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Maraivalu v FICAC [2015] FJHC 231; HAA52.2014 (30 March 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA 52 OF 2014

BETWEEN:

PAULA MARAIVALU
Appellant

AND:

FICAC
Respondent

Counsels: Mr. R. Kumar for the Appellant
Ms. S. Datt for the Respondent

Date of Hearing: 18 March 2015
Date of Judgment: 30 March 2015

JUDGMENT

1. The Appellant was charged before the Lautoka Magistrate Court with one count of Personation contrary to Section 142 of the Electoral Decree No. 11 of 2014.
   
2. Appellant pleaded Guilty to the above charge admitted the summary of facts and was convicted. He was sentenced on 24th October 2014 for 2 years imprisonment.
   
3. The summary of facts are as follows:
   

On the 4th day of July 2014 the Supervisor of Elections Mr Mohammed Saneem reported a possible case of Impersonation to the Deputy Commissioner FICAC for investigation under Section 18 of the Electoral Decree No. 11 of 2014.

FICAC investigations revealed witnesses – Farina Chabella Aropio and Hanisefuri Rebeca Aropio who identified the accused Paula Maraivalu as one of the iTaukei men who had approached them during the period in question. The accused presented himself as an officer from the Elections office he then asked the witnesses for their voter id cards, the accused recorded the voter identification card details of Hanisefuri Rebeca Aropio into a form thereafter the same was given to the witness to sign. The witnesses did not know the real purpose of obtaining their signatures from these 'officials'.

The signature of one of the witnesses (Hanisefuri Rebeca Aropio) appeared on the Fiji Times newspaper on 30 July 2014. The witness later came to know that her signature has been fraudulently obtained to register a political party namely Activist Peoples Party. The witness was not happy when she saw her signature and voter number 0314406901798 in page 10 number 896 of the Fiji Times dated Wednesday July 30, 2014. The witness also confirmed that she would not have given her voter details had she known that the accused was from a political party.

On 11th September 2014 the accused was interviewed under caution during the interview he admitted the collection of signatures was for the application for registration of their proposed political party namely the Activist Peoples Party; the accused admitted he was the Chairman of the proposed political party. The accused admitted that he had lied that he was an official from the Elections office because he was running short of time to submit their application for the party registration and he confessed that he had committed an offence by trying to lying to these people to collect their signatures and he also admitted that he had made a joke about the misrepresentations that he had made to these witnesses. Finally he admitted that these signatures were for the registration of their party.

On 15th September 2014 the accused was charged with one count of Personation contrary to Section 142 (c) of the Electoral Decree No. 11 of 2014 he was produced before the Honorable Magistrate on the same day.

4. This appeal against the sentence was filed on 6.11.2014 within time.
   
5. His grounds of appeal against the sentence are:
   
   • (i) That the Appellant is aggrieved by the learned sentencing Magistrate taking 3 years as the starting point.
     
   • (ii) The sentencing Magistrate had misdirected herself in overlooking the sentencing Guidelines when passing the sentence
     
   • (iii) The learned Magistrate failed to consider Section 4 (1) (a) of the Sentencing and Penalties Decree.
     
   • (iv) The sentence is harsh and excessive considering that the Appellant pleaded guilty to the offence in the first instance.
     
6. Both parties have filed written submissions. I have carefully considered those.
   

1st Ground

7. The first ground is that the starting point taken by the learned Magistrate is not correct.
   
8. The learned Magistrate had correctly identified the maximum punishment for the offence as 10 years imprisonment or a fine not exceeding $50,000.00 or both.
   
9. There is no set tariff for the offence as this is the first time a person was sentenced under this Decree for this offence.
   
10. The learned Magistrate had noted that the Maximum sentence under the Crimes Decree and Penal Code is 3 years for Personation.
    
11. The learned Magistrate then decided to take a starting point of 3 years.
    
12. In Koroivuki v State [2013] FJXCA 15; AAU 0018.2010 (5th March 2013) the Supreme Court held:
    

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this stage. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls outside either below or higher than the tariff, then the sentencing Court should provide reasons why the sentence is outside the range."

13. Considering the objective seriousness of the offence, the learned Magistrate is correct in selecting this starting point which is below 1/3 of the maximum sentence. There is no merit in this ground and it fails.
    

2nd Ground

14. The second ground is that the learned Magistrate had over looked the sentencing Guide lines. This is factually wrong as this is the first time a person was convicted for this offence under this Decree.
    
15. Further, the learned Magistrate had considered the tariff for the Personation for the offences under Penal Code and Crimes Decree but decided not to follow those.
    
16. There is no merit in this ground and it fails.
    

3rd and 4th Grounds

17. The third ground is that the learned Magistrate failed to consider Section 4 (1) (a) of the Sentencing and Penalties Decree and the fourth ground is that the sentence is harsh and excessive.
    
18. The Section 4 (1) (a) is as follows:
    

'The only purposes for which sentencing may be imposed by a court are-

(a) To punish offenders to an extend and in a manner which is just in all the circumstances'

19. The learned Magistrate had considered the aggravating factors and the mitigating factors. Then there is separate 1/3 deduction for the Guilty plea.
    
20. Appellant had failed to satisfy this Court that the learned Magistrate erred in anyway in consideration of the above.
    
21. In Bae v State [1999] FJCA 21; AAU 0015u.98s (26 February 1999) the Court of Appeal held that:
    

"It is well established law that before this court can disturb the sentence, the appellant must demonstrate that the court below fell into error in exercising its sentencing discretion. If the trial Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes facts, if he does not take into account some of the relevant considerations, then the appellate court may impose a different sentence. This error may be apparent from the reasons for sentence or it may be inferred from the length of the sentence itself. (House v The King [1936] HCA 40; (1936) 55 CLR 499)

22. This sentence is neither harsh nor excessive in the circumstances. There is no merit in the above grounds. The Appellant had failed to satisfy this court that the learned Magistrate either did not consider relevant factors or considered irrelevant matters.
    
23. For the reasons given above the appeal against the sentence is dismissed.
    

Sudharshana De Silva
JUDGE

At Lautoka
30th March, 2015

Solicitors: Office of the Legal Aid Commission for the Appellant
Office of the Fiji Independent Commission Against Corruption for Respondent