Vakayadra v The State [2003] FJHC 92; HAA0099J.2002S (28 February 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO. HAA0099 OF 2002S

BETWEEN:

SETAREKI VAKAYADRA
APPELLANT

AND:

THE STATE
RESPONDENT

Appellant in Person
Mr R. Lajendra for State

Hearing: 21st February 2003
Judgment: 28th February 2003

JUDGMENT

The Appellant on the 15th of August 2002, pleaded guilty to the following offence:

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309 of the Penal Code, Act. 17.

Particulars of Offence

MOSESE SAUNIVEKAU, MARIKA GAFA, SETAREKI VAKAYADRA, and SANAILA VESIKULA on the 23rd day of July, 2002 at Suva in the Central Division, with intent to defraud, obtained $700.00 in monies from YANG HUA by falsely pretending that a parcel containing stones and papers which was sold to the said YANG HUA, contain a Dell Lap Top Computer.

The 1st and 2nd accused pleaded not guilty. The Appellant and the 4th accused pleaded guilty.

The facts were that on the 23rd of July 2002, the Appellant and two others approached the complainant, at Suva Point. The complainant was a student at the Central Queensland University. They offered to sell the complainant a lap top computer for $700. He agreed and went with them to the ANZ Bank where he withdrew money. He then paid $700 to the Appellant and his companions. They gave him a carton, which contained stones and paper. The complainant discovered the deception when he returned home and reported the matter to police.

The Appellant was arrested and charged. He made admissions to the police. No money was recovered from him.

The Appellant admitted these facts, and said he had taken $500 for himself. He admitted 14 previous convictions. Of those, at the hearing of the appeal, he said that one conviction in 1991 of Tavern Breaking, Entering and Larceny was incorrect.

In mitigation the Appellant said he was 32 years old, single, unemployed and had stayed out of trouble since 1995. He expressed remorse but said he was in no position to pay back the $500.

The Learned Magistrate said that the offence was serious, and was a violation of the complainant’s rights. He was sentenced to 18 months imprisonment. The 4th accused was also given the same sentence but it was suspended for 3 years because he was a first offender. State counsel informed me that the case against the 1st and 2nd accused was withdrawn by the prosecution. The Appellant appeals against his sentence on the ground that his co-accused was given a non-custodial term, on the ground that insufficient weight was put on his mitigating factors and on the ground that he had tried to stay out of trouble for more than 7 years.

State counsel opposes the appeal, saying that the tariff for the offence ranged from 18 months to 2 years imprisonment and that the Appellant had in fact received a sentence at the lowest end of the range.

The maximum sentence for obtaining by false pretences is 5 years imprisonment. The tariff is considerably less. In Lawrence Raju v. State Crim. App. No. HAA0098 of 1990, the appellant had obtained a total of $6000 by falsely promising to marry the complainant’s daughter. A total of 3 years imprisonment was reduced to 2 years imprisonment by Jesuratnam J, to properly reflect the totality of the offending.

In Rustam Ali v. State Crim. Appeal No. 68 of 1989, the appellant was sentenced to 2 years imprisonment with a 6 months suspended sentence activated and added to the term, on the basis of facts which were similar to those in this case. In that case the appellant had obtained $1500 for the complainant after pretending to sell him a video camera and watches in a parcel. When the complainant opened the parcel he found it contained empty cigarette packets. The appellant had 5 similar previous convictions. The appeal was dismissed by Fatiaki J.

Surman J. in Ramesh Chand v. State Crim. App. No. HAA0095 of 2001 reduced a 2 year term of imprisonment to 18 months. The appellant had obtained $27,000 from the complainant and had 25 previous convictions.

Similarly in James Shiu Narayan v. State Crim. App. HAA0007, 8 and 9 of 1997, Pathik J dismissed an appeal against a total of 3 years imprisonment in respect of 3 separate counts of obtaining by false pretences. The appellant had obtained a total of $25,680 and was over 64 years old.

Finally in Vinod Prasad v. State Crim. App. No. HAA0029 of 2002S, the appellant was sentenced to 2 years imprisonment for obtaining $3032 from the complainant by pretending to obtain visas for him and his family to visit Australia. I dismissed the appeal, saying that the 2 year term was within the tariff and correct in principle. The tariff for offences of this nature therefore appears to be 18 months to 2 years, with a sentence of 3 years imprisonment given for multiple counts of large sums of money.

This Appellant therefore received a sentence at the lowest end of the tariff. It did not warrant suspension. The Appellant was not a first offender. Excluding his disputed conviction, he has 13 previous convictions most of which are for offences of dishonesty. He was fortunate to receive an 18 month term.

This appeal is dismissed.

Nazhat Shameem
Judge

At Suva
28th February 2003