Sami v State [2020] FJHC 221; HAA 19 of 2019 (18 March 2020)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
[CRIMINAL JURISDICTION]

HIGH COURT CRIMINAL APPEAL CASE NO.: HAA 19 OF 2019

BETWEEN

SACHINDA NAND SAMI

Appellant

AND

STATE

Respondent

Counsel : The Appellant in person
Mr Niudamu For the State

Date of hearing : 18 November 2019
Date of Judgment : 18 March 2019

JUDGMENT

1. The appellant was charged with one count of obtaining financial advantage by deception contrary to section 318 of the Crimes Act, 2009.
   
2. The appellant pleaded guilty to the charge before the Magistrate’s Court, Sigatoka on 15 February 2019 and was convicted accordingly. On 20 March 2019 the appellant was sentenced to one year and eight months imprisonment.
   
3. Being aggrieved by the sentence the appellant filed a timely appeal on 05 April 2019. Later the appellant filed amended appeal grounds on 30 August 2019. Further he submitted additional grounds of appeal on 13 September 2019.
4. The appellant was unrepresented, and the following can be fathomed as his grounds of appeal against conviction and sentence;

Appeal against conviction

1. The guilty plea was equivocal
2. The learned Magistrate erred in law when he relied on charges which were vague, uncertain, bad for duplicity and unjust
3. The appellant was prejudiced by lack of legal representation

Appeal against sentence

1. The non-parole period imposed by the learned Magistrate is obnoxious to sentencing principles
2. The learned Magistrate erred in law by failing to give adequate and proper discount for the early plea
3. The learned Magistrate erred in law and in fact by picking a higher starting point of the tariff
4. The sentence imposed in manifestly harsh and excessive
5. The learned Magistrate took into account matters irrelevant and prejudicial to the appellant in arriving at the sentence
   

5. The charge for which the appellant is convicted reads as follows;

Statement of offence

Obtaining a financial advantage by deception contrary to section 318 of the Crimes Act 2009

Particulars of offence

Sachida Nand Sami on the 18^th day of January 2017 at Sigatoka in the Western Division, by a deception, dishonestly obtained from Mohammed Azim $ 280.00 cash, this being a financial advantage from the said Mohammed Azim.

6. It should be noted at the very outset that section 247 of the Criminal Procedure Act clearly stipulates that no appeal shall be allowed in the case of an accused person who has pleaded guilty, and who has been convicted on such plea by a Magistrates Court, except as to the extent, appropriateness or legality of the sentence.
   
7. In the present case the appellant is convicted on a guilty plea and therefore section 247 of the Criminal Procedure Act bars any appeal against the conviction. However, the main contention of the appellant is that the plea was not equivocal. If the plea was equivocal the remedy available to an aggrieved person who is convicted is to invoke revisionary jurisdiction of High Court pursuant to section 260 of the Criminal Procedure Act.
   
8. In Raisokula v State [2018] FJHC 148; HAA24.2017 (2 March 2018) Justice Perera discussed this position in detail as follows;

“In my opinion, the proper course of action according to the existing law for a person convicted by a magistrate court on an equivocal plea to seek redress is to invoke the revisionary jurisdiction of the high court under section 260 of the Criminal Procedure Act. Given the provisions of section 262(5) of the said act which reads “[w]here an appeal lies from any finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed” it is manifestly clear that a person convicted on a plea of guilty by the magistrate court whose appeal against conviction

9. In any event I have taken into account the fact that the appellant was unrepresented in the Magistrate’s Court and in the present case as well. As one of the grounds of appeal the appellant asserts that his plea was equivocal. In Tuilomaloma v State [2019] FJHC 851;09.A009.2019 (30 August 2019) the court decided to consider whether the revisionary jurisdiction should be invoked when the grounds of appeal suggested that the plea could be equivocal.
   <
10. The Appellant has stated that the learned Magistrate failed to enquire whether the appellant pleaded guilty due to any force, pressure of threat. I have perused the record of the Magistrate’s Court. The minutes of the learned Magistrate clearly indicates that on 15 February 2019 the following steps were followed by the learned Magistrate while recording the appellant’s guilty plea;

“Accused – I waive right to counsel and I am ready for plea

Preferred language – English

Charge read, explained and understood – Yes

Plea – Plead guilty on own freewill

Summary of facts read and understood – Yes

Admit – Yes

Previous convictions – 3 active

Accused – I confirm

Court – Convicted as charged”

11. The appellant had initially informed the learned Magistrate on 25 January 2019 that he will be taking a progressive approach in two of his files. After two adjournments the appellant pleaded guilty on 15 February 2019. In my opinion that is a clear indication that ample time and opportunity was available to the appellant to consider his decision to plead guilty. In any event it is very clear that the learned Magistrate followed the correct procedure before recording the plea of the appellant. The court record is the testimony that the learned Magistrate satisfied himself that the appellant pleaded guilty on his own freewill.
    
12. Further the learned Magistrate readout and explained the charge and the summary of facts to the appellant in his preferred language. I do not see any ambiguity in the charge or the summary of facts. The appellant was explained the right to counsel on 12 December 2018 and he had initially indicated to court that he wishes to apply for Legal Aid. But on the day the plea was taken the appellant had clearly informed that Court that he waives the right to counsel. The right to counsel is not an absolute right and in the present case the appellant has waived his right to counsel after he was clearly informed of his right to be defended by a counsel.
    
13. For the reasons I have discussed above I am of the view that the plea of the appellant is unequivocal. Therefore, I do not find any reason which justifies invoking revisionary jurisdiction to set aside the conviction entered by the learned Magistrate.
    
14. I will now deal with the appeal against the sentence. The instances where an appellate court could interfere with a sentence was discussed in Bae v State [1999] FJCA 21; AAU0015u.98s (26 February 1999) as follows;

“It is well established law that before this Court can disturb the sentence, the appellant must demonstrate that the Court below fell into error in exercising its sentencing discretion. If the trial judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some relevant consideration, then the Appellate Court may impose a different sentence. This error may be apparent from the reasons for sentence or it may be inferred from the length of the sentence itself (House v The King [1936] HCA 40;&#16hr(1936) 55 CLR 499).”

15. The maximum punishmnishment for obtaining financial advantage by deception is 10 years imprisonment and the tariff is 2 – 5 years [State v Liolevu [2018] FJHC 1195; HAA014.2018 (14 December 2018)].

16. Having considered the objective seriousness, early plea and mitigation the learned Magistrate imposed 2 years imprisonment on the appellant. Further the learned Magistrate generously deducted 4 months to reflect the remand period and arrived at a sentence of 1 year and 8 months imprisonment. Moreover, the learned Magistrate ordered the sentence to run concurrent to the sentence imposed in C/F 575/18.
    
17. Section 18(3) provides that if a court sentences an offender to be imprisoned for a term of less than 2 years but not less than one year, the court may fix a period during which the offender is not eligible to be released on parole. The learned magistrate fixed a non-parole period of 1 years and 2 months which is 6 months less than the period of imprisonment imposed on the appellant, which is allowed by the law.
    
18. In my opinion the sentence imposed on the appellant falls well within the range and it is not harsh or excessive. Although the appellant complains that the learned Magistrate took into account matters irrelevant and prejudicial to the appellant in arriving at the sentence, appellant failed to substantiate his claim. As it was pointed out by the Respondent the sentence is in fact a lenient one and I do not find any reason to disturb the sentence imposed by the learned Magistrate.
    
19. For the reasons discussed above the appeal is dismissed and I affirm the sentence imposed by the learned Magistrate.

Orders:- a) Appeal against the conviction and sentence is dismissed.

2. Sentence imposed in Sigatoka Magistrate’s Court Criminal case no 574 of 2018 is affirmed.
   

Rangajeeva Wimalasena
Actg. Judge

At Lautoka
18 March 2020

Solicitors: Appellant in Person
Office of the Director of Public Prosecution for the Respondent