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Rajan v State [2007] FJHC 50; HAA38.2007 (6 August 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA 38 OF 2007

Between:

TEG RAJAN
Appellant

AND:

THE STATE
Respondent

Counsel: Appellant – In Person
Ms. L. Lagilevu – for the State

Date of Hearing: Friday 27th July, 2007
Date of Decision: Monday 6th August, 2007

DECISION

[1] The appellant was charged with one count of obtaining money by false pretence. It was said of him that on the 11th of April 2002 at Suva with intent to defraud he obtained $2,500.00 from one Jai Narayan by falsely pretending that he was in a position to buy a van for this complainant.

[2] The matter originally came before the court on the 28th of October 2003. When the charge was read the appellant was unrepresented. He however confirmed that he understood the charge and he entered a not guilty plea. Subsequently after his failure to appear in court in January and again three times in April bench warrants were issued.

[3] The appellant next made an appearance on the 22nd of June 2004. He was represented by his lawyer Mr. Tevita Fa. A hearing proceeded in part and was resumed on the 25th of January 2005 where a no case submission was made.

[4] Appellant’s counsel was invited to make written submissions. Mr. Fa appeared on the 23rd of February and advised the court that he wanted to withdraw as he had not had the benefit of clear instructions. At the next appearance on the 15th of March 2005 Mr. Fa was still having trouble obtaining instructions.

[5] The matter was further delayed till the 13th of April where eventually Mr. Fa sought and was granted leave to withdraw. There was no appearance from his client and accordingly an open bench warrant was issued against him.

[6] In the intervening period the appellant was sentenced on unrelated matters to 18 months imprisonment.

[7] The appellant was eventually before the Court again on 22nd of December 2006. The appellant advised the court that he was representing himself. He admitted the facts. He indicated he understood the nature of the charge. He confirmed he was not forced or influenced by anyone to alter his plea but had decided to plead guilty.

[8] The appellant was sentenced on 29th December 2006 to 3 years imprisonment consecutive to the 18 month term he was already serving. He appeals against conviction and sentence.

Conviction Appeal

[9] This aspect of the appeal was poorly supported. The court record reveals (on page 23) that on the day the appellant changed his plea he told the court that he understood the charge and admitted his guilt of his own free will without force or influence.

[10] The fact that this appellant was represented through defended hearing indicates to me that he would have had the benefit of listening to the prosecution evidence and taken advice from his lawyer about the strength of the prosecution’s case.

[11] For these reasons I am satisfied that his plea of guilty, mid trial, was unequivocal. In my view he was properly convicted by the court. The appeal against conviction is dismissed.

Sentencing Appeal

[12] In essence the appellant claims his sentence was harsh and excessive. In very helpful submissions State counsel detailed a range of appropriate tariff cases that indicate a sentence of imprisonment of between 18 months to 3 years might be expected for any individual charge.

These include:

(a) Setareki Vakayadra v State [2003] HAA 099/02S 28 February 2003 – Eighteen (18) months imprisonment on lenient side for Appellant and two others who approached a student at the Central Queensland University and offered to sell the Complainant a laptop computer for $700, but the carton contained stones and paper.

(b) Vinod Prasad v State, HAA 29/02S - The two (2) years imprisonment term was within the tariff and correct in principle for obtaining $3032 from the Complainant by pretending to obtain visas for him and his family to visit Australia.

(c) Rustam Ali v State, HAA 68/89 - A two (2) years imprisonment term with a 6 months suspended sentence was activated and added to the term for the Appellant who obtained $1500 from a Complainant after pretending to sell him a video camera and watches in a parcel, which in fact contained empty cigarette packets.

(d) Steven Rajendra Kumar v State [2001] HAA 039/01S (on appeal from MC CRM Case 281/01S) - On appeal against obtaining money by false pretence, the sentence of three (3) years is within the tariff where the Appellant took advantage of trust, insult institution of marriage and Indian custom of arranged marriage and desire to migrate. The welfare of his children is not deterrence.

[13] I accept the submissions of State’s counsel concerning the tariff and available range of penalty.

[14] I find that the learned Chief Magistrate in her sentencing decision gave clear and concise reasons for constructing an appropriate sentence.

[15] This appellant had 25 previous convictions. Eleven of those offences were for similar offending. This was another deliberate fraud involving a substantial sum of money. The appellant had ignored previous court encouragement to habilitate. It was clear from his previous conviction record that a lengthy deterrent sentence was required.

[16] I accept the State’s contention that a sentence of 3 years imprisonment was well within the range of sentencing for this type of offending by a recidivist.

[17] The appeal against sentence is dismissed.

Conclusion

[18] The appeal against both conviction and sentence are dismissed.

Gerard Winter
JUDGE

At Suva
Monday 6th August, 2007

Solicitors

Appellant – In Person
Office of the Director of Public Prosecutions, Suva – for the State