Tuinamena v State [2020] FJHC 872; HAA031.2019S (21 October 2020)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL CASE NO. HAA 031 OF 2019S

BETWEEN : ILISAPECI TUINAMENA

APPELLANT

AND : THE STATE

RESPONDENT

Counsels : Ms. S. Fa for Appellant
Ms. E. Rice for Respondent
Hearing : 5 December, 2019.
Judgment : 21 October, 2020.

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JUDGMENT
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1. According to the Suva Magistrate Court record, the following charge was put to you, in the presence of your counsel, at Suva Magistrate Court, on 16 July 2019:
   

“Statement of Offence

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 (1) of the Crimes Decree Number 44 of 2009.

Particulars of Offence

ILISAPECI TUINAMENA between the 17^th day of July 2014 to 24^th day of July 2014 at Suva in the Central Division, by deception, dishonestly obtained $4,900.00 cash from ANU REKHA SHARMA but failed to return the money as promised to the said ANU REKHA SHARMA.”

2. The charge was read and explained to you, and you said you understood the same. You then pleaded guilty to the same. The summary of facts were read to you by the prosecutor.
   
3. Briefly the facts were as follows. The complainant was Ms. Anu Rekha Sharma. She was in 2014 46 years old and a school teacher at Rishikul Primary School. You were unemployed in 2014. Both you and the complainant were attending certain prayer meetings at the school on Sundays and the two of you became friendly with each other. This friendship developed to a stage where you sought a loan from the complainant to assist you in your attempt to get work in the United States of America. In July 2014, she loaned you a total of $4,900. You told her that once you got USA visa, you would return the money. You later got your visa, but you never repaid her. She complained to the police about your behavior.
   
4. You admitted the above facts. You were found guilty by the court, convicted as charged, and sentenced to 2 years 3 months imprisonment on 9 August 2019. You were not happy with the court’s decision. You filed your Petition of Appeal on 19 September 2019. It was out of time. You did not complain about your conviction. You only complained about your sentence. You advanced three grounds of appeal, but when the same are collectively analyzed, it can be seen that you are not happy with the way the court dealt with the issue of full restitution to the complainant. As a result, you are of the view that the 2 years 3 months imprisonment was harsh and excessive.
   
5. To find out whether or not your complaint was justified, I had read the full Magistrate Court record. I had also read the learned Chief Magistrate’s sentencing remarks. I had also read both parties written submission to the court. I have heard the parties’ verbal submissions. You started your 2 years 3 months imprisonment sentence on 9 August 2019. The High Court released you on bail pending the appeal on 13 December 2019. So, in a sense you had only served 4 months 4 days of your 2 years 3 months imprisonment sentence. Looking at the case in its proper overall context, in my view, it was wrong not to take into account the issue of full restitution to the complainant of the $4,900 she took from her, even if she was ordered by a court to repay the amount. Having said that, it was also in order for the appellant to be punished for having to put the complainant through all this trouble. Also, she first appeared in court on 22 December 2014 and kept the case going until 16 July 2019, when she pleaded guilty, a period of approximately 4 years 7 months. In a sense, she had wasted everyone’s time. In my view, she deserved the 4 months 4 days prison time she had already served. However, given your previous record of defrauding people, this leniency is a last for you. If you continue with your previous behavior of tricking people financially, what the Magistrate Court did for you in this case is a warning to you.
   
6. Given the above, I grant the appellant leave to appeal out of time and I allow the appellant’s appeal against the sentence. Her sentence of 2 years 3 months imprisonment dated 9 August 2019 is quashed, and the same is substituted with a sentence of 4 months 4 days from 9 August 2019 to 13 December 2019.

Salesi Temo

JUDGE

Solicitor for Appellant : Law Solution, Suva.
Solicitor for Respondent : Office of the Director of Public Prosecution, Suva.