Waqalevu v State [2010] FJHC 468; HAA044.2010 (25 October 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA44 of 2010

BETWEEN:

VETAIA WAQALEVU

Appellant

AND:

THE STATE

Respondent

Hearing: 8th October 2010
Judgment: 25th October 2010

Counsel: Appellant in person
Mr. L. Fotofili for State

JUDGMENT

[1] The appellant pleaded guilty to charges of burglary and theft in the Nausori Magistrate's Court and was sentenced to concurrent terms of 5½ years imprisonment and 4½ years imprisonment. He appeals against sentence.

[2] He has advanced numerous grounds of appeal in his own words. Only the complaints relating to his guilty plea and previous convictions have merits.

[3] According to the charge sheet, the appellant was charged on 21 June 2010. He was taken to the Court on the same day for arraignment. He pleaded guilty after waiving his right to counsel.

[4] The facts were that the appellant broke into the house of the complainant at night while he was attending a wedding with his family. The appellant stole household items to a total value of $1690.00.

[5] The sentencing remarks of the learned Magistrate reads:

"The maximum penalty of Burglary is 13 years and Theft is 10 years imprisonment. Looking at the severity of the offence Count 1, the appropriate starting is 5 years. I will add 1 year for the fact that the goods were not recovered plus he is not a 1st offender. He has 9 previous convictions. Mitigation and guilty plea – 6 months discount.

Count 2, I will start with 4 years with addition of 1 year for no recovery. From the 5 years, I will reduce 6 months for his guilty plea and mitigation.

Accused has similar offence and does not learn.

Count 1: Therefore I sentence the accused to 5½ years imprisonment.

Count 2: And for Count 2 the accused is sentenced to 4½ years imprisonment to run concurrent to each other."

[6] Three errors are discernible from the sentencing remarks. Firstly, the learned Magistrate treated the appellant's previous criminal convictions as an aggravating factor to enhance the sentence. Secondly, the learned Magistrate gave insufficient weight to the appellant's early guilty plea. Thirdly, the learned Magistrate failed to fix a non-parole period as required by section 18(1) of the Sentencing and Penalties Decree 2009.

[7] When the appellant was sentenced, he already had thirteen previous convictions, mostly for theft related offences. However, his last conviction was in 2002. This meant that he had not re-offended for eight years.

[8] It is settled law that an offender should not be sentenced twice for the same offence. Therefore, it follows that when an offender is sentenced for a new offence, his previous convictions have limited relevance. An offender's previous convictions deprive him of any discount based on previous good character. Previous convictions cannot be used as a matter of aggravation to enhance the sentence for the new offence. To do so will be punishing the offender twice for the same offence.

[9] The learned Magistrate considered the fact that the appellant was not a first time offender as an aggravating factor to enhance the sentence by 1 year. This was an error of law in the sentence of the appellant.

[10] Under caution, the appellant admitted the offence. He pleaded guilty upon arraignment. He expressed remorse. The learned Magistrate gave 6 months discount for mitigation and guilty plea.

[11] There is no hard and fast rule about how much discount should be given to an offender who pleads guilty. The length of reduction will depend on a number of factors such as admission made to police, timing of guilty plea and remorse expressed in mitigation. If the court is satisfied that the offender's guilty plea is evidence of contrition, then substantial reduction ought to be given in sentence.

[12] The appellant was given 1/10 reduction in sentence for his guilty plea. In my judgment, the appellant was not given sufficient discount for confession to police and entering early guilty plea.

[13] On the facts of this case, a reduction of more than 6 months should have been given for early guilty plea as evidence of contrition.

[14] For these reasons, the appeal is allowed. The sentences are reduced to 3 years imprisonment for burglary and 2 years imprisonment for theft, to be served concurrently effective from 21 June 2010. I fix a non-parole period of 18 months imprisonment for both offences.

Daniel Goundar
JUDGE

At Suva
25th October 2010

Solicitors:
Appellant in person
Office of the Director of Public Prosecutions for State