Kiran v State [2011] FJHC 169; Criminal Case 423.2010 (17 March 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Case Number : Miscellaneous Case Number : 7 of 2011
(Magistrates Court Criminal Case Number: 432 of 2010)

BETWEEN:

PUSPA KIRAN
Applicant

AND:

THE STATE
Respondent

Appearances: Mr. Amrit Sen for the Applicant.
Mr. S. Qica for the State.
Date / Place of Hearing: Wednesday, 16th March, 2011 at Labasa.
Date / Place of Judgment: Thursday, 17th March, 2011 at Labasa.
Judgment of: The Hon. Justice Anjala Wati.

RULING
(On Bail Pending Appeal)

The Application

1. The applicant has made an application by a motion and an affidavit filed on the 7th day of March, 2011 seeking bail pending appeal.
   
2. The application is opposed by the State.
   

The Grounds in Support

3. The affidavit in support outlines the grounds for bail pending appeal. The contention is that the convict was charged for obtaining money by false pretence. She is 37 years of age. She is married and has one child aged 8 years. She is pregnant and is due to deliver on the 28th day of March, 2011 (by the time the matter was heard, the applicant had already delivered a female child). She has no previous conviction. She pleaded guilty, as the complainant had approached her and she had made arrangements to pay him the amount which was taken by her. This arrangement was communicated to the Resident Magistrate. The Resident Magistrate did not take into account her remorse which was a strong mitigating factor and proceeded to sentence her for 16 months imprisonment and also ordered that she must not be granted parole until she has served 12 months of imprisonment. She has filed her appeal against the sentence on the 10th day of March, 2011. By the time the appeal is heard she would have had spent considerable amount of the term she is imposed upon. The sentence is harsh and excessive and she must be let out on bail pending appeal.
   

The Submissions

4. In his succinct submissions, Mr. Sen stated that he does not know how many months it will take for the appeal to be heard as no record has been placed before the court yet. The chances are that the appeal may not be heard anytime soon and the applicant would have served a considerable sentence by the time the appeal is heard. He further stated that circumstances similar to the applicant have always attracted suspended sentences and the sentence in this case should have been suspended. On the hearing date she told the Learned Magistrate that she had reconciled and his worship indicated that he would not take that into consideration. It was submitted that reconciliation and restitution are always considered as a mitigating factors and this was erroneously not taken into account.
   
5. Mr. Qica on behalf of the state submitted that the accused may have an arguable case but not an exceptional one with every chance of success. The application must be refused.
   

The Law

6. The relevant legislation which guides applications of this nature is the Bail Act 2002.
   
7. The applicant has been convicted and imposed with a custodial sentence and as such she is not entitled to bail as of right. The presumption of being granted bail as of right has been displaced upon her conviction: S. 3 (4) (b) of the Bail Act 2002.
   
8. Section 17 (3) of the Bail Act 2002 outlines the factors which the court must take into account when considering an application for bail pending appeal against conviction or sentence. The factors that the court must look at are:-
   
   • (a) The likelihood of success in the appeal; s. 17 (3) (a) of the Bail Act 2002.
   • (b) The likely time before the appeal hearing; s. 17(3) (b) of the Bail Act 2002; and
   • (c) The proportion of the original sentence which will have been served by the applicant when the appeal is heard; s. 17(3) (c) of the Bail Act 2002.
     
9. The above factors are not exhaustive. In addition to the above statutory factors, the court usually considers exceptional circumstances as well, if such is submitted to the court. In considering whether exceptional circumstances do exist, the court can consider the applicant's character, personal circumstances and any other matters relevant: Ratu Jope Seniloli & others v. The State - Criminal Appeal Number AAU 0041/04S.
   
10. The statutory factors when considered with other matters, could amount in their totality to exceptional circumstances: Ratu Jope Seniloli & others v. The State Criminal Appeal Number AAU 0041/04S.
    
11. Due to the urgency of the matter I have only briefly discussed the relevant law. I turn to most important aspect of the judgment.
    

The Consideration

12. I propose to deal with this application for bail pending appeal in light of the factors mandated by the Bail Act and also in light of the additional factor of exceptional circumstances, as the same has been raised by counsel for the applicant.
    

The Likelihood of Success of Appeal
(s. 17 (3) (a))

13. The law is well settled when it comes to deciding the likelihood of success of an appeal. The courts in Fiji have indicated that there must be a very high likelihood of success in an appeal before bail will be granted. It is not sufficient that the appeal raises arguable points but the court has to decide that the appeal, on the face of it, has every chance of success. I remind myself that at this stage I do not have to delve into the actual merits of the case.
    
14. The applicant was charged for 6 counts of obtaining money by false pretence. The complainant in all the counts is the same and one person. The gist of the charges are that the applicant, between a period of 1st February, 2009 to 30th November, 2009, with intent to defraud, obtained monies from one Ashwin Vikash Deo by pretending that she would secure a job for him at the Labasa Hospital, when such representation was false and the applicant having converted the money for her own use and benefit. The total amount of monies involved was $1500.00.
    
15. The applicant does not challenge the conviction as the same was entered upon an unequivocal guilty plea. Only the sentence is challenged to be harsh and excessive on the grounds stated in the petition which I summarize as follows:-
    
    1. The sentence should have been suspended in light of the strong mitigating factors.
    2. There was failure by the Magistrate to consider that the appellant was ready and willing to compensate the complainant of the money she had deprived him off.
    3. There was failure to correctly apply the principles of sentencing and failure to correctly apply the authorities used to support the sentencing remarks.
    4. There was failure to take into consideration the mitigating factors in that the accused was a first offender, has an 8 year child, and was 8 months pregnant.
       
16. His worship in his sentencing remarks identified the personal circumstances of the offender, the aggravating and the mitigating factors. He identified the accused person's personal circumstances in that she was 30 years of age, married with a child and 8 months pregnant. She was a Kava dealer and earned about $70.00 a week. The mitigating factors identified were the guilty plea after the initial plea of not guilty and that the accused was a first offender. The aggravating features were identified to be the preplanning of the offence, the time period within which the offences were committed, the financial gain from the monies used, the fact that the complainant had to borrow on two instances to give money to the applicant and the fact that the complainant never recovered any money from the applicant
    
17. His worship correctly identified the maximum penalty for offences of this nature. He stated that the offence carried a maximum term of 5 years imprisonment. Indeed that is indisputably correct. This makes the offence in itself a serious offence under the Bail Act 2002: S. 2 of the Bail Act 2002.
    
18. His worship used the case of State v. Jona Saukilagi -Criminal Case No. HAC 21 of 2004S to identify the tariff for the offence. His worship stated that the tariff is between 18 months to 3 years imprisonment. Indeed the authority does state the starting point to be as stated by his worship.
    
19. In an earlier judgment of Vinod Prasad v. The State - Criminal Appeal No. HAA 0029 of 2002S it was said that the "the tariff for obtaining money by false pretence appears to range from 18 months imprisonment to 2 years imprisonment."
    
20. In the case of Setareki Vakayadra v. The State- Criminal Appeal Case Number HAA 0099 of 2002S, it was stated that the "tariff appears to be 18 months to 2 years".
    
21. His worship has used the latest judgment to identify the starting point and I do not think he erred at this stage.
    
22. His worship picked up a starting point of 24 months which is within the tariff of the offence. What may be arguable is whether the starting point should have been lower than that picked, in light of the fact that the accused was a first offender.
    
23. His worship added 8 months for the aggravating factor which he identified as stated above. His worship gave considerable discount of 8 months for guilty plea and 8 months for other factors being the accused persons "personal circumstances and mitigating factors". I have identified the personal circumstances and the mitigating factors which were considered. His worship did consider the fact that the accused was 30 years old, married with a child and 8 months pregnant, a kava dealer earning a minimal wage of $70.00 a week and the fact that she was a first offender. His worship is not bound to state what discount he is giving for each mitigating factor. It is sufficient that he considers all of them and gives a global discount for the factors. His worship arrived, finally, at a sentence of 16 months. The sentence obviously is below the tariff. Ground 4 of the appeal therefore does not demonstrate a high likelihood of success at this stage.
    
24. Mr. Sen in ground 1 of his appeal states that the sentence should have been suspended given the strong mitigating factors. From the judgment I cannot conclusively say that his worship did not consider the aspect of suspending the sentence. There is no mention of suspended sentence at all but his worship does say that "in imposing these sentences, I have borne in mind the need to protect the public, the need to deter the accused from committing offences of this nature in the future, and the need for the court and the community to denounce the commission of these type of offences". These remarks could well constitute consideration of suspended sentence after which his worship arrived at a verdict of custodial sentence. If not, then, at the most, ground 1 of the appeal is or becomes arguable.
    
25. His worship also fixed a term within which the accused cannot be released on parole. This indicates that his worship definitely was of the view that a custodial sentence was proper.
    
26. The second ground of appeal states that the applicant was ready and willing to pay the money to the complainant. To my mind, there was no payment made by the applicant at the time of sentencing and his worship identified that in his remarks. If any payments were made then definitely it would have been a factor to be considered. There were no attempts to pay any money. The only time there was any indication was when she was convicted as charged. She then according to the records stated that "I am willing to pay the victim in installments. I can pay $10.00 per month. After delivery, I can pay more." Statements of this nature are often taken as made to avoid a custodial sentence. The important issue is that no monies were paid at the time of the conviction. What is arguable is that the willingness to pay showed remorse and the remorse of the accused was a mitigating factor which was not taken into account. It then is for the appellate court to decide whether upon consideration of an additional mitigating factor, there would have a substantial change in the sentence that was passed. I reiterate, that this matter is only arguable and I am not convinced that it shows that there is high likelihood of success.
    
27. The third ground of appeal relates to his worship applying the principles of sentencing incorrectly and also incorrectly applying the authorities used by him to support the sentences. His worship used the authorities to identify the starting point and/or to justify final sentence that was passed. I will very briefly comment on this ground of appeal and see whether it demonstrates every chance of success. For this I have to briefly examine the authorities used to support the sentence.
    
28. The second authority that was cited by his worship was Setareki Vakayadra v. State – Criminal Appeal Number HAA 0099 of 2002S. The relevant bit of the judgment that his worship used was that the appellate court had held that an 18 months imprisonment was on the lenient side for the accused /appellant. What may have been omitted from this judgment was the fact that there was another accused involved who was given a sentence of 18 months but his sentence was suspended as he was the first offender. The amount involved was $700.00. Mr. Sen has not raised any issues regarding this in his submission but may well raise the same in the appeal in that his worship failed to absolutely appreciate the judgment in its totality and to the extent applicable to the facts of the matter at hand. However this is only an issue that is arguable. It does not indicate that this issue will give him every chance of success.
    
29. The third authority of Vinod Prasad v. The State - Criminal Appeal No. HAA 0029 of 2002S was used to state that the 2 years sentence in that case was within the tariff and correct in principle. Comparatively, the circumstances of the offence in the case cited were grave both in terms of the amount involved and the previous conviction of the accused. Vinod Prasad indeed had 225 previous convictions, mostly for dishonesty. In the present case the accused was not sentenced to 2 years but 16 months, 8 months less than the accused in the case cited. The case was used to justify the final result and Mr. Sen has not shown me how this authority was incorrectly applied. I am left to speculate that Mr. Sen may raise the issue of disparity in the sentences.
    
30. The fourth case was Rustam Ali v. The State – Criminal Appeal Number HAA 68 of 1989. The accused in this case had defrauded the victim of the similar quantum of money. The difference is that he had 5 previous convictions and he was convicted upon a trial and not on his guilty plea. The final sentence was two years which was held on an appeal to be the proper sentence. Again, in the matter at hand the current accused has received a lesser term. Her sentence is well below the tariff while the accused Rustam Ali was sentenced within the tariff. I do not again see how this authority was misapplied. Nothing has been pointed out as stated in the ground of appeal to say that the same is arguable.
    
31. The final authority used by his worship was that of Steven Rajendra Kumar v. State Criminal Appeal Number HAA 039 of 2001S. The accused was sentenced to 3 years imprisonment and this was upheld on appeal. The amount involved in this matter was high and the accused had previous convictions. In any event the sentence for the current accused is 20 months less. I was not shown how this case was misapplied.
    
32. I have briefly looked at all the grounds of appeal in light of the submissions, and in my judgment, the stringent test, that the appeal on the face of it, demonstrates every chance of success, has not been established.
    
33. This takes me to the second factor.
    

The likely time before the appeal is heard
(S. 17 (3) (b))

34. Mr. Sen's concern is the delay in the preparation of the court records which he states will lead to this appeal being substantially delayed. The magistrate's minutes contains only 7 pages with big bold handwriting which could be typed in an hour's time. The rest of the documents only need photocopying for compilation of the records. I do not see any reason why the records cannot be complied in a few days time. I appreciate that this is not the only record that needs to be attended to but it also is not a massive record that cannot be prepared simultaneously with other records or with assistance of any other officer. I further do not accept that this appeal will take months to be heard. The next criminal session is due to start after 24 days time, that is, after 3 weeks, and on the 11th day of April, 2011. I propose to list this appeal on the first of the next criminal session for hearing with strict directions on records to be prepared and furnished to counsels.
    
35. In the next criminal session the parties must come prepared for hearing of the appeal. However there may be a short adjournment within the session to find a suitable time if the sittings judges' diary is strenuously booked on 11th April. Matters of this nature do not usually take long and I do not think there would be any reluctance to have this case heard.
    

Proportion of the sentence that would be served
(S. 17 (3) (c))

36. The applicant was sentenced on 4th March, 2011. By the time the appeal is heard she would have served only 38 days which is 1 month 8 days out of the 16 months imprisonment. She would have only served 1/16 of her sentence. If she is to be paroled after 12 months, she would still have served only 1/12 of her sentence. By any calculation, I do not find that her serving the said 38 days would offend the principles of justice.
    

The exceptional circumstances
(Additional factor)

37. It has been submitted that the applicant has a new born female child and the comfort is being out of prison with the family members because only a woman can understand the grave need of the assistance of the family members.
    
38. A letter from Divisional Hospital indicates that the accused has given birth on 15th day of March, 2011 at 2153 hours. The new born is a female and was born healthy. The applicant was admitted for observation and was not able to attend the court.
    
39. The prison officer 71160 who is also a rehabilitation officer was in court. He informed the court, albeit not under oath, that after the verdict on bail pending appeal, if the results are not in favour of the applicant, she would be transported to women's prison in Suva where there is a special nursery for the child and the mother. Labasa does not have that facility. The child can be provided with the necessaries.
    
40. It would not be fair if I do not comment on the standard of the facilities for mothers with children. Suva has a special large separate room away from the other women prisoners where the mother and child are to be kept. The new born child will have access to a private baby cot and all the necessary toys. The facility is clean and hygienic for the baby and the child. It is very spacious and comfortable with separate washing and cloak room facilities. The access to utilities is greater than what a normal household could offer. The mother and child will not suffer any difficulties. I have been a visiting justice for over a period 6 months and I have inspected the facilities. I find is very convenient for a new born child and the mother. There will not be any detriment to the mother or the child's health in the existing arrangement. I do not think that the birth of child is an exceptional circumstance in this case to warrant a bail pending appeal.
    
41. For the above reasons, and on examination of all factors I do not find that the accused has made out a case for bail pending appeal.
    

Final Orders/Directions

42. The application for bail pending appeal is dismissed.
    
43. The court record must be prepared before the 11th day of April, 2011. The Deputy Registrar to supervise the preparation of the record and ensure that the same is ready by 11th April, 2011.
    
44. The matter is listed for hearing on the 11th day of April, 2011 before a judge of the criminal division. Parties must expect some changes on this day in that the matter may be re-fixed for hearing within the session if the date does not suit the presiding judge.
    
45. Orders and directions accordingly.
    

ANJALA WATI
Judge
17.03.2011
At Labasa