Nakadi v State [2010] FJHC 245; HAA032.2010 (6 July 2010)

IN THE HIGH COURT OF FIJI
IN SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 32/2010

BETWEEN:

JOSEVATA NAKADI
Appellant

AND:

STATE
Respondent

Counsel
Appellant - In Person
Respondent - Ms Leweni for the State

Date of Hearing: 30th June 2010
Date of Judgment: 6th July 2010

JUDGMENT

[1] The Appellant Josevata Nakadi preferred an appeal against the sentence imposed by the Magistrate of Nasinu, on the 7th May 2010.

[2] The Appeal was in a form of a letter to the Chief Registrar, when the matter was taken up for hearing he submitted a written submission, which is filed of record.

[3] The Appellant confined his appeal only against the sentence.

Facts of the Case

[4] As per the summary of facts the Appellant has stolen 3 mag wheels worth of $487.50 from the residence of Janki Ram at Nakasi.

[5] This appellant loaded three mag wheels in a taxi on the 24th April 2010, when he was travelling, the taxi driver Kolonio Dokonivalu, was suspicious of the appellant and handed him over to the Police Officer who were on duty at RAU.

[6] On investigation it was found these are stolen mag wheels and the appellant had admitted in his cautioned interview.

[7] The appellant was charged in the Magistrate Court of Nasinu under Section 291 of the Crimes Decree where he pleaded guilty to the charge.

[8] On accepting the plea the learned Magistrate had convicted the appellant, which I too agree.

[9] When considering the sentence the learned Magistrate had considered the following factors;

"(a) Pleaded Guilty at First Reasonable Opportunity – Save the Court’s Time.

(a) Unemployed.

(b) Sole bread winner.

(c) Expressed remorse in Court".

[10] When the Magistrate considering the aggravating factors the learned Magistrate considered the following;

"Aggravating Factors

(a) Stole 3 Mag Wheels from the complainant victim.

(b) Total value of goods stolen - $487.50

(c) He has not learned from his previous convictions and has committed similar serious offences in the past".

[11] It is observed that the Magistrate has considered the previous conviction as an aggravating factor.

[12] In Saurara vs State (2008) FJSC 43; CAV0020, 2007 (27.2.08) 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 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 sentence 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".

[13] Therefore considering the previous convictions as aggravating factor by the Magistrate is inappropriate.

[14] Further the Magistrate has not set out the reason for him to impose 9 months imprisonment. Magistrate’s sentence states as follows:

"The Law – Crimes Decree No.44 of 2009 – 13 years."

"I have carefully considered the Summary of Facts, Mitigating Factors and Aggravating Factors and have decided to Sentence you to 9 months imprisonment with effect from today".

[15] Now, I consider the above issue. The learned Magistrate has not accounted his decision. In my view the decision which affects the rights of the person should be transparent and accountable. Conclusion of the Magistrate may be correct, but he should set out the reason for his conclusion. This is a well accepted practice and it is mandatory under SCC 142(1) (b) of the Criminal Procedure Decree of 2009.

[16]

"142 (1) Subject to sub-section (2), every such judgment shall, except as otherwise expressly provided by this Decree, be written by the judge or magistrate in English, and shall contain –

(a) The point or points for detention;

(b) The decision and the reason for the decision; and

(c) Shall be dated and signed by the judge or magistrate in open court at the time of pronouncing it".

(Emphasis added)

[17] In Lasarusa Rakula vs The State Cr. App. AAU0018. 2004, 26th November 2004.

"[The trial judge] gave no reasons for the decision. There should always be clear reasons given for allowing any appeal either against conviction or sentence. In the present case, although the total sentence the appellant will serve is reduced by 2 years the learned judge increased the sentence on both robbery charges. Clear reasons are especially important when sentences are increased".

[18] It is well established Judicial Practice that the "Justice must not only be done, but must be seem to be done" stated in R.V. Sheppard (2002) 1 SCR 869 at para.15 (Sheppard). I strongly believe that the Judicial Officers are accountable on their decisions. We should take decision after evaluating the Evidence and factors before us. Once we take a decision we should give our reasons for that decision. This ultimately ensure the integrity of the System as a whole and support the repute of the administration of Justice in the public eyes.

[19] Considering all above factors, I find that the learned Magistrate has not given reasons for his sentence thereby he has not followed the proper legal Principles, therefore, I set aside the order of the Magistrate regarding the sentence.

[20] Considering the period served in Prison by the Appellant and time consumed in the High Court it will be unfair to send this case back to Magistrate Court for proper sentencing therefore, with the Powers vested with the High Court under, High Court Rules 1988. Rules 55 (7) (5):

"The Court may give any judgment or decision or make any order which ought to have been given or made by the court, tribunal or person and make such further or other order as the case may require or person and make such further or other order as the case may require or may remit the matter with the opinion of the Court for rehearsing and determination by it or him".

[21] The charge against the appellant was as per the information is as follows.

Charge

Statement of offence (a)

"THEFT; Contrary to section 291 of the Crimes Decree No.44 of 2009.

Particulars of Offence (b)

JOSEVATA NAKADI between 24th day of April, 2010 to 25th day of April, 2010 at Nasinu in the Central Division, stole three (3) Mag wheels valued at $487.50, the property of JANKI RAM".

[22] See 291 (1) of the Decree 44 of 2009 reads as follows:

"291 (1): A person commits a summary offence if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property.

Penalty – Imprisonment for 10 years."

[23] In State vs Mucunabitu [2010] FJHC 151; HAC017.2010 (15 April 2010) Madigan J. regarding theft under the new Crimes Decree 2009 stated the following:

"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 housebreaking and larceny, but it is now obviously the intention of the legislature to separate these two elements and to make theft an additional separate offence".

[24] In Chand vs State [2007] FJHC 65; HAA 30.2007 (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 2 to 3 year imprisonment. The maximum sentence for this is 10 years for the appellant given his previous conviction for felony".

[25] Considering the above line of cases the tariff will be 2 to 3 years imprisonment.

[26] Considering the nature of the offence I impose 2 years imprisonment for committing the offence of theft.

[27] Considering the facts of the case I do not see any aggravating factors therefore nothing added to 2 years imprisonment.

[28] Considering your plea at the 1st instance I am giving the benefit of ⅓ as set out in Veretariki Vetaukula vs The State, High Court Crim App Case No: HAA057/07, followed in Hem Dutt vs The State, FCA Crim App Case No: AAU 0066 of 2005 and Aliki Vilimoni vs State, FJHC 12; HAA 131-132, 2007, now your sentence will be 16 months. I wish to place it on record that there is no rule to give remittance of one third, if the Accused Person pleads at the first instance, the trial Court can consider all facts and give reasonable reductions.

[29] The accused appellant has submitted the following factors in mitigation at the Magistrate Court;

1. He is 30 years old with one child.
   
2. Unemployed.
   
3. Asking for forgiveness.
   
4. Looking after his family.
   
5. He has a school going child.
   

[30] Considering the above factors I inclined to give a reduction of 7 months. Now the sentence is 9 months.

[31] In Talim vs The State [2003] FJHC 165; HAA0059J.2003S (23 December 2003), where the appellant in this matter was charged with shed breaking entering and larceny and was subsequently sentenced to 9 months imprisonment, Shameem J stated that:

"A starting point of 3 years imprisonment was quiet appropriate. The Learned Magistrate appears to have given substantial discount for the guilty please, good character and reconciliation. Another court might not have been inclined to impose a sentence less than 12 months imprisonment. Certainly a suspended sentence, despite good character, is not an appropriate for an offence of this nature".

[32] Considering the offence and this line of judgments I do not intent to suspend your sentence.

[33] Director of Public Prosecution did not appeal against the sentence and the State Counsel who appeared also didn’t make any application to enhance the sentence. Therefore the Court is not enhancing the sentence.

[34] On perusing the Judgment of Shameem J in Talim vs State. There is a reference of Nakidi vs The State (1998) FJHC 58: HAA 0007J (27 April 1998). I referred this appeal and I find that the Judgment referred there is of this Appellant. Justice D Pathik had stated as follows "He said that he is 18 years of age and that he will not re-offend, very unfortunately he is before the High Court after several convictions. This Court severely warn him to not commit any offence in the future, if he commits, he is not considering his family and himself, further he is not truthful in his remorse therefore he will be severely punished.

[35] Considering all above facts his appeal allowed and he is sentenced to 9 months imprisonment.

S Thurairaja
JUDGE

At Suva
Tuesday 6th July 2010

Solicitors:
Appellant in Person
Office of the Director of Public Prosecutions, Suva for the State