Chand v State [2010] FJHC 291; HAA018.2010 (10 August 2010)

1. The appellant appeals against a sentence of 3 years imprisonment imposed by the Magistrate of Labasa on the 14th of May 2010. The appellant filed his appeal on the same day. Stating there he was forced by the Police Officer in Labasa to plead guilty to the charge.

2. The State opposes the appeal and states that the learned Magistrate has considered all factors and imposed a reasonable sentence.

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ASHWIN CHAND s/o JAY CHAND, on the 7th day of February 2010, at Labasa in the Northern Division stole $1,500.00 cash the property of MUKESH CHAND s/o JAG MOHAN.

On 07/02/10 at 10.00a.m. at Tuatua Labasa one Ashwin Chand s/o Jay Chand (accused) 31 yrs Mechanic of Lot 22 Waqadra Nadi obtained cash of $1,500.00 from one Mukesh Chand s/o Jag Mohan (victim) 40yrs taxi driver of Tuatua Housing Labasa falsely promising him that he will provide the victim with a car engine but he failed to honor his promise and converted that money for his own personal gain.

On the above mentioned, dated time and place, accused was with the victim at his home in Tuatua, when accused promised the victim or a new car engine Accused then removed victim's car engine and waited for another new car engine to be brought by accused lorry driver from Suva to have it fitted in victim's car. Accused then demanded $1,500.00 cash as a deposit for his new engine and also for accused labours cost. Accused promise the victim that his father owns a spare parts shop at Nakasi where the engine was suppose to be brought. Accused told the victim that the whole new engine cost $3,000.00. Accused told the victim that $1,500.00 to be paid before and another to be paid after the new engine is installed. Victim gave the accused $1,500.00 in cash. After receiving the said amount of cash he went away. Victim waited for his new car engine but he didn't arrive and when the accused was contacted on his mobile it was diverted.

Matter was reported to police and DC 3490 Aisea was detailed Investigating Officer. An initial enquiry was conducted and statements were recorded. Accused was then located interviewed under cautioned where he denied the allegation and later, he was formally charged for one count of Theft: Contrary to section 291 of Crime Decree Number 44 of 2009.

5. The appellant in addition to filing the appeal, filed a written submission and made an oral submission in open court.

7. The appellant's main complaint is that he was forced by the Police to accept the responsibility and plead guilty to the charge. In other words, the appellant claims that his plea is not unequivocal.

8. I perused the original case record of the Magistrate Court of Labasa bearing case number Criminal Case No. 315/10.

9. The appellant was produced on 22/04/10 before His Worship Mr. A Wickramasooriya the Resident Magistrate of Labasa. The proceedings reveals as follows:

22/04/10
Prosecution	-	Sergeant Sautaki
Accused	-	Present
Charge read explain	-	Understand charge in Hindi
Right to counsel	-	Engage a counsel of my choice
Plea	-	Deferred
Prosecution	-	Objects for bail
		Section 18 of Bail Act
		Accused has no residential address in Vanua Levu
		Unlikely to appear in Court
		Previous criminal background
		57 previous convictions
		Previous failure to appear in Court. Convicted in 2005 and Bail forfeiture.
		Various police station requesting him as there are other investigations and cases pending.
		Seeks to be in police custody till 26th
		26th police will escort him to Nadi for hearing and bring him back.
		Produces the warrant of committal to police custody in Nadi by Magistrate Nadi.
Accused	-	I want to be released on bail to seek Legal Assistance. On26th I will be reconciling with the complainant in Nadi.
		Not to take the previous convictions into account until the conclusion of this case.
		To be bailed out, can come on an early date.
		In police custody, lot of mosquitoes, no fresh air, even in the night I can't sleep.

The police have objected for Bail on several grounds. The Accused is seeking time to engage a counsel. However he is asking to be release on bail.

Release a person on Bail to seek legal assistance is not a reasonable ground for Bail.

Previous convictions and previous character of an accused has to be considered in granting or refusing bail. Although the accused is presumed innocent the only means of grounds considering grounds under Section 18 and 19 is the Accused previous convictions and behavior. However, it will not affect the presumption of innocence.

According to Section 17(2) of the Bail Act the prime consideration is the likelihood of the Accused person appears in court. It is clear that the Accused on previous occasion has breathed bail conditions and Bail been forfeited according to the previous condition statement tendered by the police in 2005.

Furthermore, according to Section 5 (a) (b) even a person under the age of 18 years can be refused bail if he has a previous criminal conviction or has previously breached a bail undertaking or bail condition.

Therefore, I am of the opinion that the accused having 57 previous conviction and as a result of absconding bail his bail bond had been forfeiture on 5 cases in 2005 in Lautoka speaks volume of the grounds to refuse bail.

However, as the accused is not represented by a counsel, I refuse bail subject to any subsequent formal bail application by the accused.

Police to make all arrangements to comply with minimum standard of person is remanded and made available the right of fresh Air.

10. The above proceedings clearly reveals among others the following factors.
The charge was read and explained to the accused appellant. It should be placed on record that the appellant is fluent in English he submitted a written submission and he made two oral submissions before the High court. This makes me to understand that the appellant can understand at least two languages namely English and Hindi.

The Learned Magistrate has read the charge that in English and have that explained in Hindi. Considering the fact I come to a conclusion that the charge was read and explained to the accused appellant on the 22/04/10 by the Learned Magistrate.

11. The appellant was explained of his right to have Counsel the appellant has opted to "engage a Counsel of his choice". This clearly shows that the accused appellant was given the Right to have a Counsel of his own choice. Every person has the Right to have a Counsel of his own choice. If he decides to defend himself he can do so under our Laws and decided cases. In this case the appellant informed the Court that he will engage a Counsel of his choice this clearly indicates that he was given the Right of Legal Representation. The appellant's claim of the Learned Magistrate erred in Law for not advising the appellant of his right to Legal Counsel before taking a plea, is contradictory to the proceedings of the Magistrates Court. Magistrates Court record clearly proves that the appellant was given the right of Legal Representation.

12. In SIMIONE RAURA vs THE STATE Criminal Appeal 59 of 2001 (unreported judgment) Justice Shameem said that the "... the right cannot be assumed to be waived, when the Magistrate has not told the accused of at before the plea was taken". This situation does not arise here because the Learned Magistrate has explained and given ample opportunity to the appellant to have his Legal Representative.

13. The appellant was produced on the 03/05/2010 before the Magistrate where the appellant had made an application for bail and it was refused. Here again the appellant has not retained a Counsel but represented himself.

14. Finally the appellant was produced before the Learned Magistrate on the 14th May 2010. Since the appellant complains against the Magistrate, I reproduce that the proceedings of that date.

- As there is no tariff newly set I consider a tariff to be within 1 – 4 years.

- Previous convictions included larceny, robbery and all other offences, last offence committed in 2008.

- However, the accused have more than 50 previous convictions has a duty not to be re-offend. With all previous convictions has committed another offence;

15. The appellant was first informed about his right to have Counsel was on 22nd April 2010. On that day he represented himself and made submissions, subsequently on 03/05/2010 he appeared by himself and renewed his application for bail. Finally on the 14th May 2010 he had made his plea and submission in mitigation.

16. It would have been appreciated if the Magistrate had taken down the submission of the appellant verbatim, which would have given the clear picture of the understanding of the appellant to the Appellate Court. Anyhow we cannot act as machine in deciding the appeal, by reading the proceedings of the Magistrates Court we also can presume certain things what would have happened there.

17. The appellant had 57 previous convictions one of which for murder and it had gone up to the Supreme Court and the court directed for a re-trial. I am mentioning this purely for the purpose of presuming the accused person's knowledge of the Court environment. Considering all previous convictions I am convinced that this appellant has a reasonable acquaintance of the court environment and its procedures.

18. In Aseri Kopai vs The State (2002) FJHC 152; HAA0055.2002S 23 August 2002 Judge Jiten Singh says "it is not every failure to inform an accused person of right to counsel which would lead to conviction being set aside. One has to show that such failure resulted in prejudice to the accused or caused miscarriage of justice before a conviction is set aside." I agree with his Lordship's view on this point (emphasis added).

19. The appellant made a calculated oral submission before this court considering all I am convinced that the appellant is well informed of the Court environment and court proceedings. Considering all above facts, I am convinced that the appellant had been given sufficient information about his right to have legal representative. Therefore this ground of appeal fails on its own merits.

20. The appellant submits that the Magistrate had not read and explain the charge. Now I consider this ground of appeal.

21. As I discussed above the appellant was produced on the 22nd April 2010. The learned Magistrate had read the charge and explained the same to him and it was clearly recorded in the proceedings. Further it was explained to him in his mother tongue namely Hindi.

22. On the 14th May 2010 the learned Magistrate has served the disclosure to the appellant. It was recorded that the facts was admitted by the appellant. After considering the preliminary requirements the Magistrate proceeded with other formalities.

23. Now I consider charge, it is not a complicated charge. It is a very simple charge of Theft. It can be understood by a reasonable layman. Without any prejudice, I consider the appellant's knowledge on similar charges. He had been accused and convicted previously on similar charge. Therefore the appellant cannot claim that he couldn't understand without a legal counsel, cannot be accepted.

24. It will be ideal if the Magistrate follows all the necessary procedures but the available facilities and the workload of these Courts should also be considered. This is not say that the Magistrate or trial Courts can ignore the procedures but necessary procedures should be followed not all ideal and perfect procedures be followed. What are the necessary steps is known by all trained judicial officers. So I am not itemizing those here and I leave it to the trained minds.

25. The appellant's next ground of appeal is that the Magistrate has not informed him of his Right to Appeal.

26. Now I see the date of appeal of the appellant it says 14th May 2010 i.e. he had appealed on the same day where he was convicted. This question would have been appropriate if he had delayed the appeal. Since there is a prompt appeal, this ground also fails.

27. It should be mentioned here, that mentioning the period of appeal is a judicial practice and it is not mandatory but it is a preferable especially when an accused person is not represented by a Counsel.

28. I consider the major issue of the appellant's appeal. This appellant states that he was forced by the Police to plead guilty to the charge.

29. I have already reproduced the proceedings in the earlier paragraphs. Therefore I consider the merits of the grounds of appeal. The appellant was produced at least on three occasions before the Magistrate. He had not made any complaints to the learned Magistrate.

30. The Appellant was produced on the 14th May 2010 when he pleaded guilty to the charge against him. I extract the relevant portions from the proceedings it reads as follows:

31. Perusing the above proceedings of the Magistrate Court, it reveals that the appellant had plead guilty to the charge without any force or inducement. Court is a place where any person can appear and freely express his problems or any threats. Because of the powers vested with the Magistrate, on hearing any complaints he can transfer the custody of any remand prisoners to another safer place. If the appellant had complained of any force or threats the Magistrate wouldn't have taken the plea, further he would have taken stern action against the relevant persons.

32. The Appellant says he was forced to plea, but he doesn't say or explains why he did not complain to the trial Magistrate. Considering all the factors, I think it is an after thought action by the appellant.

33. In Korai vs The State (2002) FJHC 152; HAA 0055.2002S (23 August 2003) Justice Jiten Singh distinguished the case of Balecoma v The State (1996) FJHC 86; HAA0062.96 (1 January 1996). When it was discussed that the Magistrate had not asked whether there is any pressure or inducement was used against the accused. Considering both cases I am of the view that there is no evidence that this appellant was pressurized or induced to plead guilty. My finding is further supported by the Magistrate's endorsement in the Magistrates Court record states as follows not forced, not induced".

34. Now I consider whether the appellant's plea is unequivocal. In Brosseau v The Queen (1969) SCR 181 (1968.11.28) Cartwright the Chief Justice "The trial Judge is bound as a matter of Law to interrogate the accused before accepting the Plea" In the present matter it was recorded by the Magistrate that the accused was "ready for plea" this speaks a volume, a trained Magistrate will make an entry after considering all pre-requests, due to the work load they may not be able to record all minor observations and procedures but the main and major observations. I consider this observation an important entry.

35. The learned Magistrate has read the facts to the appellant and he had admitted the facts. This qualifies that the appellant was given sufficient information and knowledge of the charge leveled against him. If a person pleads guilty to a charge after receiving substantial information and knowledge it will qualified to be unequivocal plea. In Rex vs Golatham (1915) 84 L.J.K.B. 758 112 L.T. 1048 per Lord Reading CJ states that "the accused must plead guilty in Plain, unambiguous and unmistakable terms" on perusing the record I find that the accused appellant has understood the gravity of the offence and pleaded, it is on record that "he had spoken with the complainant", "he needs two months time to compensate". This qualifies that the appellant had made an unequivocal plea.

36. In the State vs Isaia Sakova (2002) FJHC 211; (2000) 1 FLR 135 (6 July 2000) His Lordship Justice (then) Gates said "it is essential that a Magistrate be satisfied that an accused is admitting facts which amount to all legal elements that go to prove the charge in question. Where the Accused is represented by Counsel, the Magistrate's task is easier when the Accused is unrepresented a more onerous burden is cast on the Court. But the Magistrate should ensure that the accused is not simply pleading guilty out of a feeling of remorse for being involved in a result as opposed to causing a result (emphasis original).

37. In the light of the above case now I consider the entries made by the learned Magistrate. Where I find that the Appellant has made a considered decision and not just emotional or out of remorse. Therefore I conclude that the plea is unequivocal and I have no reason to interfere with the conviction.

38. Considering all above factors I do see no reason to interfere with the conviction.

39. On perusing the Magistrates Court record I find the sentence imposed on the accused appellant needs consideration.

40. The learned Magistrate states there is no tariff to this offence and he considers the tariff to be within 1 – 4 years. In State vs Mucunabitu (2010) FJHC 151 HAC017.2010 (15 April 2010) Justice Madigan states as follows:

"Theft is also a new offence but is akin to the offence of larceny under the old Penal Code. The theft of items during burglary used to be part and parcel of the same offence of house breaking and larceny, but is now obviously the intention of the legislature to separate these two elements and to make theft an additional separate offence."

41. In Chand vs State (2007) FJHC 65; HAA30.2007 (11 October 2007) Mataitoga J affirmed that the tariff for Larceny is in the range of 2 to 3 year imprisonment below.

"Again this was not harsh and excessive sentence, when you consider the tariff for this offence is in the range of 2 to 3 year imprisonment. The maximum sentence for this is 10 year for the appellant given his previous conviction for felony."

42. Even though the Magistrate has not cited any cases which sets out the tariff, he had come to a reasonable tariff for the offence. I agree with the commencement of sentence at 3 year imprisonment.

43. The Magistrate has reduced one year for the early plea of the appellant I agree with that deduction also because in Veretariki Vetaukula vs The State HAA057/07 to the High court sets out that if a person plead guilty he should be given reasonable discount.

44. The Magistrate wile considering the aggravating factors he had considered the previous convictions of the appellant which is incorrect. In Saurara vs The State (2008) FJSC 43; CAV0020.2007 27 February 2008. The Supreme court of Fiji decides as follows:

"The only issue giving rise to a ground for special leave, is the use by the sentencing Judge of prior offences as aggravating factors. In our opinion it is wrong in principle to treat convictions for prior offences as aggravating circumstances attaching to a subsequent offence of the purposes of sentencing. An offender who has a significant record of prior offences is obviously unable to claim the benefit of mitigation on account of previous good character or a relatively minor criminal record. When considering the deterrent element of punishment necessarily involved in sentencing, the fact that a person has been convicted and sentenced previously for a number of offences similar to that under consideration by the sentencing court, may support a higher penalty in the current sentences by way of more effective deterrent. There are obviously limits on the extent to which sentences may be increased by reference to such considerations. It is however, strictly to regard the commission of previous offences as an aggravating circumstance in relation to the offence being dealt with."

45. Considering the above decision by the Supreme Court I find the Magistrate's considering of previous conviction is inappropriate.

46. Further the Magistrate has not given any discount to the period served by the accused appellant in the Police custody.

47. Considering the above factors I decided to give one month reduction for the period served in Police custody.

48. Since the Magistrate has considered the previous convictions as aggravating factor. I decide to give a reasonable discount for that consideration. The Magistrate had given 1 year for aggravating factors. After due consideration to other aggravating factors I decide to give 5 months deduction from 3 years.

51. I am compell to place it on record that the state counsel has not rendered any assistance towards disposing justice in this case.

52. Considering the facts of the case I am inclined to act under section 18(1) of the Sentencing and Penalties Decree of 2009. I impose 2 years as non parole period to the accused appellant.

Solicitors: - Appellant In Person
- Officer of the Director of Public Prosecutions for State

High Court of Fiji

Chand v State [2010] FJHC 291; HAA018.2010 (10 August 2010)