with Violence is upheld and the appeal against conviction is hereby dismissed.

I turn next to deal with the appeal against sentence which although unlimited in its scope was confined by counsel at the appeal hearing, to the sentences of imprisonment imposed on the appellant.

In this regard the learned trial magistrate sentenced the appellant to 12 months imprisonment on the Obtaining Credit Count 1; to 3 years imprisonment on the Robbery Count 2; and 6 months imprisonment on the Unlawful Use of Motor Vehicle Count 3 with all 3 sentences being ordered to run consecutively.

Are these sentences 'harsh and excessive in the circumstances of the case' as urged by learned counsel for the appellant or were they required to deter an offender whom State Counsel described as "(having) no regard for the law?"

A cursory examination of the relevant penalties provided in the Penal Code for the offences of Obtaining Credit (S.310) and Unlawful Use of a Motor Vehicle (S.292) reveals, that in respect of the appellant's conviction for these offences, the trial magistrate imposed the maximum prison sentence provided by the legislature namely, 12 months imprisonment and 6 months imprisonment, respectively.

On the principle that maximum sentences are intended for the worst possible case of offending and bearing in mind the rather paltry sum involved in Count 1 and the circumstances and duration of use of the van in Count 3 and the absence of any damage to it, the sentences imposed on Counts 1 and 3 cannot but be considered 'harsh and excessive'. They are accordingly quashed and in substitution therefor I impose the following sentences: On Count 1 a sentence of 3 months imprisonment and on Count 3 a sentence of 1 month's imprisonment.

With regards the sentence of 3 years imprisonment on the Robbery Count 2 even accepting that the offence carries a possible maximum sentence of life imprisonment the learned trial magistrate makes no specific mention of the role of the appellant in the perpetration of the offence which by all accounts, must be considered minimal albeit criminal.

It is trite that in sentencing an offender a Court must have regard to the nature of the offence committed and the circumstances in which it was committed. As was said by Mishra J.A. in reducing the sentences for Robbery with Violence in Sepesa Paulo and Others v. R. Cr. App. No. 32, 48 & 51 of 1984 (unreported) at p.4:

"In our view it is also important that where several accused persons are jointly involved in the commission of an offence sentences should, wherever possible, take into account the role played by each."

This the learned trial magistrate has clearly failed to do and indeed I would go so far as to say that he was unduly concerned with the appellant's list of previous convictions and as a result imposed a severe sentence for the trifling role which the appellant played in the commission of the offence.

Accordingly the sentence on Count 2 is reduced to one of 11 months imprisonment which when added to the substituted sentences earlier imposed on Counts 1 & 3 makes a grand total of (11 + 3 + 1) = 15 months imprisonment.

For the sake of completeness the sentences are all ordered to take effect from the 18th of April 1995. To this limited extent the appeal against sentence succeeds and is granted.

(D.V. Fatiaki)
JUDGE

At Labasa,
25th October, 1995.

HAA0029J.95B