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Raisoqo v State [2011] FJHC 629; HAA105.2011 (5 October 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 105 OF 2011

BETWEEN:

MEREIA RAISOQO
APPELLANT

AND:

STATE
RESPONDENT

Counsel: Appellant - In Person
Respondent - Ms Drau

Date of Hearing: 16 September 2011
Date of Judgment: 05 October 2011.

JUDGMENT

[1] The Appellant was charged with 18 counts of forgery and 18 counts of uttering forged documents in the Magistrate's Court. On the 13th January 2011 on her own plea of guilty she was convicted and was sentenced for 2 years imprisonment on each count to run concurrently. It was ordered that she is not eligible for parole for a period of 12 months.

[2] Appellant appealed against the said sentence stating the sentence is harsh and excessive.

[3] In that, she says that she is a first offender and that she pleaded guilty, there had been a delay in sentencing and that she was not given a chance to mitigate prior to sentencing.

[4] The appellant pleaded guilty to the charges on 31/07/2009 and was sentenced on13/01/2011 after about 1½ years.

[5] On perusing the court record of the Magistrate's Court, I find that after pleading guilty the appellant had been absent from court and a bench warrant was issued to arrest her. Thereafter the appellant had been present in court only on 20/04/2010.

Thereafter the appellant had moved for further time to mitigate and time was granted till 8/7/2010.

[6] On 08/07/2010 counsel for appellant has informed that she would not be calling any witnesses to mitigate and the date 17/08/2010 was fixed for sentence.

[7] The delay in sentencing had therefore been after 17/08/2010. After adjourning the case on several occasions the learned Magistrate sentenced the appellant on 13/01/2011.

[8] Therefore, the appellant has contributed to the delay in sentencing.

[9] The learned Magistrate has given an opportunity for further mitigation and therefore the ground that the appellant was not given a chance to mitigate has no merit and should necessarily fail.

[10] The learned Magistrate in paragraph 15 of his judgment has considered the early guilty plea of the appellant.

[11] The learned Magistrate in paragraph 5 of his sentencing judgment has considered that the appellant is the first offender. When considering the previous good character of the appellant, the learned Magistrate in his judgment said:

"In addition she specifically highlighted your previous good character too. At this point I referred Justice Gounder's finding in FICAC v Jaswant Kumar (Crim case HAC 001 of 2009), that a person's previous good character is an essential pre-requisite to hold a public service position. Usually this type of offending is committed by person of unblemished character holding post of trust and authority in the public service".

[12] In State v Bole [2005] FJHC 470; HAC 0038S (4 October, 2005) Shameem J said:

"In breach of trust cases, comparably less weight is put on good character, because only people of good character are given positions of trust and responsibility. It is the breach of trust which is the harm done in these offences". (Also cited in Nadini v State [2011] FJHC 221; Criminal appeal 001 of 2011 (1 April 2011).

[13] The tariff for forgery ranges between 18 months to 3 years (State v Tomasi Kalitoga Kesi [2009] FJHC 145; HAC024.2009 (22 July 2009) and Hu Jun Yun v State [2005] FJHC 93; HAA0024J.2005S (26 April 2011).

[14] In this case the learned Magistrate has considered the mitigating factors placed before him, and the sentence imposed is well within tariff. In sentencing remarks the learned Magistrate in his judgment has well reasoned out the sentence he imposed.

[15] The learned Magistrate has well considered the aggravating factors, mitigating factors and the gravity of the offence when imposing the sentence. Hence, I find that the sentence imposed is neither harsh nor excessive.

[16] Appeal is dismissed.

Priyantha Fernando
Judge

At Suva
05/10/2011.