Bese v The State [2005] FJHC 160; HAA0060.2005 (4 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA0060 OF 2005

BETWEEN:

MARECA DUIBANA BESE
Appellant

AND:

STATE
Respondent

Counsel: Mr. K. Singh – for Appellant
Mr. P. Bulamainaivalu – for State

Date of Hearing: 20th June, 2005
Date of Judgment: 4th July, 2005

JUDGMENT

Introduction

The appellant was convicted after trial on 15 counts of obtaining money by false pretence contrary to Section 309(a) of the Penal Code (Cap. 17). She appeals her conviction and 2 year sentence of imprisonment. Each of the charges was framed in the same way in that it was alleged that the appellant on a named date with intent to defraud obtained specific sums of money from the 15 individual complainants by falsely pretending she was in a position to arrange for Australian Visas.

At various dates in June of 2003 the appellant had obtained from fifteen poor people what for them were large sums of money. These good folk paid her this money for lodging and service fees for their visa applications and airfares. When interviewed by the police over a year later in October of 2004 the appellant admitted that she had received these individual sums of money, not used it as promised for visas but given it to “James” in Australia. This otherwise unidentified person known only as “James” was to process these applications. When charged the appellant subsequently promised to immediately repay all of the money herself. She has not.

It was common ground at trial that none of the complainants had their visa applications filed or processed by the Australian Embassy.

The Appeal

There were 3 main grounds filed for the appeal. The first and largely technical ground related to the admission into evidence of the statement by one Philip Joseph Dale dated the 9th of December 2003. Mr. Dale was an administrator from the Immigration Section of the Australian Embassy. He was about to leave the country and made a statement to a police officer confirming that none of the complainants visa applications had been received. This statement was admitted under Section 192 of the CPC under protest and objection by appellant’s counsel.

The protest and objection were quite correctly taken at the time of trial. The document and its admission into evidence did not comply with Section 192 of the CPC. However, in my view the document was relatively unimportant as there was other evidence such as the appellant’s admission in her caution interview statement (exhibits 10(a) and 10(b)) and the complainant’s testimony to substantiate the fact either directly or by inference that the appellant did not lodge these visa applications and could not account for the money otherwise than to say it was sent to “James”.

Accordingly, while I must technically uphold ground 1 it has no impact on the conviction.

Appellant’s counsel chose not to pursue ground 2 in preference for the third ground that the learned Magistrate erred in law by holding that this future promise was a false pretence (in reliance on the English decision of R v Dent [1955] 2 ALL ER 806, which holds that a representation as to a future event or future promise is not a false pretence of fact).

The Law describes the offence in this way:

(6)(a) Law

308. Any representation made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false, or does not believe to be true, is a false pretence.
     
309. Any person who by any false pretence-
     
     • (a) with intent to defraud, obtains from any other person any chattel, money, or valuable security, or causes or procures any money to be paid, or any chattel or valuable security to be delivered to himself or to any other person for the use or benefit or on account of himself or any other person; or.....
       

is guilty of a misdemeanour, and is liable to imprisonment for five (5) years.

Counsel for the appellant skilfully re-argued the point placed before the learned Magistrate that a future promise can never amount to a false pretence. In so doing he recited one of my sister Justice Shameem’s judgments against a fraudster with a similar modus operandi; Mr. Ramesh Chand. In advancing his case counsel understandably dwelt on the Chand decision most favourable to his argument, HAA 003 of 2004. However in doing so and failing to recognize the other Chand decisions, by my learned sister Justice and his Honour Justice Surman, counsel failed to provide adequate balance and overlooked the real ratio behind the more popular decision.

It is clear on a close reading of the favourable Chand decision (HAA0003 of 2004) that her honour while applying Dent did so in a precise assessment of whether or not the facts in that Chand case disclosed an existing fact which was false. Her Honour found they did not. Further, such facts as there were in support of the prosecution case were at best ambiguous and incapable in law of establishing the offence as charged. That is the real ratio of the decision.

As such it is not simply a matter of counsel in these types of cases pointing to a future promise and saying that can never be a false pretence. Rather each individual case must be analyzed to see whether or not the Prosecution can establish an existing false fact. That falsehood may come not only from the actual promise itself but that promise in combination with the subsequent actions of the accused and any subsequent excuse given for inaction.

Decision

I find that the appellant obtained the total of $4,549.00 from PW.1 to 15 and that this money was obtained for her own use. There is no other reasonable explanation for the 18 months delay in processing the promised visa applications or purchasing the promised air tickets.

The excuse made by the appellant that all the monies and papers were sent to some otherwise unidentified person known only as “James” in Australia for processing is so far fetched as to be completely incredible. This excuse tells against her state of mind at the time she obtained these funds from these relatively uneducated and unsophisticated people who believed her assurances. Her inaction and incredulous excuses underline the fact that at the time the money was obtained the appellant was doing little more than deceiving these folk to induce them to believe that she would obtain visas and was in a position to do so. That is that the money was being paid to obtain visas and airline tickets when clearly it was not.

The fact that the appellant did nothing to fulfil her side of the bargain assists the Prosecution’s case that at the time she defrauded these people of the money. Her false pretence of an existing fact was that she was in a position of arrange for Australian Visas when clearly she was not as she had no intention of doing so. As such the interesting factual matrix of The Queen v Dent is not applicable to this case and the Magistrate’s conviction was quite proper in the circumstances.

Sentence Appeal

In support of her appeal on sentence counsel for the appellant submits, on the basis of the sentences given to Mr. Chand in February of 2002 - 18 months and February of 2004 – 2 years, that a sentence of 2 years imprisonment for this appellant was manifestly excessive.

The appellant is 52 years old, a married woman with 7 children. She was a civil servant for 18 years and is now employed in her own businesses. She has no previous convictions. It is clear from a review of the Chand cases alone (Chand v The State, HAA0012 of 2003S, Chand v The State, Criminal Appeal Nos. 50, 51, 52 of 1991 and Chand v The State, HAA0095 of 2001 and The State v Chand, HAA0001 of 2004S), that the range of sentences for this type of offending is from 18 months to 3 years imprisonment.

A sentence of 2 years imprisonment appears to respect that sentencing tariff. However, the learned Magistrate failed to take into account the fact that this was a first offence for the appellant. While an adjustment was made because of her age and family circumstances no deduction was made to the aggravated total term for the fact that the appellant was a first offender.

Accordingly the sentence imposed on the 31st of March 2005 is quashed and substituted with one of 18 months imprisonment on each count to be served concurrently with each other.

Gerard Winter
JUDGE

At Suva
4th July, 2005