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Pillay v The State [1995] FJHC 82; Haa0022j.95s (2 May 1995)

IN THE HIGH COURT OF FIJI
(SUVA)
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0022 OF 1995

BETWEEN:

SUBBA PILLAY
APPELLANT

AND:

STATE
RESPONDENT

Mr. Nagin for Appellant
Mr. Tuiqereqere for Respondent

JUDGMENT

The appellant appeals against both conviction and sentence on the following grounds:-

(i) That the Learned Trial Magistrate erred in law and in fact in requesting the complainant to file an Affidavit in answer to the mitigation made by Counsel for the Appellant;

(ii) That the Learned Magistrate erred in law and in fact in consulting the complainant's director as to what sentence should sentence should be imposed on the appellant and in fact imposed the sentence suggested by the Complainant's director;

(iii) That there has been a total miscarriage of justice in this case; and

(iv) That the sentence imposed is harsh and excessive and wrong in principle.

On the 6th of July, 1994 at Suva Magistrate's Court the appellant was convicted on his own plea of 3 counts of larceny by servant, contrary to Section 274 (a) (ii) of the Penal Code and was sentenced to eighteen months (18) imprisonment on first count, and three (3) months on each of the other two counts, the sentence to run consecutively, amounting to a total sentence of two (2) years imprisonment.

I will deal with this appeal on two main heads:-

(i) Appeal against Conviction;
and

(ii) Appeal against Sentence

Appeal against Conviction.

It is not too clear upon which of the four grounds the appellant appeals against conviction. However, in this case the appellant pleaded guilty to three counts of larceny by a servant. On that occasion he was represented by Mr Nagin who is also representing him in this appeal.

The record of the proceedings below shows that on 6th July, 1994 Mr David Collard, the Company's Director, was examined-in-chief. After the examination-in-chief there followed a brief adjournment. When the case resumed the appellant changed his plea to one of guilty on all three counts. On the 15th of July, 1994 with appellant's Counsel present, the appellant admitted the facts outlined by the prosecution. On 11th November, 1994 the accused was convicted on all three counts by the trial Magistrate.

It is clear from the record that at all relevant stages the appellant was represented by Counsel. Appellant had an interval of 9 days between the date of his plea to the outlining of the facts to reconsider his plea of guilty if he had wished. In my view appellant fully understood what he was pleading guilty to, and his plea of guilty was unambiguous and unequivocal and therefore he has no cause for complaint.

Consequently he has no right of appeal on this ground as Section 309(1) does not bestow him such right.

Section 309 (1) of the Criminal Procedure Code reads:-

"No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on such plea by a Magistrate Court, except as to the extent or legality of the Sentence."

There is no merit on this ground it is therefore dismissed.

Appeal against Sentence.

For convenience I will deal with grounds (i), (ii), (iii) and (iv) together.

It may be prudent to outline briefly the relevant facts pertaining to the above grounds in order to have a clear understanding of the arguments presented by Counsel for the appellants:-

(a) On 12th August, 1994 instead of sentencing the appellant the trial Magistrate ordered the Prosecution to file an Affidavit of the Complainant regarding the matters given in mitigation. The case was adjourned to 26th August, 1994.

(b) An affidavit was filed by David Collard, a director of the complainant on or about 26th August, 1994. The case was adjourned on 26th August 1994 to 15th September, 1994.

(c) On 15th September, 1994 the case was adjourned to 13th October, 1994 for sentencing also giving time to Appellant to file Affidavit in reply.

(d) On 11th October, 1994 Affidavit in reply filed in which Appellant made it clear that the obtaining of the Affidavit was not proper.

(e) On 13th October, 1994 case was adjourned further to 11th November 1994 for sentencing.

(f) On 11th November, 1994, the Magistrate asked David Collard as to what sentence should be given to the Appellant. The said David Collard replied to the effect that the minimum should be two (2) years imprisonment. The Magistrate subsequently sentenced the appellant to the total of two (2) years imprisonment.

In this case it is unfortunate that it took a long period of time before the appellant was finally sentenced by the Magistrate.

The trial Magistrate should have complied with Section 206 (2) as soon as possible, which reads:-

If the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there shall appear to it sufficient cause to the contrary.

The record shows that the delay in sentencing the accused was due to the fact that the Magistrate had wanted to hear from David Collard, the Managing Director of the complainant company by way of affidavit whether the plea in mitigation by Counsel that the theft was quasi-civil or not. He also asked the appellant to file an affidavit in reply.

It is unfortunate that the Magistrate followed this course of action as statute does not bestow Magistrate any power to do so.

It must be borne in mind that the Magistrates Court is a creature of Statute and therefore derives its powers from the Statute. The Criminal Procedure Code, however empowers the High Court "to receive such evidence as it thinks fit in order to inform itself as to the sentence proper to be passed."

The Magistrates Court is not similarly empowered.

The practice that has been followed by the Courts is to sentence or make an order in compliance with Section 206(2) as soon as possible after hearing a plea in mitigation by an accused person.

In this case the Magistrate should have sentenced the appellant or make an order as soon as possible after Mr. Nagin's plea in mitigation. If he was not satisfied that the facts outlined by Mr Nagin in mitigation supports the plea of guilty of the accused then he should have entered a plea of Not Guilty and proceeded with the trial.

There appears to be a difference in the submission of Mr. Nagin and Mr. Tuiqereqere in reply regarding the conversation between the Magistrate and David Collard regarding the "two years sentence" on 11th November, 1994. Mr. Nagin said that the Magistrate asked David Collard as to what sentence should be given to appellant and David Collard replied to the effect that the minimum should be two years imprisonment.

Mr. Tuiqereqere on the other hand said that what he recorded was the Magistrate said that he was looking at imposing a Custodial sentence of two years. He asked the complainant's views on that to which the complainant stated that he thought two years.

Although this conversation is unfortunate the important thing to note is that at page 26 of the record the Magistrate stated that the views of the complainant (David Collard) did not dictate the sentence. The final sentence is the prerogative of the court and I am satisfied that the consecutive sentence of two years was that of the court and no one else. However, it would be prudent for Magistrates not to make unfortunate comments like the above in future proceedings.

The appellant submits that there has been a total miscarriage of justice in this case as the sentence imposed is harsh and excessive and wrong in principle.

While I do not view the total sentence of two years as harsh or excessive I am however, mindful of the fact that the charge relates to a series of offences founded on the same facts and of the same character, and in such circumstances it is usual to impose concurrent sentences. In R v. Kastercum (1972) 56 Cr. App. R 298 at 300 Lord Widgery C.J pointed out: "The reason for that is because if a man is charged with several serious offences arising out of the same situation and consecutive sentences are imposed, the total very often proves to be much too great for the incident in question."

In the present case the sentence should have been made concurrent as all the offences were committed by means of the same modus operandi and were of an identical nature.

The breakdown being as follows:-

Count 1 21st February 1992 .. $4000

Count 2 9th March, 1992 .. $ 354

Count 3 23rd March, 1992 .. $ 214.50

The sentence imposed, therefore, must relate to these specific counts, taking into account the appellants position, his modus operandi, and the relationship that the overall sentence bears to the gravity of his criminal conduct.

I quash the sentences imposed by the lower court and in substitution therefor having regards to appellant's admission of guilt and mitigating factors, I impose the following terms of imprisonment.

Count 1 .. 2 years imprisonment

Count 2 .. 1 year imprisonment

Count 3 .. 1 year imprisonment.

These sentences are to run concurrently, constituting an overall term of 2 years imprisonment.

Since the appellant was given a suspended sentence for an offence committed later than the offences in this case it would appear rather unfair to make the order to be served immediately. I therefore most reluctantly order that the sentence of 2 years be suspended for 3 years and concurrent with the existing suspended sentence. To this extent the appeal against sentence succeeds.

S W Kepa
JUDGE

2nd May, 1995

HAA0022J.95S