Lata v State [2012] FJHC 1300; HAM011.2012 (28 August 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO: HAM 011/2012

BETWEEN:

KAMAL LATA
APPELLANT

AND:

STATE
RESPONDENT

COUNSEL: Appellant in Person
Mr M Vosawale for the Respondent/State

Date of Hearing: 14th day of August, 2012
Date of Judgment: 28th day of August, 2012

JUDGMENT

01. KAMAL LATA (hereinafter "the appellant") in four separate proceedings (cf 237/09,238/09,239/09,1183/09)was charged for Obtaining Money by False Pretence contrary to section 309(a) of the Penal Code, Cap. 17. First three proceedings were filed at Suva Magistrate Court on 20th February, 2009, while the fourth proceeding was filed on 21st September, 2009.

02. The particulars of offences were:

"KAMAL LATA on the 30tht day of December 2008 at Knolly Street, Suva in the Central Division, with intent to defraud, obtained $2700.00 cash from PUSHPA WATI by false pretending that she was in a position to arrange the residence visa to New Zealand for the said PUSHPA WATI".

"KAMAL LATA on the 26th day of January, 2009 at Knolly Street, Suva in the Central Division, with intent to defraud, obtained $3300.00 cash from RAKESH KUMAR CHANDRA VADAN by false pretending that she was in a position to arrange the residence visa to New Zealand for the said RAKESH KUMAR CHANDRA VADAN".

"KAMAL LATA on the 26th day of January, 2009 at Knolly Street, Suva in the Central Division, with intent to defraud, obtained $1700.00 cash from JAYESH KUMAR by false pretending that she was in a position to arrange the residence visa to New Zealand for the said JAYESH KUMAR".

"KAMAL LATA on the 23rd day June, 2009 at Knolly Street, Suva in the Central Division, with intent to defraud, obtained $3300.00 cash from SAMUEL DINESH DAVID by false pretending that she was in a position to arrange visa to the mentioned SAMUEL DINESH DAVID and his family to travel to New Zealand"

03. On the 31st day of July 2010 the appellant pleaded guilty to the case No: 237/2009 and pleaded guilty to all other cases i.e. 238/2009, 239/2009 and 1183/2009 on 6th August, 2010 and was convicted accordingly.

04. On 13/12/2010, the Appellant was sentenced to three years imprisonment with a two year non-parole period on first three matters and the Appellant received the similar sentence on 15th day of December, 2010 on the fourth matter.

05. Being aggrieved, the appellant has appealed against the sentence on the following grounds:

1. That the sentence imposed on her by learned magistrate was both harsh and excessive.
   
2. That she was remorse and the affirmations were expressed by her Legal Aid Counsel.
   
3. That her guilty plea was voluntarily taken and free from influence.
   
4. That she had always intended to plead guilty and anticipate a much earlier date of plea to be taken, save the lengthy adjournment.
   
5. That she was on the day of sentencing being hospitalized for 26 days and further one week complete bed rest.
   
6. That she was willing to apply progressive approach and enter into restitution, her family was standing by for the restitution and the learned magistrate failed to acknowledge the gesture in open court and consequently, in his sentencing, hence erred in law.
   
7. That she has spent a period of 09 months in remand custody from 19th September 2009 to 7th June 2010, which the learned magistrate failed to acknowledge despite being submitted to court for mitigation, hence erred in law.
   
8. That in one occasion her sureties were questioned by learned magistrate in court on what rehabilitation programmes I was undertaken and/or engaged.
   
9. That the learned Magistrate, failed to graduate his sentence matrix when he added an extreme 3 years to the selected 2 years starting point reaching up to 5 years which is by far outside the accepted tariff for the charged offence and then proceeded to deduct 2 years for the mitigating factors, to conveniently arrive at the 3 years sentence imposed.
   

06. The general principle of sentencing under section 15(3) of the Sentencing and Penalties Decree No: 42 of 2009 States:

"As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentence of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this part"

07. The objectives of sentencing, as set-out in Section 4(1) of the Decree, are as follows:

1. To punish offenders to an extend and in a manner, which is just in all the circumstances;
2. To protect the community from offenders;
3. To deter offenders or other persons from committing offences of the same or similar nature;
4. To establish conditions so that rehabilitation of offenders may be promoted or facilitated;
5. To signify that the court and the community denounce the commission of such offences; or
6. Any combination of these purposes.
   

08. Section 26 (1) of the Sentencing & Penalties Decree 2009 states:-

"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 satisfied that it is appropriate to do so in the circumstances"

09. The Learned Magistrate, after considering the aggravating factors and mitigation submissions has imposed 03 years imprisonment with non-parole period of two years.

10. Justice Goundar in Arun v State (2009) FJHC 231, HAA 052.2008 HAA053.2008, HAA054.2008, (23 October 2009) found that the tariff for fraud offences including obtaining money by false pretence is 18 months to 3 years imprisonment. It was held that the tariff for the offence obtaining goods by false pretence is 18 months to 4 years, (Mohamed Rizwan v State (2008, HAA 012.085 Ruling 18 April 2008) that 2 years imprisonment term was within the tariff. The tariff for breach of trust sentences ranges from 18 months to 3 ½ years imprisonment. (State v Bole, High Court of Fiji Criminal Case No: 38.2005(4th October 2005).

11. The main issue in this Appeal is whether the learned magistrate considered the remand period of the Appellant whilst sentencing the same. Upon perusal of the sentencing of learned magistrate the Appellant's remand period 08 months and 17 days was not taken in to consideration. Hence this ground of Appeal does have merit to this extent.

12. Justice Turner in Michael Towers v R (1987) 9 Cr.App.R (S) stated:

"This shows that a period spent in custody for an offence taken into consideration is relevant to the question of sentence for the offence being expressly dealt with. Since in the present case it was not taken into consideration, the justice of the case requires that some reduction should be made. The actual period was only some 19 days; we think that as an act of mercy it would be appropriate, on the special facts of this case. to make a reduction of one month".

The authority of Ledua v State [2008] FJSC 31; CAV 0004.2007(17th October 2008) the Supreme Court in paragraph 54 state:

"It is common ground that a sentencing judge is required to give due allowance for time spent in custody pending trial when he or she comes to sentence following conviction. Here there is nothing in the remarks as to sentence to show that this was taken into account as a "mitigating" factor for downwards adjustment of the ten year starting point identified by the sentencing judge".

In the authority of Maharaj v State[2010] FJHC;HAA 048.2010(25th October 2010) Justice Goundar considered an appeal from the Magistrate's Court whereby a ground of appeal was the failure of the learned magistrate to consider the Appellant's 16 days remand period to which his Lordship stated at paragraph 9:

"The only complaint that has merits is that the remand period 16 days should have been taken into account-reductions of sentence by one month will sufficient reflect the remand period".

In addressing appeal against sentence, the Fiji court of Appeal in: Prasad v State {2010] FJHC 12; AAU 0111.2007(8th April 2010) at paragraph 6 stated:

"As a matter of sentencing principle, any period that the offender spends in custody on remand should be taken into account when calculating the sentence. Although it is not necessary to make a precise calculation (Basa v the State [2006] FJHC 23:AAU0024.2005 (24th March, 2006)".

13. The Appellant has served 2 years and 08 months, a sentence that is only 04 months less than her imposed sentence of 3 years. She has spent nearly 09 months in remand before she was sentenced.

14. The Appellant has served nearly three years and five months in respect of this case. She had served 05 months in excess to her original sentence imposed by the court. As she had already served her sentence I order she be released immediately from this case.

15. Appellant has 30 days to appeal.

P.Kumararatnam
JUDGE

At Suva
28/08/2012