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Khan v State [2008] FJHC 121; HAA0008.2008 (13 June 2008)

IN THE HIGH COURT OF THE FIJI ISLANDS
APPELLATE JURISDICTION
AT LABASA

Criminal Appeal No. HAA 0008 of 2008

BETWEEN:

FEROZ KHAN
f/n Manohar Khan
Appellant

AND

THE STATE
Respondent

Appellant in Person
Mr. M. Korovou for the Respondent

JUDGMENT

1. Feroz Khan this is your appeal against a total sentence of 2½ years passed by the Labasa Magistrate Court on 24 January 2008, after you were convicted on eleven charges of criminal offences involving larceny, Obtaining Money by False Pretences, Resisting Arrest, Escaping from lawful Custody and Criminal Intimidation. The charges for which you were sentenced by the learned Magistrate relates to 10 separate court files in which there were charges against you.

2. You pleaded guilty to all the charges and you were convicted by the learned Magistrate after he was satisfied that your plea was given of your own free will and not as a result of any pressure or undue influence from anyone. The learned Magistrate in his detail ruling has set out clearly the charges and the facts you admitted and which formed the basis of the sentencing for each of the charges that you pleaded guilty to. I have carefully review these in the context of your grounds of appeal.

3. In submitting you appeal to this court you have stated as follows:

‘ I seek leave to appeal my conviction and sentence on the charge of Criminal Intimidation ...’

It is clear that you are only appealling against the conviction and sentence in the Labasa Magistrate Criminal Case No: 011/2008. You confirmed this during your hearing.

4. I had advised you when this matter was in this Court on the 29 May 2008 that your complain against conviction has not merit. Having carefully reviewed the circumstances in which your guilty plea was accepted by the learned Magistrate and your admission of summary of facts that were outlined to you at the time, it evident that your guilty plea was given of your own free will. You were advised by the court of its likely consequences. At the hearing of your appeal you have not provided any further evidence that may support your claim that your guilty plea was equivocal: Kuruka Bogiwalu & Ifereimi Nakauta [1998]; AAU 006 of 1996.

5. I find no merit in the appeal against conviction and it is dismissed.

6. As regards the sentence, I have also indicated to you that on the facts you admitted to and on the reasoning of the learned Magistrate, the sentence of 16 months imprisonment is lenient in my view.

7. You threatened to assault and to burn the complainant’s house, which transform the criminal intimidation from a misdemeanor to a felony under section 330(a)(b) of the Penal Code Cap17. The liable term of imprisonment for you also change from 2 years imprisonment if it was a misdemeanor to 10 years for felony. To be sentenced to 16 months imprisonment by the learned Magistrate you should consider yourself fortunate.

8. The sentence passed on you was within the lawful powers of the learned Magistrate to pass and I uphold it.

9. This sentence was ordered by the learned Magistrate to be served consecutive to sentences he had already passed on you with respect some of the other charges. Again the learned Magistrate was well within the powers available to him to make that order under Section 28(4) of the Penal Code Cap 17. As Mr. Justice Pathik observed in Tukoli Visawqa v The State [2003]FJHC 138

‘ The power to order sentences to run consecutively is subject to two major limiting principles, which may be called the ‘One-Transaction Rule’ and ‘The Totality Principle’. It does not mean that consecutive sentence cannot be imposed, so long as the overall sentence is not unduly harsh and by the same token the outcome of the concurrent sentences are not rendered unduly lenient in view of the aggravating features.’

The above statement of principle applies in this case. The above statement of principle and law was restated by the Supreme Court in Joji Waqasaqa v The State [2006]FJSC 6; CAV 009 of 2005

10. The cumulative total period of imprisonment passed by the learned Magistrate in this case was 10 years. By ordering that some of the sentences be served concurrent and others consecutive he was in fact applying the totality principle. It is also evident from the summary of facts admitted to by the appellant with regard to the Criminal Intimidation charges in Criminal Case File No: 011/2008 that they arose from separate and distinct criminal activities to the offences for which the other sentences were ordered to be served consecutive to: Krishna & Others v R (1962) 8 FLR 235.

11. In the light of the above, I have concluded that the sentence passed against you was correct in law. Your appeal against it has no merit.

12. This appeal is therefore dismissed as having no merit. The decision of the Learned Magistrate is upheld.

Isikeli Mataitoga
JUDGE

At Suva
13 June 2008.