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Arun v State [2009] FJHC 231; HAA052-HAA055.2008 (23 October 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No: HAA052-055 of 2008

BETWEEN:

KAMLESH LATA ARUN d/o JAI MANGAL
Appellant

AND:

THE STATE
Respondent

Date of Hearing: 11th September 2009
Date of Judgment: 23rd October 2009

Counsel: Mr. S. Sharma for Appellant
Ms V. Lidise for State

JUDGMENT

[1] Following pleas of guilty in the Magistrates’ Court, the appellant was convicted of the following offences:

Case No: 189 of 2007

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCES: Contrary to Section 309 of the Penal Code, Cap 17.

Particulars of Offence

KAMLESH LATA ARUN d/o Jai Mangal between the 23rd day of January 2006 and 1st day of September, 2006 at Lautoka in the Western Division, with intent to defraud, obtained $36,825.00 from Anil Kumaran s/o Subarmani by falsely pretending that she the said Kamlesh Lata Arun f/n Jai Mangal was an Immigration Officer and was in a position to obtain family migration Visa for the said Anil Kumaran s/o Subarmani, such representation being false.

Case No: 670 of 2007

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCES: Contrary to Section 309(a) of the Penal Code Cap 17.

Particulars of Offence

KAMLESH LATA ARUN d/o Jai Mangal between the 15th day of January, 2007 and the 23rd day of January, 2007 at Lautoka in the Western Division, with intent to defraud, obtained from Reshmi Rimlesh Lata d/o Gaya Prasad the sum of $6,000.00 in monies by falsely pretending that she, the said Kamlesh Lata Arun was Legal Officer for Australia and New Zealand, and would obtain family migration Visa for the said Reshmi Rimlesh Lata d/o Gaya Prasad.

Case No: 671 of 2007

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCES: Contrary to Section 309(a) of the Penal Code Cap 17.

Particulars of Offence

KAMLESH LATA ARUN d/o Jai Mangal between the 14th day of September, 2006 and the 29th day of September, 2006 at Lautoka in the Western Division, with intent to defraud, obtained from Rina Rohish Lata d/o Gaya Prasad the sum of $11,431.30 in monies by falsely pretending that she, the said Kamlesh Lata Arun was the Legal Lawyer for Australian Embassy and would arrange family migration Visa for Australia for the said Rina Rohish Lata d/o Gaya Prasad.

Case No: 839 of 2007

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCES: Contrary to Section 309(a) of the Penal Code Cap 17.

Particulars of Offence

KAMLESH LATA ARUN d/o Jai Mangal between the 15th day of August, 2006 and the 15th day of January, 2007 at Lautoka in the Western Division, with intent to defraud, obtained from Rajneel Avinesh Deo s/o Muni Deo, the sum of $11,200.00 in monies by falsely pretending that she, the said Kamlesh Lata Arun was an Immigration Lawyer for New Zealand Embassy and would arrange family migration visa for New Zealand for the said Rajneel Avinesh Deo, such representation being false.

[2] The appellant was sentenced on each charge to 4 years imprisonment, to be served concurrently. She appeals against conviction and sentence.

Appeal against Conviction

[3] The grounds of appeal against conviction are:

(1) The learned trial Magistrate erred in law in accepting the guilty plea of the appellant when:

(a) The charges filed were defective in that it did not disclose all the essential elements of the offences hence the entire proceedings were a nullity.

(b) The charges did not establish any offence known to law.

(2) The appellant was prejudiced by lack of legal representation.

[4] It is settled law that an appeal against conviction after a guilty plea is only entertained in limited circumstances, such as, if the appellant claims the plea was a nullity, or the offence was not known in law, or where the proceedings were otherwise invalid (Sikeli Koro v State HAA0048/02L (2 October 2002)).

[5] Counsel for the appellant advances a number of arguments in support of the grounds of appeal. Counsel submits that the first charge is irregular because it fails to specify the relevant subsection of section 309 the Penal Code. Counsel says section 309 contains subsections (a) and (b), and the statement of offence should have specified the relevant subsection.

[6] In Ram Sami v State [1999] 45 FLR 70, Fatiaki J held that there is no statutory requirement that the statement of the offence should also refer to any particular subsection or paragraph of the section charged, although it is highly desirable that it do so if relevant. In the present case, although it would have been prudent for the State to specify the subsection of section 309 of the Penal Code in the statement of offence, the omission was not fatal because the charge was obviously framed in accordance with subsection (a) and the appellant was not prejudiced.

[7] The appellant submits that the charges were defective because they did not allege that the monies were obtained by the appellant for her own use, which is an essential ingredient of the offence of false pretence.

[8] In response, the State submits that the particulars of offence in each case alleged that the monies were obtained by the appellant, and therefore, it is implicit in the charges that she obtained the monies for her own use. I accept this submission. This was not a case where the accused obtained the monies for someone else. When the appellant was later confronted by the complainants on the assurances she gave, she promised to reimburse the complainants. In mitigation, the appellant informed the court that she intended to repay the complainants by selling her properties in New Zealand. The promises to reimburse allude to the fact that the appellant obtained the monies for her own use. I do not think that the failure to allege in the charges that the monies were obtained by the appellant for her own use prejudiced her.

[9] The offence of false pretence is complete upon prove that the pretence was made, that the money was obtained, with intent to defraud and that the pretence was false to the knowledge of the accused (R v Dutt 8 Cr App R 51). The offence is codified in section 309 of the Penal Code. Section 309 mirrors section 32 of the English Larceny Act 1916 and therefore the English authorities are relevant.

[10] Section 309 reads:

"Any person who by any false pretence –

(a) with intent to defraud, obtains from any other person any chattel, money, or valuable security, or causes or procures any money to be paid, or any chattel or valuable security to be delivered to himself or to any other person for the use or benefit or on account of himself or any other person; or

(b) with intent to defraud or injure any other person fraudulently causes or induces any other person –

(i) to execute, make, accept, endorse or destroy the whole or any part of any valuable security, or

(ii) to write, impress, or affix his name or the name of any other person, or the seal of any body corporate or society, upon any paper or parchment in order that the same may be afterwards made or converted into, or used or dealt with as, a valuable security,

is guilty of a misdemeanor, and is liable to imprisonment for five years."

[11] Section 308 of the Penal Code defines false pretence:

"Any representation made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false, or does not believe to be true, is a false pretence."

[12] The charges are framed in accordance with the rules prescribed by the Criminal Procedure Code. The purpose of a charge is to ensure that the accused person knows the offence with which he or she is charged. Section 119 of the Criminal Procedure Code provides that every charge must contain a statement of the specific offence and particulars as be necessary for giving reasonable information as to the nature of the offence.

[13] Section 122 of the Criminal Procedure Code provides:

"The following provisions shall apply to all charges and informations and, notwithstanding any rule of law or practice, a charge or information shall, subject to the provisions of this Code, not be open to objection in respect of its form or contents if it is framed in accordance with the provisions of this Code –

(a) (i) a count of a charge or information shall commence with a statement of the offence charged, called the statement of offence;

(ii) the statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by enactment shall contain a reference to the section of the enactment creating the offence;

(iii) after the statement of the offence, particulars of such offence shall be set out in ordinary language, in which the use of technical terms shall not be necessary:

Provided that where any rule of law or any Act limits the particulars of an offence which are required to be given in a charge or information, nothing in this paragraph shall require any more particulars to be given than those so required;"

[14] In Shekar Shankar v. State [2005] AAU0056/04 the Court of Appeal said:

"Whilst the particulars should be as informative as is reasonable practicable, it is not necessary slavishly to follow the section."

[15] Similar observation was made by the Court of Appeal in State v. Brijan Singh [2007] AAU0097/05S:

"The purpose of the particulars of offence is to indicate to the person accused of the offence the nature of the case the State intends to present."

[16] The appellant’s first appearance in the Magistrates’ Court was on 5 October 2007. She pleaded guilty on 1 July 2008. Over this period different counsel represented her in the proceedings. At no stage of the proceedings before pleading guilty the appellant objected to the charges or complained that she did not know the offence she was charged. Each charge contained a statement of offence alleging the offence of false pretence and sufficient particulars to give notice of the charge to the appellant.

[17] The false pretence alleged in the first charge was that the appellant was an immigration officer and was in a position to obtain family migration visa. The false pretence in the remaining charges was that she was a legal officer and was in a position to obtain visas for either Australia or New Zealand. The appellant submits that the latter accompanied by her willingness to reimburse the complainants constitute a future promise.

[18] A promise to do something in future does not fall within the meaning of false pretence as defined by section 308 of the Penal Code. However, a false representation as to an existing fact, coupled with a future promise, is sufficient to constitute a false pretence (State v. Singh [2007] FJCA 46; AAU0097.2005S (25 June 2007). Further, if the representation by the accused is that he or she has power to do something in future, knowing the representation is false, that would constitute a false pretence of an existing fact (R v Bancroft 3 Cr App R 16). The English Court of Appeal in R v Dent 39 Cr App R 131 held that a statement with regard to readiness and willingness to pay, thought it may suggest a statement about future conduct, may amount to a statement that the accused has, as an existing fact, the power and means to pay, and may constitute a false pretence.

[19] The appellant represented to one complainant that she was an immigration officer and to others she said she was a legal officer. Her representation was false because the appellant neither was an immigration officer, nor was she a legal officer. She knew her representation was false. Her representation was followed by a future promise to arrange visas for the complainants. In my view, her representation constitutes a false pretence of an existing fact, which induced the complainants to part with their monies.

[20] Further, the particulars of the offence alleged that the appellant obtained the monies with intent to defraud. At the time the appellant made the promise to each complainant, she did not intend to perform it or did not believe she would be able to perform it. In other words, the appellant was intentionally and consciously lying in her representations to deceive the complainants to part with their monies.

[21] The appellant submits that there were discrepancies in the amounts contained in the charges with that contained in the caution interviews. The amounts contained in the facts admitted by the appellant were consistent with the charges. The discrepancies in the caution interviews arose because the appellant was either evasive in her answers, or she exercised her right against self incrimination by refusing to answer certain questions.

[22] In any event, I do not find the discrepancies to be material. The fact is that the appellant was on bail for a while when she changed her pleas to guilty. She had the benefit of counsel while she was on bail. Counsel withdrew because of lack of further instructions from the appellant. The appellant informed the court that she was freely pleading guilty, without any pressure from anyone. After admitting the charges and the facts, the prosecution tendered the appellant’s previous convictions. The appellant disputed all her convictions. The case was adjourned for two weeks to allow the prosecution to call evidence to prove the convictions. When the case was recalled, the appellant appeared with a new counsel and admitted her previous convictions.

[23] After a further adjournment, the new counsel withdrew because the appellant had not paid his legal fee. The case was further adjourned to allow the appellant to arrange payments of restitution. Eventually when the appellant appeared for mitigation and sentence, she disputed all her previous convictions, except the last conviction for a similar offence on 27 April 2008. In mitigation the appellant did not dispute the facts she had earlier accepted. I find the appellant’s guilty pleas were unequivocal and she was not prejudiced by lack of legal representation.

[24] The appellant’s convictions are confirmed. The appeal against conviction is dismissed.

Appeal against Sentence

[25] The appellant appeals against sentence saying it is harsh and excessive. In support of the appeal against sentence, the appellant seeks leave to adduce fresh evidence that she had reimbursed some of the complainants. In her affidavit, the appellant states that she forgot to inform the Magistrate of the reimbursement because she was nervous and frightened after pleading guilty.

[26] Fresh evidence is allowed on an appeal if the evidence is relevant to the appeal, the evidence is credible and admissible and there is a good reason for not adducing the evidence in the lower court (Inoke Cumutanavanua v. State [2002] HAA086/01).

[27] While the evidence of reimbursement may be relevant to the appeal against sentence, I am not satisfied the evidence is credible. The evidence of reimbursement cannot be supported by any receipts because the appellant says she lost the documents. I do not find her explanation to be credible. In her mitigation, the appellant informed the learned Magistrate that she intended to repay the complainants. She even offered to sell her properties in New Zealand. There is nothing in the record to suggest that the appellant was frightened so as to forget to inform the court of a fact that was favourable to her. The appellant was not a stranger to the criminal justice system. She has previously been to prison for similar offence albeit she disputed some of her convictions. I am not satisfied that the appellant has shown good cause for not adducing the evidence in her mitigation in the Magistrates’ Court. The application to adduce fresh evidence is refused.

[28] The appellant was sentenced to 4 years imprisonment. In his sentencing remarks, the learned Magistrate did not refer to any sentencing principles or identify the mitigating and aggravating factors present in the case. As a matter of good sentencing practice, the court should identify the mitigating and aggravating factors and the relevant sentencing principles when imposing a sentence on an offender.

[29] The tariff for fraud offences including obtaining money by false pretence is 18 months to 3 years imprisonment (Ateca v. State [2002] FJHC 175; HAA0071J.2002S (4 October 2002); State v. Chand [2004] FJHC 53; HAA0001J.2004S (27 February 2040); Rukhmani v. State [2008] FJHC 134; HAA056J.08S (4 July 2008).) In this case, the appellant was sentenced outside the range. A sentence outside the range is justified only if exceptional circumstances are present. I find the learned Magistrate erred in imposing a sentence outside the range without referring to the exceptional circumstances to justify such a term.

[30] In Kamal Lata v. State [2006] HAA64-67/06S, the offender was convicted of a similar offence. The facts and the aggravating features were similar to this case. The Magistrates’ Court imposed a sentence of 4 years imprisonment. On appeal, the High Court reduced the sentence to 2 years imprisonment.

[31] In the present case, the complainants were ordinary people, who were desperate to migrate for greener pastures. The appellant was aware of their gullibility. The appellant obtained large sums of money from the complainants by a combination of promises and deception. The complainants have not been reimbursed. The appellant has shown persistence in committing this type of offence. These are the aggravating features.

[32] The appellant is 49 years old and is in a de facto relationship. She says she gained custody of her three year old granddaughter after her step father abused her. Although I disregard her previous convictions which are more than 10 years old, she still is not entitled for credit for previous good character because she was convicted of other similar offences in 2008. The only mitigating factor is her guilty plea. I do not consider the hardship on the appellant’s family as a mitigating factor because the appellant herself is the author of the hardship.

[33] I would pick a starting point of 2 years imprisonment, add 2 years to reflect the aggravating factors and decrease 18 months to reflect the guilty plea. The final sentence is 2½ years imprisonment. A term of more than 2 years imprisonment cannot be suspended. The sentence of 4 years imprisonment on each charge is set aside and in lieu substituted with a sentence of 2½ years imprisonment, to be served concurrently.

[34] The appeal against sentence is allowed.

Daniel Goundar
JUDGE

At Suva
23rd October 2009