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Mani v State [2010] FJHC 483; HAA045.2010 (1 November 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA45 of 2010

BETWEEN:

NARENDRA MANI
Appellant

AND:

THE STATE
Respondent

Hearing: 15 October 2010
Judgment: 1 November 2010

Counsel: Appellant in person
Ms S. Naidu for State

JUDGMENT

[1] The appellant pleaded guilty to a charge of obtaining money by false pretence in the Magistrate's Court and was sentenced to 20 months imprisonment. He appeals against conviction and sentence.

[2] The appellant submits that the charge is defective in a sense that it discloses a future promise, which is not an offence known in law.

[3] Section 309(a) of the Penal Code provides:

"Any person who by any false pretence –

(a) with intent to defraud, obtains from any other person any chattel, money, or valuable security, or causes or procures any money to be paid, or any chattel or valuable security to be delivered to himself or to any other person for the use or benefit or on account of himself or any other person;

is guilty of a misdemeanor, and is liable to imprisonment for five years."

[4] False representation is defined by section 308 as follows:

"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, is a false pretence."

[5] It has been held that a promise to do something in future is not a false representation under section 308 (Ramesh Chand v. State [2004] FJHC, Sudesh Singh v. State [2009] FJHC 204).

[6] The particulars of the offence alleged that the appellant between 24 August 2007 and 2 October 2007 with intent to defraud, obtained $5882.00 cash from the complainant by falsely representing that he will sell and transfer a taxi permit to the complainant.

[7] The facts admitted by the appellant show that he placed an advertisement in a local newspaper for sale of a taxi permit. The complainant responded to the advertisement and called the appellant. The appellant promised to sell the taxi permit to the complainant. Over a period of three months the appellant received a number of payments from the complainant for the sale of the taxi permit. The appellant got the complainant to deposit the payments into his son's bank account.

[8] The complainant was given details of the taxi permit that the appellant promised to sell him. After making various payments, the complainant enquired with the Land Transport Authority about the taxi permit that the appellant promised to sell him. The complainant learnt that the said taxi permit belonged to someone else and not to the appellant. The complainant reported the matter to the police. Under caution the appellant admitted taking money from the complainant on the pretext of selling his taxi permit.

[9] The facts admitted by the appellant clearly show that he made a false representation of an existing fact, that is, he was the owner of a taxi permit, which he was willing to sell to the complainant. He clearly had an intention to deceive the complainant when he lured him to contact him by placing a false advertisement in a newspaper. The complainant was induced to part with his money on the basis of false representation of an existing fact. I therefore conclude that the appellant was properly convicted of an offence known in law. The appeal against conviction is dismissed.

[10] The appellant raises numerous grounds of appeal against sentence. He complains about disparity in his sentence arising from sentences imposed in unrelated cases.

[11] The parity principle, which applies where the sentences imposed on co-offenders are so disproportionate as to leave the offender with the higher sentence, with a justifiable sense of grievance (Lowe v. Queen [1984] HCA 46; (1984) 154 CLR 606 and R v. Fewlett (1983) 5 Cr. App. R(s) 158), does not apply in this case. Each case is considered on its own facts, and without knowing the facts of the other cases, I cannot conclude that the appellant has a legitimate reason to be grieved on the ground of disparity in sentences. This ground fails.

[12] The appellant's second complaint is that the learned Magistrate failed to consider his plea as an early guilty plea to give an appropriate discount of one third reduction in sentence.

[13] The appellant appeared on the charge in the Magistrate's Court on 13 July 2009. Plea was deferred for him to engage counsel. He was released on bail. On the next court date he failed to appear and a warrant was issued for his arrest. He was arrested on the warrant after one year. His reason for not appearing was that he had measles. The court found the reason to be unsatisfactory and he was remanded in custody. On the next court appearance the appellant pleaded guilty.

[14] In his sentencing remarks the learned Magistrate noted the appellant's plea was not an early guilty plea. Nevertheless, the guilty plea was taken into account and a discount of 6 months was given to reflect this factor. In my judgment, no error has been shown in the manner the appellant's guilty plea was considered and therefore this ground fails.

[15] The appellant's other complaints are that he is not a born criminal, he is 46 years old and not 40 years as noted by the learned Magistrate and that his sentence is harsh and excessive.

[16] The age of the appellant should not make any difference to his sentence. He was not a first time and a young offender to deserve any discount for age and previous good character. The appellant had four previous convictions since 2004 for dishonesty offences. The learned Magistrate quite properly dealt with this factor by not giving him any reduction for previous good character.

[17] The sentence for the offence of obtaining money by false pretence range from 18 months to 3 years imprisonment (Ramesh Chand v. State Crim. App. 012 of 2003S). The sentence of 20 months imprisonment imposed on the appellant is within the tariff for this offence. There were no special circumstances present to suspend the sentence.

[18] The only matter of concern is that the appellant was in custody on remand from 6 May 2010 until 5 July 2010 when he was sentenced. There is no reference in the learned Magistrate's remarks that he took the remand period into account. It has been said on many occasions by the appellate courts that an offender's remand period should be taken into account to make a downward adjustment to the sentence.

[19] For this reason, the appellant's sentence is reduced to 18 months imprisonment. The appeal succeeds to this extent.

Daniel Goundar
JUDGE

At Suva
1 November 2010

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