Singh v The State [2002] FJHC 128; HAA0021-0024.2002S (28 June 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.: HAA0021, HAA0022, HAA0023 & HAA0024 OF 2002
{ Suva Magistrates’ Crim. Case Nos: 3245 of 2001, 349, 350 & 348 of 2002 }

KULDIP SINGH
s/o Daya Singh
Appellant

v.

THE STATE
Respondent

Hearing: 21st June 2002
Judgment: 28th June 2002

Appellant - In Person
Mr. N Nand - For the Respondent

JUDGMENT

On 26^th February 2002 the appellant appeared before the Suva Magistrates’ and pleaded guilty in four different files involving six (6) counts. The appellant was convicted and sentenced as follows:

1. APPEAL 22 OF 2002:
   

ABDUCTION: Contrary to Section 152 of the Penal Code, Cap. 17.

Particulars of Offence

KULDIP SINGH s/o Daya Singh on the 5^th day of February 2002 at Samabula in the Central Division, abducted RANJINI DEVI d/o Muthu Goundar.

He was sentenced to two years imprisonment to be served concurrently.

2. APPEAL 23 OF 2002:
   

ESCAPING FROM LAWFUL CUSTODY: Contrary to Section 138 of the Penal Code.

Particulars of Offence

KULDIP SINGH s/o Daya Singh on the 2^nd day of February 2002 at Samabula in the Central Division being in lawful custody of Police Officer namely PC 2386 Vijay Narain escaped from such custody.

3. APPEAL 24 OF 2002:
   

First Count:

BURGLARY: Contrary to Section 299(a) of the Penal Code, Cap. 17.

Particulars of Offence

KULDIP SINGH s/o Daya Singh on the 12^th day of October 2001 at Samabula in the Central Division by night broke and entered the dwelling house of SALESHNI GOUNDAR d/o Muttu Goundar with intent to commit a felony therein namely Larceny.

Second Count:

LARCENY IN DWELLING HOUSE OF PROPERTY TO A VALUE AMOUNTING TO NOT LESS THAN TEN DOLLARS: Contrary to Section 270(a) of the Penal Code.

Particulars of Offence

KULDIP SINGH s/o Daya Singh on the 12^th day of October 2001 at Samabula in the Central Division, stole in the dwelling house of SALESHNI GOUNDAR d/o Muttu Goundar chattels one vodaphone valued $300.00, one gold chain valued $150.00, one pair of shoes valued $150.00, one iron valued $80.00, one dress valued $10.00, one pair flippers valued $7.00 and cash $50.00, a value amounting to not less than $10.00 the properties of SALESHNI GOUNDAR d/o Muttu Goundar to the total of $857.00.

He was sentenced on count 1 to two (2) years imprisonment concurrent and on count 2 to two (2) years imprisonment concurrent each. Count 1 and 2 to be served concurrently with Court file 249/2002.

4. APPEAL 21 OF 2002:
   

Count 1:

SACRILEGE: Contrary to Section 298(a) of the Penal Code, Cap. 17.

Particulars of Offence

KULDIP SINGH s/o Daya Singh between the 7^th day of October 2001 and the 9^th day of October 2001 at Navua in the Central Division, broke and entered a place of Divine Worship namely BAL VIKASH TEMPLE and stole therein 2 benzine lights valued $200.oo, 1 lantern valued $10.00 and a plastic bucket valued $2.00 to the total value of $212.00 the properties of the said BAL VIKASH TEMPLE.

Count 2:

ESCAPING FROM LAWFUL CUSTODY: Contrary to Section 138 of the Penal Code, Cap. 17.

Particulars of Offence

KULDIP SINGH s/o Daya Singh, on the 11^th day of October 2001 at Navua in the Central Division escaped from the lawful custody of Corporal No. 289 Ganpati Naidu.

On Count 1 he was sentenced to 12 months imprisonment to be served consecutive.

On Count 2 he was sentenced to 3 months imprisonment concurrent to Count 1.

The total term for which he would therefore serve it for all the above offences is 3 years and 3 months.

The accused was not represented at the trial in Magistrates’ Court and was not represented before this Court as well. He has filed the same grounds of appeal in all the four files. His grounds of appeal boil down to appeal against the severity of sentence in light of the mitigating factors which he says are his plea of guilty, that prison sentence will destroy his farm, that the complainant is his wife.

I shall deal with all the appeals together in one judgment. First, I shall look at appeal No. 22 of 2002 where the charge is Abduction. Section 309(I) of the Criminal Procedure Code reads:

"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."

This section therefore prohibits appeals except as to sentence where an accused has pleaded guilty. However, there is not an absolute rule. The High Court over the years has quashed convictions for one reason or another as in –

(a) Abdul Aziz Khan v. R. 13 FLR 79 where the court considered that the plea was equivocal.

(b) Saiyasi Sisaimata v. State Cr. Appeal 13 of 1998 at Labasa (unreported judgment) where the presiding Magistrate had failed to draw statutory defence to the attention of an unrepresented accused in case of defilement.

(c) Tevita Taimalawai v. State Cr. Appeal 21 of 2001 at Labasa unreported judgment of Justice Fatiaki where he quashed the conviction as appellant had pleaded guilty to offence unknown to law.

The above is not an exhaustive list.

The accused is charged under Section 152 of the Penal Code, which states:

"Any person who, with intent to marry or carnally know a woman of any age, or to cause her to be married or carnally known by any other person, takes her away, or detains her, against her will, is guilty of a felony, and is liable to imprisonment for seven years, with or without corporal punishment"

{ underlining is made for emphasis }

Under this section the mens rea of the offence is intent to marry or carnally know a woman. That is an essential ingredient of the offence. The particulars of offence (which are spelt out at the beginning of Judgment) made no reference to that essential ingredient. Halsbury Laws of England 3^rd edition page 388 at para. 707 states "where a particular intent is necessary ingredient of an offence, the intent must be stated in the indictment".

Counsel for the State conceded that the particulars of charge require intent to be expressed but submitted those facts as outlined and accepted by the appellant revealed intent. He says accused had sex and therefore intent was shown.

Section 117 of the Criminal Procedure Code requires that the statement of offence must give "such particulars as may be necessary for giving reasonable information as to the nature of the offence charged". The purpose of this is to inform the accused about the precise nature of charge against him so he can prepare his defence. Regrettably that is no so here.

The charge of abduction therefore is incurably defective as it is a fundamental error which goes to the root of the matter. The defendant I note in mitigation said that he wanted his wife to stay with him. In other words he wanted to reconcile with his wife. The issue is what was his intent at the time of taking of the wife.

In light of such assertion the court ought to have been put on alert and vacated the plea of guilty and entered a plea of not guilty and called for evidence to decide on the issue of intent.

For reasons aforesaid accused’s conviction is quashed and sentences set aside. A retrial is not ordered, as prosecution should have shown more care in drafting its original charge.

I shall look at appeal 23 of 2002, which deals with Escaping from Lawful Custody and appellant sentenced to 3 months imprisonment.

Escaping from lawful custody is a misdemeanour. The maximum penalty is not prescribed in the Section 138 but by virtue of Section 47 of the Penal Code, which prescribes penalties for misdemeanour the maximum penalty is two years imprisonment. Three months imprisonment is generally the minimum sentence an accused can expect for this type of offending unless there are exceptionally strong mitigating factors and which would be rare. I see nothing improper with 3 months imprisonment.

Appeal No. 24 of 2002 is in respect of Burglary in Count 1 and Larceny from Dwelling House in Count 2.

He was sentenced to 2 years imprisonment on Count 1 and 2 years on Count 2 concurrent to Count 1.

Needless to say the offences are serious. The Counsel for the State Mr. Nand expressed quite appropriately his concern at the way summary of facts was outlined to the Magistrate Court. All it said was facts "as per charge on Count 1 and Count 2 but property taken was only the mobile telephone".

Burglary carries a maximum sentence of life with or without corporal punishment. In light of the seriousness of the offence the prosecution should have given greater detail of facts. In cases of burglary the relevant facts are how the entry was gained, whether any implements were used to gain entry (an aggravating factor), were there others involved, time of night, were the premises occupied or vacant or occupiers out at the time, whether anyone inside the premises was disturbed. Questions of disturbance, ransacking, vandalism, fouling etc inside the premises, are also relevant.

Burglary is a serious offence. It shows that an accused has utter disregard for property of others. It is a prevalent offence.

Lord Lane CJ in MUSSEL 1 WLR 187 commented that –

"The effect of the burglary on the victims and the family is of obvious importance. It is trite but sometimes still overlooked that dwelling house burglary is in a very real sense an offence against the person as well as an offence of dishonesty. Even without direct personal injury, the victim of burglaries can suffer anxiety and distress which may last for many years and which far outweighs the value of the goods actually stolen."

The accused has pleaded guilty but he has three previous convictions for dishonesty. A two-year sentence for burglary is neither harsh nor excessive in this case.

Appeal 21 of 2002. It concerns one count of sacrilege for which the appellant was sentenced to one year and one count of Escaping from Lawful Custody for which he was sentenced to 3 months imprisonment.

The accused could not give any reason why he considered sentences harsh. In fact he said it was lenient. He said he committed the offence because he was separated from his wife. He needed money to come to Suva to attend his divorce case, a totally unacceptable explanation for breaking into a temple.

Counsel for the State submitted that even though value of property stolen was only $212.00, nevertheless it was stolen from a non-profit making organization, which relies on donations. So its impact is quite substantial.

I agree and further add that such activity affects a whole lot of people who go to worship at the temple.

The appeal against sentence is disallowed. This offence was committed well before the burglary and is unrelated to it so a consecutive sentence was proper. The end result is that the appellant’s sentences in respect of appeal 22 of 2002 is allowed as the conviction is quashed. However this will not affect the length of sentence he is serving because the sentences in other appeals remain unaffected which are as follows:

Appeal 23 of 2002 - 3 months consecutive

Appeal 24 of 2002 - Count 1 - 2 years

Count 2 - 2 years concurrent to Count 1

Appeal 21 of 2002 - Count 1 - 12 months consecutive

Count 2 - 3 months concurrent to Count 1.

{ Jiten Singh }
JUDGE

At Suva
28^th June 2002