Thoman v State [2011] FJHC 471; HAA022.2011 (17 August 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 022 OF 2011

BETWEEN:

LIONEL THOMAN
Appellant

AND:

STATE
Respondent

Appellant in Person
Ms S. Kiran for the State

Date of Hearing : 10 August 2011
Date of Judgment: 17 August 2011

JUDGMENT

[1] On the 21st March 2011, at the Magistrates' Court at Lautoka this appellant was convicted on his own plea of the following charge:

Statement of Offence

OBTAINING A FINANCIAL ADVANTAGE BY DECEPTION: Contrary to section 318 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

LIONEL THOMAN s/o George Thoman on the 4th day December, 2010 at Lautoka in the Western Division deceived ASKALL AKLESH SINGH s/o Ram Karan Singh by dishonestly obtaining $30.00 this being a financial advantage from the said ASKAAL AKLESH SINGH s/o Ram Karan Singh.

He was sentenced to a term of imprisonment of eighteen (18) months.

[2] The appellant now appeals against sentence on the following grounds:

(1) there was a huge delay in sentencing;

(2) the prosecution failed to proceed on time;

(3) the Magistrate denied the appellant's mitigating factors;

(4) insufficient discount was given for the guilty plea.

[3] The facts admitted by the appellant below are that on the 4th December 2010 the accused held himself out to be an employee of Vodafone Fiji and that he had a Nokia Brand mobile phone for sale at $100. This representation was made to a 17 year old male student. The student said he didn't have so much money and a price of $30 was then agreed. The youth went home to collect the money and brought it back. He then asked about the charger – the accused told him to wait while he got it, but he never returned. The phone was later found to be a toy. The accused admitted the offence after detection and interview.

[4] In a well researched and analytical sentence, the learned Magistrate took a starting point for the offence of 18 months', which is the bottom of the accepted range for fraud, the range being 18 months to three years. This leniency was afforded the appellant because of his age, family circumstances, and impoverished upbringing. The mitigating features were that:

(1) The money defrauded not high;
(2) Remorse and apology to the Court;
(3) Co-operation with the authorities.

The aggravating factors were said to be

(1) No restitution offered to the victim;
(2) Benefitting from the fruits of the crime.

[5] The Magistrate added six months to the sentence for the aggravating features, and reduced it by three months for the mitigating features. He further reduced the sentence by three months to reward the plea of guilty bringing the final total to 18 months imprisonment. After consideration, the Magistrate declined to suspend the sentence, the appellant having 21 previous convictions which are current including three for identical offences.

Analysis

[6] The appellant entered his plea of guilty at the very first opportunity on 21st March 2011. He was sentenced on 23 June 2011, three months later. The reason for the delay was not as the appellant says because the prosecution was delaying the case; it was because the Resident Magistrate was on leave. In any event three months was not an unduly long time and the appellant suffered no prejudice by the delay. He was not serving any other sentence at the time.

[7] The minimum point on the accepted tariff band was chosen by the Magistrate as a starting point to reflect his young age, his disadvantaged personal circumstances and his family commitments. He received another three months credit for his remorse and for the fact that the amount defrauded was not high – he then received three months discount for the guilty plea. An additional six months was added for the aggravating features.

[8] Benefitting from the fruits of crime can hardly be said to be an aggravating feature. Every offender benefits from his crime until apprehended. I agree with the appellant that the six months added for aggravating features was too long. Lack of restitution could perhaps be said to be aggravating and two months would be an appropriate addition to the starting point bringing the sentence to twenty months. The stated mitigating features are those which led to the Magistrate taking a lenient starting point and it is not proper for him to allow another three months for the same mitigation.

[9] The three months deduction for a very early guilty plea represents but 12 ½ % of the sentence arrived at, and once again I agree that it is inadequate. A deduction of one third or thereabouts would have been more fitting:

[10] I recast the sentence as follows:

• Starting point 18 months;
• Aggravating features add 2 months;
• No additional discount for mitigation;
• Discount for very early plea: 6 months;
• Total sentence is 14 months.
  

[11] The sentence of eighteen months is quashed and the appellant will serve a sentence of fourteen months.

Paul K. Madigan
JUDGE
At Lautoka
17 August 2011