Ateca v State [2002] FJHC 175; HAA0071J.2002S (4 October 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 071-074 OF 2002

Between:

SAINIMERE ATECA

a.k.a. ELIZABETH TUIQILAI
Appellant

And:

THE STATE
Respondent

Hearing: 30th September 2002
Judgment: 4th October 2002

Counsel: Appellant in Person
Ms A. Prasad for State

JUDGMENT

The Appellant, on the 2nd of May 2002, was sentenced to a total of 2 years imprisonment, for the following offences:

HAA071/02 (Suva MC Case No. 3111/00)

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309(a) of the Penal Code, Cap. 17.

Particulars of Offence

SAINIMERE ATECA a.k.a. ELIZABETH TUIQILAI on the 17th day of October 2000 at Suva in the Central Division, with intent to defraud obtained $9,800.00 from one NITYA NAND s/o Vasu Dewan by falsely pretending that she was in a position to arrange his business migration visa for New Zealand.

HAA072/02 (Case No. 3112/00)

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCE: Contrary to section 309(a) of the Penal Code, Cap. 17.

Particulars of Offence

SAINIMERE ATECA a.k.a. ELIZABETH TUIQILAI between 17th day of July 2000 and 30th day of September 2000 at Suva in the Central Division, with intent to defraud obtained $3,075.00 from one LAIEMA TALEMAIRA BARAVI by falsely pretending that she was in a position to arrange her migration visa for America.

HAA073/02 (Case No. 3113/00)

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309(a) of the Penal Code, Cap. 17.

Particulars of Offence

SAINIMERE ATECA a.k.a. ELIZABETH TUIQILAI on the 4th day of September 2000 at Suva in the Central Division, with intent to defraud obtained $1,500.00 from one PATRICK NAIR s/o Govind Nair by falsely pretending that she was in a position to arrange his family migration visa for New Zealand.

HAA074/02 (Case No. 3114/00)

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCE: Contrary to section 309(a) of the Penal Code, Cap. 17.

Particulars of Offence

SAINIMERE ATECA a.k.a. ELIZABETH TUIQILAI between 7th day of July 2000 and 2nd day of October 2000 at Suva in the Central Division, with intent to defraud obtained $3,975.00 from one ROSS MANI d/o Chin Sami by falsely pretending that she was in a position to arrange her family migration visa for Canada.

The charges were first laid on 7th of December 2000. The cases were called on the same day and the Appellant pleaded guilty to all the charges. The facts were outlined, and accepted. The Appellant mitigated and was remanded for sentencing to 21st December 2000. On the 21st of December, she changed her plea. Although there was no ruling on the issue, the learned Magistrate appears to have accepted her change of plea. The case was then adjourned to the 5th of February for mention. On that day, the Appellant pleaded not guilty. She failed to appear on the next mention date, and the court was told that she had been admitted to St. Giles Hospital. On 12th July 2001, the Appellant was represented by counsel from the Legal Aid Commission. Counsel tendered the Appellant’s psychiatric report (which certified her fitness to plead) and indicated another change of plea. Very properly, the learned Magistrate ordered another psychiatric report before the plea was taken again. The Appellant then appears to have spent some time at the St. Giles Hospital. On 18th April 2002, her counsel said that her application for legal aid had been rejected. Counsel then appears to have withdrawn although there is no note of that on the record.

The charges were then read and explained to the Appellant. The Appellant said that she understood them and admitted them. The facts were read out. In each case, they were very similar. Each complainant saw the Appellant who promised to make arrangements for visas to visit Australia or New Zealand. She would ask each complainant for a sum of money, for his passport and all other relevant documents. When no visas were forthcoming, the matter was reported to the police and the Appellant was arrested and charged. It appears that the Appellant was operating a business called the Navosa Consultancy Agency.

The facts in each case were admitted and the Appellant was convicted as charged. She was a first offender. In mitigation she said she had not been given her medication, and had not been able to work properly. She apologised to the complainants.

The learned Magistrate then proceeded to sentence. He considered the facts of the case, the Appellant’s previous good record, and her history of mental illness. He considered the planning and premeditation involved in the offending, and the fact that the Appellant had not compensated the complainants for their loss. He then sentenced the Appellant as follows:

File 3111/2000 - 2 years imprisonment;

File 3112/2000 - 12 months imprisonment;

File 3113/2000 - 9 months imprisonment;

File 3114/2000 - 12 months imprisonment.

All sentences were to be served concurrently. The learned Magistrate said “I have considered the “one transaction rule” and “totality rule” together with the _ discount and _ compulsory remission by the Prison Authorities when giving out the above sentences.”

The court record for the 2nd of May 2002 then reads as follows:

“Since this accused has not paid or reimbursed these four (4) complainants their full money, I order that she be sentenced to 9 months imprisonment in each Count but to be suspended for 2 years.

The suspended sentence is explained to this accused who has fully understand it.

28 days to appeal.”

It appears that the Appellant, was in effect sentenced twice. However, the second sentence purporting to impose suspended sentences is clearly invalid, because the Appellant had already been sentenced. The second ‘sentence’ was therefore imposed in error. The Appellant now appeals against her sentence. Her grounds of appeal may be summarised thus:

1. The Appellant was denied legal representation;
   
2. The Appellant’s plea was not unequivocal;
   
3. The sentence was harsh because of the Appellant’s mental illness.
   

Before the hearing of this appeal, I ordered a more recent psychiatric examination of the Appellant to ascertain the effect of incarceration on her mental illness. Both Appellant and State counsel agreed to this course of conduct. The contents of that report were made available to all parties at the hearing of this appeal. I return to the report later in this judgment.

The plea

A psychiatric report, dated 15th October 2001 certified the Appellant’s fitness to plead. It traced her history of mental illness from 1994 when she was first diagnosed as suffering from Schizo-Affective Disorder. In March 2001, after a period of recovery, she had relapsed and was diagnosed as having entered the manic phase of manic depressive psychosis. By 5th June 2001, she was declared stable. In April 2002, there was no evidence of mental illness, and there is therefore no reason to suspect that the plea was equivocal due to unfitness to plead.

On the 18th of April 2002, counsel appears to have withdrawn. The Appellant made no application for time to arrange alternative counsel. Indeed, because she had been represented by the Legal Aid Commission, it is fair to assume that she could have made no such arrangements because of lack of means. It is reprehensible that counsel for the Legal Aid Commission should have withdrawn without warning on a date set for hearing. The reason given for the withdrawal was that the “application was rejected by our office.” If this was so, why did the Legal Aid Commission appear on the Appellant’s behalf on two previous occasions?

Whatever the circumstances, the Appellant was left unrepresented at the eleventh hour. The learned Magistrate opted to proceed without counsel, to take the pleas. A better and wiser course of action would have been to ask the Appellant if she needed time to get alternative representation; or to prepare for the hearing herself. If the Appellant had pleaded not guilty, and the case had proceeded to trial, the risk of prejudice might have been very high indeed.

Instead the Appellant pleaded guilty. This was not the first time she had done so. Indeed, on one previous occasion, she had changed her plea. The history of the case, the Appellant’s response to the charges and the pleas, indicate a willingness to plead guilty. Further the facts on each file clearly disclosed the ingredients of the offences. Finally, in mitigation the Appellant raised nothing which might be read as raising a defence. She expressed remorse and admitted taking the money.

In all the circumstances, there is no reason to suspect that the pleas were not unequivocal. These grounds of appeal are unsuccessful.

Sentence

The two year sentence imposed in total is within the tariff for offences of obtaining money by false pretences. As I said in the case of Vinod Prasad -v- State Cr. App. No. HAA029 of 2002S, the tariff for such offences is between 18 months and 2 years imprisonment. The sums of money obtained, the taking advantage of credulous people, desperate to obtain visas, and the planning involved, render this case one of the more serious of its kind. However the Appellant is a first offender, has pleaded guilty, and has a history of mental illness. Further, the learned Magistrate erroneously took into account the one-third remission given by the Prisons Department.

The last report of the St. Giles Hospital on the effect of incarceration on the Appellant’s mental illness reads, inter alia, as follows:

“With regards to the specific queries to be addressed in this report:

1. St. Giles is able to provide treatment for Ms Tuiqilai during her incarceration. As aforementioned she has already received inpatient treatment and continues to currently receive outpatient care while in Prison;
   
2. Incarceration in itself is a stressor not only to those with a mental disorder but also those without. It is common that being out of one’s normal environment, away from family and loved ones and lack of freedom can be stressful and may lead to an aggravation or relapse of symptoms. However, having her more frequently reviewed at Hospital, adjusting her medications accordingly or inpatient treatment, if there is evidence of impending relapse, can counter this. It is also beneficial that while she is in Prison her medications are being supervised, since in the past, a few of her admissions have been due to non-compliance with treatment.
   

I would like to mention that Ms Tuiqilai is not the only psychiatric patient being followed up in the prison. We have a few of our patients (male and female) being regularly reviewed during their period of incarceration without any problems.

Lastly, the Women’s Prison has been accommodating and flexible to the needs of our patients as is necessary, in helping them, to maintain their mental well-being.”

In the circumstances, incarceration is unlikely to worsen the Appellant’s mental condition. On the contrary, her medication is likely to be better supervised while she is in prison.

However, the taking into account of the compulsory remission being wrong in principle, I reduce the sentence on File 3111/2000 by 6 months to 18 months imprisonment. The total length of imprisonment to be served is 18 months imprisonment. This sentence is within the tariff, reflects the seriousness of the offending and is not manifestly excessive.

Result

The appeal against convictions is dismissed. The appeal against sentence is allowed in that the sentence on File 3111/2000 is reduced to 18 months imprisonment to be served concurrently with the other counts. The second sentence of 9 months imprisonment suspended for 2 years, delivered on 2 May 2002 is invalid and is quashed. It is hoped that the Appellant’s mental illness is properly monitored in prison, and her medication efficiently supervised.

Nazhat Shameem
JUDGE

At Suva
4th October 2002