State v Prasad [2016] FJCA 43; AAU122.2014 (1 March 2016)

IN THE COURT OF APPEAL
[On Appeal from the Magistrates' Court]

CRIMINAL APPEAL NO: AAU122/ 2014
[Criminal Case No. 777/13]

BETWEEN:

THE STATE
Appellant

AND:

RAJNEEL RITESH PRASAD
Respondent

Coram:	Hon. Mr. Justice Daniel Goundar
Counsel:	Mr. M. Korovou for the Appellant Mr. M. Yunus for the Respondent

Date of Hearing: 17 February 2016
Date of Ruling: 23 February 2016

RULING

1. The respondent was charged with one count each of aggravated burglary and theft in the Magistrates' Court at Nasinu exercising an extended jurisdiction. He pleaded guilty to the charges, and on 26 September 2013, he was discharged without conviction and ordered to pay compensation to the victim in a sum of $200.00 in default 20 days imprisonment. The State seeks leave to appeal against the sentence pursuant to section 21(2)(c) of the Court of Appeal Act, Cap. 12. The application for leave is timely. The test for leave is whether there is an arguable error in the sentencing discretion.
2. The grounds of appeal are:
   • (a) That the learned Magistrate erred in law and in fact when exercising his discretion to order a non-conviction, when the criteria in section 16 of the Sentencing and Penalties Decree 2009 was not met;
   • (b) That the learned Magistrate erred in law and in fact when exercising his sentencing discretion by failing to provide reasons when sentencing the Respondent below the tariff for both offences.
3. The facts of the case were that the respondent in the company of others broke into the dwelling house of Subash Chand in Nasinu and stole property to a total value of $1,100.00. In mitigation, it was said that the respondent pleaded guilty and was a first time offender, and the stolen items had been recovered.
4. In his sentencing remarks, the learned Magistrate said the maximum penalty for aggravated robbery was 17 years imprisonment, and for theft, the maximum was 10 years' imprisonment. The learned Magistrate then referred to the tariffs for these offences established under the Penal Code, Cap. 17, without directing his mind to whether those tariffs should apply to the offences under the Crimes Decree 2009. The respondent was charged with the offences contrary to the Crimes Decree. In any event, after considering the tariffs, the learned Magistrate virtually ignored the tariffs and discharged the respondent without conviction saying "this order will not affect your career or future".
5. Counsel for the State submits that the learned Magistrate erred in his discretion by failing to consider that the respondent was convicted of an indictable offence (aggravated burglary) and that there was no justification to ignore the established tariff for the offence. The grounds of appeal advanced by the State, in my judgment, are arguable and for that reason the application for leave should succeed.
6. Result

Leave granted.

Hon. Mr. Justice Daniel Goundar
JUSTICE OF APPEAL

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