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IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO. HAA0004 OF 1998
BETWEEN:
:
THE STATE
Appellant
AND:
PATRICK MICHAEL RAFOI
Respt
Counsel: Mr K Wion fson for Appellant Respondent in person
Hearing: 24th February 1998
Decision: 24th February 1998
ORAL DECISION OF PAIN J.
This is an appeal by the State against a sentence imposed upon the Respondent in the Magistrates Court.
The Respondent pleaded guilty in the Magistrates Court to a charge under Section 279(1)(c)(i) of the Penal Code of conversion of $5000. The record of the Magistrates Court shows that the prosecutor then presented the following facts:
"On 18/3/96 at 5.00 p.m. accused went to complainant and asked for piece of land. $5000 cost paid by complainant. Land was someone
else's".
The Respondent admitted previous convictions on 16th of May 1989 in the District Court at Auckland, New Zealand for one charge of
burglary and six charges of false pretences. On those charges he was sentenced to 12 months supervision.
The record of the Magistrates Court concludes:
"Mitigation - Found a job. Shall not re-offend
Court - Convicted as charged. Should be given another
chance. 15 months imprisonment. Suspended for
two years".
Counsel for the Appellant submits that a prison sentence was appropriate. However, there were no sufficient reasons given by the learned
Magistrate or implicit in the record for suspending the operation of that sentence. That suspension makes the sentence manifestly
lenient for this offence.
Unfortunately, there are serious deficiencies in the prosecution of this case in the Magistrates Court.
In the first place there are defects in the charge laid in the Magistrates Court. This alleges that the Respondent, "fraudulently
converted the sum of $5000 being entrusted to him by Roger Fong for his own use and benefit". The literal reading of this is
that Mr Fong entrusted the money to the Respondent for the Respondent’s own benefit. That does not make sense. Moreover, the
wording of the charge does not incorporate one of the particular purposes for which the property must be entrusted to the offender
which is an essential ingredient required by Section 279(c)(i) of the Penal Code.
Another major defect is the failure of the prosecution to supply or the learned Magistrate to require a proper summary of facts of
the offending. The three sentence summary does not make sense. It is totally inadequate for the sentencer to be apprised of the actual
conduct of the offender and the full nature and gravity of the offence.
The learned Magistrate’s remarks on sentencing are also inadequate. He merely said, "should be given another chance"
without giving any reasons. All that can be inferred is that the learned Magistrate considered that the offence of fraudulently converting
$5000 warranted a custodial sentence. However, he failed to enunciate the reasons for suspending that sentence.
These various matters I have mentioned militate against the ability of this court to properly consider the sentence imposed against
the nature of the offending and the circumstances of the offender. A possible solution would be to quash the sentence and remit the
case back to the Magistrates Court so that the hearing could be concluded anew and in a proper way. That would be by the prosecutor
providing an adequate summary of facts, outlining full particulars of the offence. A mitigation plea would then be made by the Respondent
and the learned Magistrate would give reasons and impose a sentence that is appropriate for the offence. However, that would not
remedy the defects in the charge itself. Moreover, it would be unfair to the Respondent to give the State a second opportunity, the
purpose of which would be to remedy the defects of the original police prosecution.
In all the circumstances, it is appropriate that I should consider the appeal upon the basis of the record in the Magistrates Court.
The deficiencies in that record and in the prosecution of the case in the Magistrates court impose considerable difficulties for
the State which has the onus of showing that the sentence is manifestly lenient. I have concluded that the sentence, although probably
lenient for the actual offending, has not been shown to be manifestly lenient on the basis of the record.
I give the following reasons for this:
1. This court should not increase a sentence without full details of the circumstances and gravity of the offending.
2. The prosecution failed to present an adequate summary of facts in the Magistrates Court. From the sparse details given it is impossible
to determine the nature and gravity of the offence. I therefore cannot say that the prison sentence of 15 months, suspended for two
years is manifestly lenient for the offence committed by the Respondent. A suspended prison sentence is recognized as a substantial
penalty which is recorded against the offender as a sentence of imprisonment.
3. The record gives details of some circumstances that could be taken into account for suspending the prison sentence. The facts are
inadequate and do not show grave fraudulent offending. The Respondent pleaded guilty and said that he would not re-offend. He had
just found employment, he had only one previous court appearance and had since remained out of trouble for seven years. [See for
instance The Queen v Glennister (unreported Court of Criminal Appeal 25/7/72) in which a person with a history of offending who had kept out of trouble for only
12 months was "given a chance" by the imposition of a suspended prison sentence".]
The appeal is dismissed.
Justice D B Pain
Haa0004d.98s
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