Hussein v State [2012] FJHC 1085; HAA006.2012 (16 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA 066 OF 2012

BETWEEN:

IRSHAD HUSSEIN
APPELLANT

AND:

THE STATE
RESPONDENT

Counsel: Mr. Chaudhry for Appellant
Ms. Prasad for Respondent

Date of Hearing: 26th April 2012
Date of Judgment: 16th May 2012

JUDGMENT

1. The Appellant Irshad Hussein was charged in the Magistrate's Court Suva, with one count of Obtaining Money By False Pretence contrary to section 318 of the Crimes Decree 2009 and one count of Conspiracy contrary to section 327 of the Crimes Decree.
   
2. On his own plea of guilty Appellant was convicted and sentenced to 4 years imprisonment on both counts.
   
3. The Appellant appeals against the conviction and sentence on the following grounds.
   

Grounds of appeal against the conviction

The Learned Magistrate erred in fact and in law in;

(i) Incorrectly assuming that the accused, who was

unrepresented, had understood the charge and

consequences of pleading guilty.

(ii) Not allowing the applicant sufficient time to seek legal

representation.

Grounds of appeal against sentence

(iii) Imposing a sentence that was harsh and unjust in the

circumstances; and

(iv) Considering factors, that were irrelevant and not

considering factors that were relevant in the conviction

and sentence of the Accused.

4. The facts of the case were that, the victim (PW1) read an advertisement in Fiji Times regarding an Australian male looking for an honest, nice lady for marriage. PW1's father called the contact number given in the advertisement and the co-accused answered the call pretending to be the uncle of the accused Irshad who wanted to get married. They met at a restaurant and agreed to get married. After few weeks co accused called PW1 to open up a bank account saying that they want $3000 to be paid to the embassy for the purpose of migration. On 10/02/2010 accused with another met PW1 at Australian Embassy, obtained a migration booklet paying $18.00. PW1 withdrew $3000.00 from ANZ bank and gave the co-accused in the bank. Thereafter PW1 and PW2 were dropped at McDonalds near USP and accused left in another taxi. No receipt was given to PW1 for the $3000 and she felt suspicious and reported to police. During investigation it was revealed that accused was not an Australian citizen.
   

Grounds of Appeal No. (i) and (ii).

5. Appellant pleaded guilty to charges on 15/02/2010. He was unrepresented.

On 16/02/2010 counsel Mr. Sing appearing for appellant informed court that the accused understands only very little English and moved to defer the plea, which was allowed.

6. On 22/02/2010 when plea was taken appellant pleaded not guilty.
   
7. Thereafter on 20/07/2010 according to the court record, the accused pleaded guilty to both counts.
   
8. The contention of the appellant is that he was unrepresented, he could understand only very little English and therefore the learned Magistrate did not exercise the degree of vigilance as was expected of him in the present case. Further it is submitted that the summary of facts were amended the same day and the learned Magistrate could have deferred the plea.
   
9. It is not disputed that the appellant originally pleaded guilty on 15/02/2010 when he was unrepresented. However thereafter he withdrew his plea of guilty on 16/02/2010 when he was represented by a counsel. Therefore it is clear that he understood the gravity and the consequences of pleading guilty to the charges when he withdrew his earlier plea of guilty.
   
10. On 20/07/2010 the appellant on his own accord informed court that he wanted to plead guilty again. Therefore it is clear that he understood the gravity and the consequences. It is on record that the preferred language of the appellant was Hindi. In the absence of anything in contrary it is proper to infer that the applicant was explained the charges and the summary of facts in Hindi. Summary of facts was amended only to separately suit the appellant, as the co-accused pleaded not guilty to the charges.
    
11. Summary of facts was explained to Appellant and was admitted by him. Summary of facts included all the elements of the offences in counts 1 and 2.
    
12. Therefore I see no prejudice was caused to the accused and that his plea was unequivocal. Hence grounds no. (i) and (ii) are without merit.
    

Grounds No. (iii) and (iv)

13. It is submitted on behalf of the Appellant that the learned Magistrate has not considered the period of 1 year and 3 months delay in sentencing.
    
14. In paragraph 13 of the sentencing judgment the learned Magistrate has considered a discount for delay in sentencing.
    
15. It is also submitted that the learned Magistrate did not consider the payment of $400.00 by the accused as a mitigating factor. In paragraph 13 of the sentence the learned Magistrate gave good and sufficient reasons for not considering the payment as a mitigating factor. Restitution can be considered if it is made as a measure of true remorse, but not to buy the offender's way out of prison. (The State v Simeti Cakau HAA 125 of 2004S, Shameem J). In this case the appellant after pleading guilty and convicted agreed to pay half the amount obtained by him which comes to $1500. However he paid $400 to court which cannot be considered as remorse, but to buy his way out of prison. The learned Magistrate was correct when he did not consider that as a mitigating factor.
    
16. It is submitted by the counsel for Appellant that, gaining undue financial benefit is an element of offence and that the learned Magistrate incorrectly considered that as an aggravating factor.
    
17. In paragraph 6 of the sentencing judgment the learned Magistrate said;
    

"You not only gained undue financial benefit from the crime, but stole the dignity and family reputation of the complainant and his daughter."

The learned Magistrate increased the sentence by 3 years to reflect all the aggravating factors mentioned in his judgment. Even by excluding the financial gain, the increase of 3 years for the aggravating factors is justified.

18. Counsel for Appellant submitted that the sentence is harsh and excessive. He made submissions on the basis that the appellant was charged under Penal Code Cap 17. The date of offence is 10/02/2010, the day the appellant obtained the money by false pretence. Therefore the appellant was charged under Crimes Decree 2009.
    
19. Under the Penal Code the maximum punishment for the offence of Obtaining Money by False Pretence was 5 years. In the Crimes Decree 2009 it is 10 years. Therefore the tariff had to be revisited, which was done in case of The State v Atil Sharma Criminal Case No. HAC 122 of 2010L by Madigan J. The tariff now in terms of The State v Atil Sharma is 2 years to 5 years. Deciding on tariff Madigan J said in The State v Atil Sharma (supra);
    

"Now that the penalty under the new Crimes Decree has doubled, then obviously this tariff needs to be revisited. The tariff for obtaining a pecuniary advantage by deception should now be between 2 years and 5 years with 2 years being reserved for minor offences with little and spontaneous deception. The top end of the range will obviously be reserved for fraud of the most serious kind where a premeditated and well planned cynical operation is put in place."

20. This was a serious offence which was pre-planned and well calculated. To deceive the victim, the accused with the co-accused started by advertising on Fiji Times. The learned Magistrate has given good and sufficient reasons for taking 3 years as his starting point.
    
21. The maximum sentence for conspiracy to commit a felony in terms of the Penal Code Cap 17 was 7 years imprisonment. However maximum penalty in terms of section 327 of the Crimes Decree 2009 under which the appellant was charged is 10 years imprisonment. The tariff for the offence of Conspiracy to defraud obtaining gain should accordingly be adjusted. It will vary on the basis of the degree of the conspiracy and the gain. I propose the tariff to be between 2 – 5 years.
    
22. In this case in addition to the meeting of minds between the two accused persons to commit the offence of obtaining money by false pretence, the overt acts were committed to facilitate their conspiracy. The degree of conspiracy in this case is relatively higher. Considering the circumstances of this case I find that the learned Magistrate was correct when he picked 3 years as the starting point.
    
23. After considering the aggravating and mitigating factors the learned Magistrate finally came to a term of 4 years imprisonment. In paragraph 16 of the sentence he said:
    

"In view of aforementioned aggravating factors I increase 3 years to reach the period of 6 years. In considering your early guilty plea and other mitigating factors mentioned above, I reduce 2 years to reach the period of four years. I am mindful of the fact that a sentence which is above two years could not be suspended by this court in pursuant of section 26 (2)(b) of the Sentencing and Penalties Decree."

24. The learned Magistrate has reduced 2 years for mitigating factors. The mitigating factors include that the appellant is a 1st offender, 27 years old and that he pleaded guilty to the offence. I find that it is appropriate to give a discount of 2½ years instead of 2 years for the mitigating factors. Therefore I set aside the sentence of 4 years imprisonment and substitute a sentence of 3½ years imprisonment.
    
25. Therefore the final sentence is 3½ years imprisonment with a non parole period of 2½ years.
    
26. Appeal against the conviction is dismissed.
    
27. Appeal against the sentence is allowed to the above extent.
    

Priyantha Fernando
Judge
16/05/2012