Kiran v State [2011] FJHC 226; HAA009.2011 (19 April 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 009 OF 2011

BETWEEN:

PUSPA KIRAN
APPELLANT

AND:

STATE
RESPONDENT

Counsel: Mr. A Sen and Mr. Padayachi - for the Appellant
Mr. Qica - for the Respondent

Date of Hearing: 11.04.2011
Date of Judgment: 19.04.2011

JUDGMENT

1. The Accused Appellant was charged in the Magistrates Court on 6 counts of Obtaining Money by False Pretences which are punishable under Section 309(a) of the Penal Code (Cap. 17).

2. The Accused Appellant defended herself in the Magistrates Court and pleaded guilty to all 6 charges. After considering all, the Magistrate had convicted the Accused Appellant and sentenced to 16 months imprisonment on each count and ordered sentences to run concurrently, subject to a non parole period of 12 months imprisonment.

3. The Accused Appellant aggrieved with the sentence and preferred an appeal against the sentence. She had submitted following grounds of appeal.

1. That the learned Trial Magistrate erred in failing to suspend the sentence as there were strong mitigating factors.
2. That the Learned Magistrate erred in failing to consider that the appellant was ready and willing to compensate the complainant of the loss.

100. That the Learned Magistrate failed to correctly apply the principles of sentencing and incorrectly applied the authorities supported by him in his sentencing remarks.

4. That the Learned Magistrate erred in failing to take into consideration the mitigating factors namely the accused was a first offender and has an 8 year child and is eight months pregnant and also failed to consider the good behaviour of the appellant.
   

4. Before considering the grounds of appeal it will be appropriate to consider the conviction. The Accused Appellant was given sufficient time to retain her counsel. After explaining the right to have counsel by the Magistrate, the Accused Appellant had opted to defend herself.

5. According to the record of the Magistrate's Court, the Accused Appellant had understood the charges and pleaded guilty to all six counts. Considering the nature of the plea, this Court is convinced that the plea to be free from promise, threat and induced since the plea is unequivocal, this Court uphold the conviction.

6. The Accused Appellant is not contesting the conviction but the sentence. When the appeal was taken up, the Counsel for the Appellant submits that he is not contesting the quantum of sentence but he urge Court to suspend the same and the Appellant is willing to repay the money which she had obtained from the complainant.

7. The Accused Appellant had submitted the following grounds in the Court.

1. She is a first offender.
2. She had pleaded guilty and saved the time of Court.

100. At the time of the sentence she was 8 months pregnant.

4. Presently she is blessed with a baby girl, who was born on 15.03.2011.
5. She is unable to feed the infant in the Prison.
6. She had deposited the total money in Court which she had obtained from the complainant.
7. She invokes the power of the Court to grant her a suspended term.
8. She prays for an opportunity to be with her 8 year old child and the infant child who was born in the Prison.
9. She pleads mercy of the Court.
   

8. Considering the sentence, I find the Magistrate had considered the relevant law, and tariffs.

9. The trial Magistrate had considered the following factors as mitigating circumstance.

1. The Accused pleaded guilty.
2. 1st offender.
   

10. Considering the submissions, the Court finds the Magistrate had not considered some of the most important mitigating factors. Such as the Accused Appellant was pregnant at the time of sentencing, she was willing to repay the money which she had obtained and the situation of child birth.

11. The Accused Appellant had repaid the entire money which she had obtained by false pretence.

12. Considering all circumstances the Court uphold the conviction and vary the sentence as follows.

1. 16 months imprisonment on each count.
2. The above sentence to run concurrently.

100. Fine of $1500 in default 15 months imprisonment.
     

13. Section 26(1) of the Sentence and Penalties Decree states as follows:

"On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or part of the sentence, if it is appropriate to do so in the circumstances."

14. Considering section 26(1) of the Sentence and Penalties, this is a fit and proper case for this Court to act under the above section. The above 16 months imprisonment is suspended for 7 years. The nature of suspended sentence is explained to the Accused in open Court.

15. Appeal allowed partially.

........................................
S. Thurairaja
JUDGE

At Labasa
19 April 2011