IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA 37 OF 2014

BETWEEN:

PETER YAU
Appellant

AND:

STATE
Respondent

Counsels: Mr. Vakaloloma for the Appellant 
Mr. S. Babitu for the Respondent 

Date of Judgment: 26 March 2015

JUDGMENT

1.	The Appellant was charged before the Lautoka Magistrate Court on one count of Obtaining Property by Deception contrary to Section 317 (1) of the Crimes Decree No. 44 of 2009. The particulars of the offence was that the Appellant by deception dishonestly obtained 510 Kg of Sea Cucumber valued $32,264.50 the properties of Fred Ho with the intention of permanently depriving the said Fred Ho.

2.	The Appellant pleaded Not Guilty and after trial convicted and sentenced for period of 3 years.

3.	The appeal against the conviction and sentence was filed on 8.9.2014 within time.

4.	The grounds of Appeal against the conviction and sentence are:

THAT the Learned Trial Magistrate erred in law and in fact in convicting the Appellant when she had no jurisdiction to preside over the case.

THAT the Learned Trial Magistrate erred in law and in fact when she accepted and allowed hearing to proceed in the absence of the complainant; and allowed Prosecution application for substitution of the Complainant by the Complainant’s wife.

THAT the Learned Trial Magistrate erred in law and in fact in convicting the Appellant on the evidence of PW1 whose statement was served to the defence Counsel on the day of hearing which was highly prejudicial to the Appellant and in breach of his constitutional right to have a fair trial.

THAT the Learned Trial Magistrate erred in law and in fact in allowing the Prosecution to call PW1 without allowing an adjournment to the defence counsel to seek further instructions from the Appellant.

THAT the Learned Trial Magistrate erred in law and in fact in convicting the Appellant despite the fact there was no evidence that the Appellant “obtained” the sea cucumber.

THAT the Learned Trial Magistrate erred in law and in fact in convicting the Appellant on admissions of non-existing facts and/or facts that were not proved in Court.

THAT the Learned Trial Magistrate erred in law and in fact in misdirecting herself on the element of the offence.

THAT the Learned Trial Magistrate erred in law and in fact in convicting the Appellant when there was at its worst a contractual obligation and statutory defence available to the Appellant.

THAT the sentence is wrong, harsh and excessive in all the circumstances of the case.

5.	When the case was taken up for hearing on 24.10.2014, the counsel for the Appellant admitted that the grounds against the conviction is not supported by the copy record and therefore moved for time to make an application for the correction of Magistrate Court record to the learned Magistrate. 

6.	When the case was taken up for hearing again on 16.2.2015, the counsel for the Appellant abandoned the appeal against conviction as those grounds are not supported by the copy record. He limited his appeal against the sentence only for a deduction in the sentence for the time period in remand.

7.	The Appellant had filed papers to establish that the Appellant was in the custody of the Fiji Immigration Department from the 5.9.2013 to date of his sentence on 22.8.2014. Fiji Corrections Service had confirmed that the Appellant was in their custody from 19.8.2013 to 5.9.2013. Therefore, the Appellant was in custody from 19.8.2013 to 22.8.2014 for a period of one year. 

8.	State in their reply had submitted that the period in custody in Immigration Department cannot be considered as a time period in remand for this case as the Appellant who was not a citizen of this country had overstayed his visa.

9.	I have carefully considered the documents and submissions filed by both parties regarding the remand period of the Appellant. 

10.	Section 24 of the Sentencing and Penalties Decree as follows.

‘If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court otherwise orders, be regarded as the court as a period of imprisonment already served by the offender.’

11.	In Bavoro v State [2013] HAA 20/12B (15 January 2013) Hon. Mr. Justice D. Goundar held:

‘Once a term of imprisonment was imposed, the learned magistrate was then obliged to comply with Section 24 of the Sentencing and Penalties Decree by making appropriate reduction in the sentence to reflect the appellant's remand period. Unfortunately, that was not done. Instead, the learned magistrate used the remand period to justify suspending the sentence. Remand period is not a special circumstance. Remand period is a form of imprisonment, pending trial. If a remanded suspect is subsequently convicted of the alleged offence and sentenced to an imprisonment term, the only sensible and fair approach to punishment is to make a downward adjustment to the sentence to reflect the remand period. This procedure has been endorsed by the Court of Appeal in Basa v the State  [2006] FJCA 23; AAU0024.2005 (24 March 2006) and the Supreme Court in Ledua v  State  [2008] FJSC 31; CAV0004.2007 (17 October 2008).

12.	The learned Magistrate had deducted 2 years of the Appellant’s sentence for the following mitigating factors:

(i)	That he is 72 years of age
(ii)	He is a first offender
(iii)	And has been in custody for over two years

13.	This Court is of the view that there should be a separate deduction for the time period in remand in this case. This Court is of the view that the period in custody of the Fiji Immigration Department should also be considered as a period in remand for this case. 

14.	The Appellant had undergone a heart operation and now shown some degree of independency and presently clinically stable but will need assistance for indefinite period of time. Rehabilitation exercises and treatment modality may enhance his condition and reduce dependency. 

15.	This background warrants this Court to exercise its powers in terms of Section 256 (3) of the Criminal Procedure Decree to quash the sentence passed by the Magistrate and pass other sentence which reflects the gravity of the offence within the acceptable range of tariff.

16.	I take the same starting point of 2 years and add 3 years for the aggravating factors and deduct 2 years for the mitigating factors. I deduct further 1 year for the time period in remand. The final sentence is 2 years. This sentence is operative from the date of sentence that is 22.8.2014.

17.	I am mindful about the Section 18 (1) of the Sentencing and Penalties Decree. However, acting under Section 18 (2) of the Sentencing and Penalties Decree and considering the age, medical condition and previous record of the Appellant, I am of the view that fixing a non-parole period is inappropriate in this case.

18.	 The Appellant had moved to consider the suspension of the balance period of his sentence. However, considering the amount involved and the new tariff for the deception offences set by Hon. Mr. Justice Paul Madigan in State v Sharma [2010] FJHC 623; HAC 122.2010L (7 October 2010), I decide against the suspension of the sentence. The tariff is 2 - 5 years. The learned Magistrate had correctly followed this tariff.

19.	In State v Miller [2014] FJHC 16; Criminal Appeal 29.2013 (31 January 2014), it was held:

“There are two deception offences in the Crimes Decree; obtaining property by deception (Section 317) and obtaining a financial advantage by deception (Section 318). The main section is 317 because there are numerous sub clauses of explanation, and the section encompasses obtaining of choses-in-action as well as of tangible property. Obviously the section provides for the taking of monies and so it would have been a far more relevant offence in a situation such 

as in the present case. Obtaining a financial advantage (Section 318) is more appropriate to situations such as securing scholarships by deception, securing a credit line by deception for example. It is not wrong for the charge to read financial advantage in this case, but it is not strictly correct. When an employee steals money from a bank account it is theft of a chose-in-action and it is obtaining property by deception contrary to 317 (7) or sometimes 317 (8) if the money is transferred to another. 

The penalty for both offences is the same, that is ten years. Under the old Penal Code the maximum for the offence was a term of 5 years and the tariff was between 18 months to three years. As this Court stated in Atil Sharma HAC 122.2010, given that the penalty has doubled, a new tariff should be set as being between 2 years and 5 years with the minimum being reserved for minor spontaneous cases with little deception. 

From two years to five years then is the new tariff band for these two offences (financial advantage and property) and any well planned and sophisticated deception will attract the higher point of the band or even more if that court gives good reason. It will of course be a serious aggravating feature if the person being defrauded is unsophisticated, naive or in any other way socially disadvantaged.”

20.	In State v Sharma [2010] FJHC 623; HAC 122.2010L (7 October 2010) it was held by Hon. Mr. Justice Paul K. Madigan that:

“The tariff under the Penal Code offence for obtaining money by deception was 18 months to three years (Arun  v State  [2009] HAA 55 of 2008, Ateca  v State  HAA 71 of 2002, Rukhmani  v State HAA 056 0f 2008).

Now that the penalty under the new Crimes Decree has doubled, then obviously this tariff needs to be revisited. The tariff for obtaining a pecuniary advantage by deception should now be between 2 years and 5 years with 2 years being reserved for minor offences with little and spontaneous deception. The top end of the range will obviously be reserved for fraud of -the most serious kind where a premeditated and well planned cynical operation is put in place."

21.	Appeal against conviction dismissed. Appeal against the sentence allowed. The sentence varied. 

Sudharshana De Silva
JUDGE
At Lautoka
26 March 2015

Solicitors : Vakaloloma & Associates for the Appellant
Office of the Director of Public Prosecutions for Respondent