Chand v The State [2004] FJHC 125; HAA0066.2004 (4 August 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA0066 OF 2004

BETWEEN:

ROMIT ADWIN CHAND
Appellant

AND:

STATE
Respondent

Counsel: Mr. P. Sharma – for Appellant
Mr. D. Prasad – for State

Date of Hearing: 23rd July, 2004
Date of Judgment: 4th August, 2004

JUDGMENT

Introduction

The appellant is aged eighteen (18). He was charged with an offence of housebreaking, entering and larceny [Section 300(A)] of the Penal Code (Cap.17). The particulars of that offence are largely that on the 10th of April in the morning he went to his grandmother’s house, found it vacant, gained entry by removing louver blades and stole various items. He was later arrested, interviewed and admitted the thefts. All property was recovered. He has reconciled with his grandmother.

He appeared in the Magistrates Court on the 2nd of June, 2004 and pleaded guilty to the charge. He was sentenced on the same day to 9 months imprisonment.

The Appeal

The appellant is represented. The petition lists some four grounds. The appeal was originally against conviction and sentence. However, the appellant withdrew the appeal against conviction and elected to proceed only with the appeal against sentence.

In essence the appellant submits that the sentence of 9 months imprisonment was wrong in principle and harsh and excessive in all the circumstances.

In reliance on the well worn sentencing bible by the learned author D.A. Thomas, it is argued that special care and attention needs to be taken in sentencing young first offenders. Counsel submits that the Court is generally willing to consider a rehabilitative measure wherever there seems to be a reasonable chance of rehabilitative success with a young first offender. It is further submitted that Sentences of imprisonment for young offenders are for the most part reserved for those who have already undergone some form of earlier criminal sanction or committed a violent offence.

Counsel supports his argument by reference to the Criminal High Court decision from Labasa of Jai Chand and Ram Brij v State, Criminal Appeal No. 5 of 1998 (Pathik J.).

That case involved young offenders who were sentenced to 12 months imprisonment for office breaking and larceny. At appeal my learned brother Judge set aside the original sentence and substituted a suspended sentence of imprisonment.

The appellant now seeks a suspended sentence and at best a “binding over” that might avoid a conviction against the name of one so young.

Appellant’s counsel filed helpful written submissions. The State’s position was supported by written submissions. The State did not strongly oppose the sentencing appeal but submitted that a simple “binding over” was too lenient.

The decision in the Court below

As I observed when considering bail for this appellant the learned Magistrate’s very brief decision in the court below was in error in a number of respects. Now that the conviction appeal has been abandoned the only relevant comment is that there is no indication on the record of the proper construction of an appropriate sentence.

At the time I made that comment I did not have the full court record. I have now been supplied with additional information by way of a record of the learned Magistrate’s consideration of the appellant’s application for bail.

It is important to note that the learned Magistrate observed, when considering the question of bail pending appeal, that the full mitigation was not before him at the time of sentence. He records that missing information as being the fact that the items stipulated in the charge were all recovered and that the complainant was the accused’s own grandmother who had reconciled with him.

He does, however, go on to observe that he doubts such information would have made any difference to the sentence as he considered “an attack on the grandmother’s property as an aggravating factor”. I have to disagree with the learned Magistrate. In my view on any reasonable assessment of these facts it was a fair inference that this young first offender was acting out and in some way rebelling against the strictures of his family circumstances. Therein lies his culpability. It is a fair inference that this offending occurred to mark his disrespect for the family not necessarily to steal from his grandmother and thereby brand himself as a thief for the rest of his life.

The fact that all of the property was recovered and that he reconciled his differences with the family so that they now strongly support him must mean that his culpability for the offending has been expunged. This places him in the very lowest category of culpability for this type of offending.

Decision

My learned sister Justice Shameem in Criminal Appeal No. HAA0039.2004 Navuso v The State, had occasion to consider the impact of remorse and forgiveness on the sentencing process.

Justice Shameem was there dealing with a housebreaking entering and larceny where items of considerably more value than here were stolen by an appellant who had known his victim and been friendly with him for the previous six years. When discovered the appellant totally co-operated with the police. All the items were recovered. The appellant pleaded guilty at the first opportunity. Although he was 19 years old he was sentenced to 18 months imprisonment. He appealed.

Her Honour first noted that the correct tariff for offences of housebreaking entering and larceny lie between 2 to 3 years (Malaki Tuisoba v the State, Criminal Appeal No. HAA0098 of 2002S). Her Honour thought a starting point of 2 years was justifiable.

However, the appellant was entitled to a considerable discount for his age, the fact that he had never served a term in prison, his guilty plea, his assistance in the recovery of goods and his reconciliation with the complainant.

In relation to that last fact the appellant had expressed shame and remorse and apologized to the complainant through his mother. The complainant in return had sent a message of forgiveness to the appellant.

The appellant had previous convictions including one for assault occasioning actual bodily harm. Her Honour imposed a reduced sentence of 9 months imprisonment.

I adopt the principles expressed in this judgment. The significant difference between Mr. Navuso and Mr. Chand is that this appellant has no previous convictions and because of the nature and circumstance of the offence is less culpable then Mr. Navuso.

I echo the sentiments of my sister Justice; it is unfortunate that such a young offender is convicted of an offence in circumstances such as this. The burden of being branded a thief will be carried with him for the rest of his life. He will forever have to explain why that bad mark is made against his name.

The prime issue for my consideration is whether a sentence of 9 months imprisonment is however harsh and excessive for a charge of larceny. It is not. I cannot agree that the term of imprisonment is excessive. As I have said in other decisions on a sentence appeal it is wrong in principle to “fiddle” with a sentence by partial reduction simply because it doesn’t seem fair. The correct approach is to consider whether it is harsh and excessive. If I cannot be persuaded that is so then the duration of the penalty must be left intact. That is the position I find myself in here.

The real issue is whether or not that sentence should be suspended. For clear and obvious reason it must be. Amongst those reasons are:

1. The youth of the offender.
   
2. The circumstance of the offending.
   
3. The remorse and apology of the offender.
   
4. The acceptance of the apology by not only his grandmother but his family and their complete reunion with him. They support him at this appeal.
   

In my view these are circumstances special enough to warrant the suspension of this sentence of imprisonment.

Accordingly, the sentence in the court below is quashed. I substitute a sentence of 9 months imprisonment but suspend that term of imprisonment for one year. I record that the effect of a suspended sentence has been explained to the appellant in Court.

Gerard Winter
JUDGE

At Suva
4th August, 2004