IN THE HIGH COURT OF FIJI
AT SUVA
[APPELLATE JURISDICTION]
CRIMINAL APPEAL NO. HAA 013 OF 2021

EDWIN KRISHNA REDDY

V

STATE

Counsel: Appellant in person
                              Ms S Shameem for the State

Date of Hearing: 02 February 2022
Date of Judgment:	04 February 2022

JUDGMENT

[1]	The appellant was charged with the offence of obtaining financial advantage by deception contrary to section 318 of the Crimes Act. After numerous adjournments, he waived his right to counsel and pleaded guilty to the charge in the Magistrates’ Court at Suva. 

[2]	On 7 May 2021, the learned magistrate sentenced the appellant to 28 months imprisonment with a non-parole period of 22 months. 

[3]	This is an appeal against both conviction and sentence. Although the grounds of appeal are vague, the appellant is challenging his conviction on the basis that the facts does not support the offence and that he was not given an opportunity to repay the complainant the money he received from her for electrical work. 

[4]	Section 318 of the Crimes Act defines the offence of obtaining a financial advantage by deception as follows:

A person commits a summary offence if he or she, by a deception, dishonestly obtains a financial advantage from another person. Penalty — Imprisonment for 10 years.

[5]	The charge was framed as follows: 

Statement of Offence
Obtaining Financial Advantage by Deception: Contrary to Section 318 of the Crimes Act.

Particulars of Offence
Edwin Krishna Reddy on the 20th day of June, 2019, at Nabua in the Central Division dishonestly obtained $10,000.00 cash, the property of Sangeeta Reddy Brijman, with the intention of permanently depriving Sangeeta Reddy Brijman. 

[6]	The statement of the offence stated that the offence was obtaining financial advantage by deception but the particulars did not disclose what the deception was. Instead the particulars disclosed that the appellant dishonestly obtained cash with the intention of permanently depriving. 

[7]	The offence under section 318 of the Crimes Act does not require proof of an intention to permanently deprive the complainant of the property. 

[8]	In Chute v State [2016] FJHC 1114; HAA015.2016 (8 December 2016), Perera J explained the elements of the offence in detail as follows:

27.	In order to prove the offence under section 318 of the Crimes Decree, the prosecution should prove the following elements;
a.	the accused;
b.	dishonestly obtained;
c.	a financial advantage;
d.	by deception.

28.	Black’s law dictionary (6th edition) provides the following definition to the word ‘dishonesty’;
“Disposition to lie, cheat, deceive, or de- fraud; untrustworthiness; lack of integrity. Lack of honesty, probity or integrity in principle; lack of fairness and straightforwardness; disposition to defraud, deceive or betray.”

29.	The term ‘dishonest’ is defined under section 290 and section 348 of the Crimes Decree. Both sections provides the same definition which is in line with the dictum in R v Ghosh [1982] 3 WLR 110. However, section 290 limits the application of the definition provided in the said section to Part 16 of the Crimes Decree and the definition provided under section 348 is only for Division 7 of Part 17. The offence of obtaining financial advantage by deception is listed under Division 2 of Part 17 of the Crimes Decree.

30.	The definition provided in the Crimes Decree for the term ‘dishonest’ is as follows;
“... dishonest means —
(a) dishonest according to the standards of ordinary people; and
(b) known by the defendant to be dishonest according to the standards of ordinary people.”

31.	I am of the view that dishonesty under section 318 should also be determined in line with the above definition.

32.	In the case of Duncan v Independent Commission Against Corruption [2016] NSWCA 143 (22 June 2016) the court had explained the term ‘financial advantage’ as follows;
“Financial advantage is not exhaustively defined in the Crimes Act and it is perhaps easier to identify than define. However, it does include retaining a financial advantage: s 192D(1)(c). In Coelho v Durbin (Supreme Court (NSW), Badgery-Parker J, 29 March 1993, unrep) Badgery-Parker J described as the essence of the concept of financial advantage that the person alleged to have obtained such an advantage has obtained a benefit which can be valued in terms of money.”[Emphasis added]

33.	Section 316 of the Crimes Decree provides a definition for the word ‘deception’. However, the said definition does not clearly explain what a ‘deception’ is. In Blackstone’s Criminal Practice 2007 at page 402 it is stated thus;
“The best known judicial definition of deception is that of Buckley J in Re London and Globe Finance Corporation Ltd [1903] 1 Ch 728 at p.732:
To deceive is ....to induce a man to believe that a thing is true which is false.
This was quoted with approval in DPP v Ray [1974] AC 370 and is consistent with the normal dictionary meaning of the term, ...”

34.	The following definition is provided for the term ‘deception’ under section 316 of the Crimes Decree;
"deception" means an intentional or reckless deception, whether by words or other conduct, and whether as to fact or as to law, and includes —
(a) 	a deception as to the intentions of the person using the deception or any other person; and
(b) 	conduct by a person that causes a computer, a machine or an electronic device to make a response that the person is not authorized to cause it to do.

35.	It is necessary for the prosecution to prove that the deception operated in the mind of the person who is alleged to have been deceived. I am of the view that deception under section 318 of the Crimes Decree should be a deception as to existing facts or law and not a deception as to the future. With regard to deception as to the future, Blackstone’s Criminal Practice 2007 states thus;
“For a deception to be an offence under the Theft Acts 1968 or 1978, it must be a deception as to existing facts, or as to law. A representation that something will happen in the future will not suffice. It therefore, will not do to argue that, when one person issues a worthless cheque to another, he has deceived the other into thinking that it will be honoured. For similar reasons, if a person falsely promises to perform a service for someone in the future, it cannot be argued that the person to whom the promise was made has been deceived into thinking that the service will be performed. There may indeed have been a criminal deception, but in either case, the deception must be expressed in terms of present fact.”

[9]	The facts tendered by the prosecution in support of the charge disclosed that the appellant was an electrician and that the complainant engaged his services to carry out some electrical work at her property. On 20 June 2019, the complainant gave the appellant a cheque in the sum of $10,000.00 when he informed her that he needed the money to buy poles and to carry out the trenching work. When the appellant did not carry out the work, the complainant reported him to the police. 

[10]	In his caution interview, the appellant admitted receiving $10,000.00 for trenching work and that he did not carry out any trenching work after he received the payment. The appellant said that he used the $10,000.00 for his own benefit. 

[11]	In mitigation, the appellant said that he was 37 years old and was a single father of a 9 year old child. He worked as an electrical estimator and earned about $400.00 a week. 
[12]	The learned magistrate found that the appellant’s guilty plea was unequivocal and convicted him. 

[13]	The facts disclosed that the complainant engaged the appellant to carry out electrical work. There is no suggestion that the Accused made any false representation regarding his qualification to carry out the work. The complainant gave the appellant $10,000 when he informed her that he needed the money to buy poles and to carry out the trenching work. 

[14]	The real issue is whether the representation to buy poles and to carry out the trenching work was a representation of an existing fact which was false, or a contractual promise to perform a service in future. If it is the latter, then it cannot be argued that the person to whom the promise was made has been deceived into thinking that the service will be performed in future. 

[15]	However, in State v Singh [2007] FJCA 46; AAU0097.2005S (25 June 2007) the Court of Appeal observed that the law has, in many jurisdictions, been modified to try and encompass representations of future fact.

[16]	In the past, the offences of false pretences were legislated under the Penal Code.  Section 308 of the Penal Code defined false pretence as ‘any representation made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false, or does not believe to be true’. Representations of future fact were not included in the definition. 

[17]	The offences of false pretences were redefined under the Crimes Act that came into effect in 2009. The offences are either called obtaining property by deception (s 317) or obtaining a financial advantage by deception (s 318). The use of deception to obtain property or financial advantage is the common element of both offences. 

[18]	The statutory definition of deception provided by section 316 of the Crimes Act includes an intentional or reckless deception by words or other conduct, including the intentions of the person using the deception.  In other words, if an accused promises to perform a service in return for a payment of money from the complainant, and at the time he makes the promise, he has no intention to carry out his promise, it could be argued that the accused is either intentionally or recklessly deceptive in making the promise in order to obtain a property or a financial advantage from the complainant. 

[19]	In the present case, the facts disclosed that the appellant either intentionally or recklessly made a promise to the complainant to purchase poles and to carry out trenching work. After obtaining the financial advantage (payment in the sum of $10,000.00) he did not purchase any poles or carry out any trenching work. Instead he used the money for his own personal benefit. His conduct was not only deceptive, but also dishonest according to the standards of ordinary people and that appellant knew his conduct was dishonest according to the standards of ordinary people. He obtained the money deceptively and then used it for his own personal benefit, with no intention whatsoever to carry out the promise he made to the complainant. The promise itself was false and had the complainant known that the promise was false, she would not have given the money to the appellant. 

[20]	The charge was defective but the appellant was not prejudiced. I find that the appellant’s guilty plea to the offence of obtaining a financial advantage by deception was unequivocal and that he was properly convicted of the offence. 

[21]	In sentencing the appellant, the learned magistrate took into account that the offence carried a maximum penalty of 10 years imprisonment and that the applicable tariff was between 2-5 years imprisonment as set in State v Sharma [2010] FJHC 623; HAC122.2010L (7 October 2010). He considered pre-planning, risking EFL’s reputation and breach of trust as the aggravating factors. He said that the appellant’s previous convictions were spent and irrelevant. He picked 30 months as his starting point, added 18 months for the aggravating factors and reduced 20 months for the guilty plea and other mitigating factors. He arrived at a term of 28 months but since the appellant had served 1 month and 2 weeks in custody on remand he ordered that the appellant serve 26 months and 2 weeks imprisonment with a non-parole period of 20 months and 2 weeks. 

[22]	In enhancing the sentence by 18 months to reflect the aggravating factors the learned magistrate considered and explained the factors as follows:
	
The offence is committed with pre-planning as apparent from the summary of facts. You have exploited your employer and has blatantly breached her trust. You have further used the good name of another organization to deceive the complainant claiming that Energy Fiji Limited has approved a transformer at her business premises. I find these factors to aggravate the offending and as such increase your sentence by a further 18 months to reflect on the aggravation. Now your sentence is 48 months. 

[23]	The facts did not suggest that the appellant was an employee of the complainant. The appellant was an independent contractor that the complainant engaged to carry out electric work. In the course of that engagement the appellant deceptively obtained a financial advantage from the complainant. This was not a case of breach of trust of an employer by an employee. Nor was there was any planning involved to commit the offence.  The only aggravating factor was that the amount of $10,000.00 was a significant amount and that the complainant lost this money. 

[24]	Since the final sentence was more than 2 years imprisonment, the learned magistrate was required by law to fix a non-parole period (see, section 18 of the Sentencing and Penalties Act).  But the term that was fixed in this case was close to the head sentence. 

[25]	In Maturino Raogo v The State Criminal Appeal CAV003 of 2010 (19th August 2010) the Supreme Court explained the purpose behind the non-parole order at paragraph [16] as follows:

“The legislature’s intention was to provide for those who committed a very serious offence or repeat serious offences. They could be kept in prison for a minimum term and during this period they would not be able to commit further crimes. The expression used by judges implementing this power was “warehousing”. If a repeat serious offender was “warehoused” in prison, then during the period of such imprisonment he would not be able to commit severe serious offences to the detriment of members of the public.”

[26]	The court has a duty to provide reasons if it decides to fix the non-parole period close to the head sentence. In Timo v State [2019] FJSC 22; CAV0022.2018 (30 August 2019), the Supreme Court said:

Judicial officers need to justify the imposition of non-parole periods close to the head sentence, or indeed for the decision not to impose one at all, for section 18(1) speaks in terms of “must fix a period...” (at para [11] per Gates CJ).

[27]	Further, the Supreme Court said:

A serious repeat offender who is not responding to rehabilitation is a justifiable concern to the normal law-abiding public. Such persons may find the court will insist on him or her being kept incarcerated for a term close to the head sentence. The non-parole order must keep within the limits provided by section 18(4). Such orders must be accompanied by brief reasons stating the purpose of what is in effect a harsher term (at para [13] per Gates CJ)

[28]	The appellant had two previous convictions which were more than 10 years old.  Under the Rehabilitation of Offenders (Irrelevant Convictions) Act 1997 a conviction that is more than 10 years old is regarded as irrelevant, and that a person who has not offended for 10 years after his last recorded conviction is regarded to have been rehabilitated. 

[29]	The appellant is not a serious repeat offender. Certainly there is no justifiable concern that the offender is not responding to rehabilitation. There is no need for him to be ‘warehoused’ in order to protect the community from his anti-social behaviour.  It is clear that the learned magistrate made an error of principle when he fixed the non-parole period close to the head sentence that he had imposed on the appellant. 

[30]	I would set aside the sentence imposed in the Magistrates’ Court and substitute a sentence of 18 months imprisonment. The appellant has a good prospect of rehabilitation. I have decided not to fix a non-parole period. 

[31]	The appellant had spent 1 ½ months in custody pre-sentence and had served 6 months and 1 week in prison before he was granted bail pending appeal on 15 November 2021. 

[32]	I revoke bail and order that the appellant serve the remaining term of 12 months imprisonment effective from the date of this judgment. The purpose of the custodial sentence is to deter the appellant and others from dishonestly obtaining financial advantage from the public using deception. 

	Result
[33]	The appeal against conviction is dismissed.

[34]	The appeal against sentence is allowed. 

. …………………………………….
Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Director of Public Prosecutions for the State
Appellant in person