Rizwan v State [2010] FJHC 411; HAM108.2009S (6 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

MISCELLANEOUS CASE NO. HAM 108 OF 2009S

MOHAMMED RIZWAN

V

STATE

Counsels: Appellant in Person
Ms. J. Cokanasiga for the State

Hearings: 9th April 2010
Ruling: 6th August 2010

JUDGMENT

1. On 27th January, 2010, the court received an application from the appellant to appeal his 6 years prison sentence out of time. The 6 years prison sentence arose out of Nausori Criminal Case Nos. 134/08 and 471/08. In Criminal Case No. 134/08, the charges were as follows:

Statement of Offence

OBTAINING GOODS ON FALSE PRETENCE: contrary to section 309(1) of the Penal Code, Cap 17.

Particulars of Offence

MOHAMMED RIZWAN s/o RAM ANUGH MAHARAJ on the 8th day of August, 2008 at Waimaro, Tailevu in the Central Division, with intent to defraud, obtained 5 Billy goats valued at $1000.00 from Raja Ram s/o Ranga Sami Raja and issued him with a Bank of Baroda deposit slip by falsely pretending that it was cheque leaf.

2. In Nausori Criminal Case No. 471/08, the charges were as follows:

FIRST COUNT
Statement of Offence

OBTAINING GOODS BY FALSE PRETENCE: contrary to section 309(1) of the Penal Code, Cap 17.

Particulars of Offence

MOHAMMED RIZWAN s/o RAM ANUGH MAHARAJ on the 18th day of July, 2008 at Waituri, Nausori in the Central Division, with intent to defraud, obtained 16 ducks valued at $425.00 from MOHINI LATA d/o VIDYA PRASAD and issued her with a Bank of Baroda deposit slip by falsely pretending that it was a cheque leaf.

SECOND COUNT
Statement of Offence

OBTAINING GOODS BY FALSE PRETENCE: contrary to section 309(1) of the Penal Code, Cap 17.

Particulars of Offence

MOHAMMED RIZWAN s/o RAM ANUGH MAHARAJ on the 21st of July, 2008 at Cautata, Nausori in the Central Division, with intent to defraud, obtained 40 chickens valued at $400.00 from ASHMIT DIVNESH CHAND s/o AMI CHAND and issued him with a Bank of Baroda deposit slip by falsely pretending that it was a cheque leaf.

THIRD COUNT
Statement of Offence

OBTAINING GOODS BY FALSE PRETENCE: contrary to section 309(1) of the Penal Code, Cap 17.

Particulars of Offence

MOHAMMED RIZWAN s/o RAM ANUGH MAHARAJ on the 22nd day of July, 2008 at Baulevu, Nausori in the Central Division, with intent to defraud, obtained 4 goats valued at $450.00 from GURBACHAN SINGH s/o MER CHAND and issued him with a Bank of Baroda deposit slip falsely pretending that it was a cheque leaf.

FOURTH COUNT
Statement of Offence

OBTAINING GOODS BY FALSE PRETENCE: contrary to section 309(1) of the Penal Code, Cap 17.

Particulars of Offence

MOHAMMED RIZWAN s/o RAM ANUGH MAHARAJ on the 23rd day of July, 2008 at Uracalia, Baulevu, Nausori in the Central Division, with intent to defraud, obtained 45 roosters valued at $460.00 from VENKAT RAMEN s/o NARAYAN SAMI and issued him with a Bank of Baroda deposit slip by falsely pretending that it was cheque leaf.

FIFTH COUNT
Statement of Offence

OBTAINING GOODS BY FALSE PRETENCE: contrary to section 309(1) of the Penal Code, Cap 17.

Particulars of Offence

MOHAMMED RIZWAN s/o RAM ANUGH MAHARAJ on the 7th day of August, 2008 at Waila Feeder Road, Nausori in the Central Division, with intent to defraud, obtained 11 ducks valued at $330.00 from SURUJ KUMAR d/o RAM SUNDAR and issued her with a Bank of Baroda deposit slip by falsely pretending that it was a cheque leaf.

3. In Nausori Criminal Case No. 134/08, he first appeared on 11th September 2008. He waived his right to counsel. This is not unusual for someone who had 23 previous convictions, of like offences. The charge was read and explained to him. He said, he understood the same, and pleaded guilty to the offence. The prosecutor read the summary of facts. He agreed with it. He was found guilty as charged and convicted accordingly. He presented his plea in mitigation on 17th September 2008. The learned Resident Magistrate, after taking into account the aggravating and mitigating factors, sentenced the accused to 3 years imprisonment on 22nd September 2008. He gave him 28 days to appeal.

4. In Nausori Criminal Case No. 471/08, the accused first appeared in court on 11th September 2008. The accused waived his right to counsel. The charge was read and explained to him. He said he understood the charges, and pleaded guilty to the same. The summary of facts was presented by the prosecution, and he agreed with the same. He was found guilty and convicted as charged. He delivered his verbal plea in mitigation on 17th September 2008, and the learned Resident Magistrate delivered a written sentence on 22nd September 2008. For the five counts, the learned Resident Magistrate sentenced him to 3 years imprisonment, on each count, concurrent to each other. However, he made the 3 years prison sentence in count No. 2 consecutive to the sentence in count No. 1, making a total sentence of 6 years imprisonment, on all the five counts. This sentence was concurrent to the sentence in Nausori Criminal Case No. 134/08. He had 28 days to appeal.

5. On 7th April 2010, the accused advanced nine grounds of appeal. When closely examined, the nine grounds could be distilled into one, that is, the 6 years prison sentence was harsh and excessive. The accused did not appeal against conviction, but I will treat this case as a late appeal against conviction also.

6. I have carefully perused the court record to find out whether or not the learned Resident Magistrate erred in convicting and sentencing the appellant. I have found nothing wrong with the conviction and sentence. The learned Resident Magistrate followed the proper procedures in convicting and sentencing the appellant. He waived his right to counsel. He is an experienced criminal litigant with 23 previous convictions, of like offences. He pleaded guilty to the charges. He admitted the prosecution's summary of facts. He was rightly found guilty and convicted as charged. He hasn't learnt his lessons from his previous convictions. He continually preys on unsuspecting complainants. His 6 years imprisonment was not harsh and excessive. In fact, I'm tempted to increase the same, but I will respect the learned Resident Magistrate's position.

7. Application for leave to appeal out of time is declined. No good cause was shown by the appellant.

Salesi Temo
ACTING JUDGE

AT Suva
6th August 2010