State v Tuwere [2015] FJCA 116; AAU0067.2014 (19 June 2015)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CRIMINAL APPEAL NO.AAU 0067 OF 2014
[Magistrates' Court Criminal Case No. 1048 of 2013]

BETWEEN:

THE STATE
Appellant

AND:

ILAITIA TUWERE
Respondent

Coram : Goundar JA
Counsel : Mr. M. Delaney for the Appellant
Mr. M. Yunus for the Respondent

Date of Hearing : 25 November 2014
Date of Ruling : 19 June 2015

RULING

[1] The State seeks leave to appeal against the respondent's sentence. The respondent and his co-accused were charged with one count each of aggravated burglary and theft. The High Court extended the jurisdiction of the Magistrates' Court to hear the case pursuant to section 4(2) of the Criminal Procedure Decree 2009.

[2] On 31 October 2013, the respondent pleaded guilty to the charge of theft in the Magistrates' Court. After two months, on 6 January 2014, he was sentenced to 6 months' imprisonment suspended for 12 months. Meanwhile, the respondent remained in custody on remand for the aggravated burglary charge. On 17 April 2014, the respondent pleaded guilty to the charge of aggravated burglary. On 8 May 2014, the respondent was sentenced to 18 months' imprisonment for aggravated burglary. That term was further reduced to 7 months to reflect the respondent's remand period of 11 months. The 7 months' imprisonment was suspended for 12 months.

[3] The main complaint of the State is that the suspended sentence imposed on the respondent is unjustified, wrong in principle and manifestly lenient. It could be argued that the learned Magistrate's approach to sentencing was wrong. The charges were based on the same facts. The facts were that the respondent and his co-accused stole a laptop from a dwelling house when the owner was away. The facts surrounding the entry into the house are not clear. The laptop was later recovered. When an accused enters mixed pleas on the charges based on the same facts, the correct procedure is to postpone the sentencing on the charge for which a guilty was entered until the charge for which a not guilty plea was entered has been determined by the court. This approach maintains consistency in sentencing and the offender is punished on the total criminality involved rather than on individual offences.

[4] In the present case, while the approach may have been wrong, the sentence imposed on the respondent was within the discretion of the learned Magistrate. The main reason given by the learned Magistrate to suspend the sentence was that the respondent had been in custody on remand for 11 months. This was indeed a significant period to be in custody while on remand. Taken together with the respondent's guilty plea and remorse, the learned Magistrate decided to suspend the sentence. In my judgment there is no arguable error in the exercise of discretion by the learned Magistrate to suspend the respondent's sentence.

Result
The State's appeal is not arguable.
Leave is refused.

....................................
Hon. Mr. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Office of the Director of Public Prosecutions for the Appellant
Office of the Legal Aid Commission for the Respondent