Sharan v State [2011] FJHC 170; HAA002.2011 (17 March 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No. HAA 002 of 2011

BETWEEN

NILESH SHARAN
Appellant

AND

STATE
Respondent

Appellant in Person
Mr. L. Sovau for the State

Date of Hearing: 9 March 2011
Date of Judgment: 17 March 2011

JUDGMENT

[1] On the 4th day of November 2010 in the Magistrates Court at Lautoka the appellant entered a plea of guilty to one count of larceny (simpliciter) and was convicted of the charge. On the 29th December 2010 he was sentenced to a term of imprisonment of 18 months. It is against this sentence that the appellant appeals.

[2] The facts disclosed below were that on the 10th September 2009 this appellant was discovered to in possession of a pair of fog lights and a bull bar which had been removed from a vehicle kept at the Vunato yard of Merchant Finance Limited. It transpired that the accused was employed as a security guard at the said yard as instructed by his employer Westin Security. The accused admitted under caution that he had stolen the parts.

[3] The appellant bases his appeal on the following grounds:

(a) That the Magistrate has sentenced him for the wrong offence.
(b) That not enough discount was given for his strong mitigating features.
(c) That the discount for a plea of guilty was minimal.
(d) That in all the circumstances, the sentence was harsh and excessive.

[4] The appellant is 25 years and married. He earns $150 and is the sole breadwinner for his family. He has a clear record.

[5] The Magistrate found that aggravating features of this case were breach of trust, and prior planning and in turn found that mitigating features were recovery of the property, remorse and co-operation with the Police.

[6] The Magistrate took 18 months imprisonment as a starting point, then added five months for the aggravating features. He reduced the sentence by 3 months for mitigating circumstances, a further reduction of one month for his "disadvantaged personal background" and one further month for his plea of guilty; resulting in an overall sentence of 18 months. He found that because this was a breach of trust case, he could not suspend the sentence.

[7] The appellant's first ground of appeal has much force. The Magistrate in coming to his sentence analysed in detail and very eruditely, a line of cases dealing with larceny as a servant before coming to his starting point. He directed himself that the "tariff" for the offence was between 18 months and three years.

[8] Such a finding by the learned Magistrate is unfortunate because the accused/appellant was not charged with larceny as a servant but larceny (simpliciter). The very reason for that charge is that the accused was not the victim's "servant". He was employed as a security guard by a third party to work in the car yard. This point is very fairly conceded by Mr. Sovau for the State.

[9] The Magistrate quite correctly, in passing, mentions that the tariff for larceny by a first time offender is two to twelve months, and it is this band that he should have adopted when fixing a starting point.

[10] The appellant's mitigation was impressive. He is clearly very remorseful and indeed I could see that myself during the hearing, he co-operated with the Police at all stages, he is a first offender and actively sought forgiveness.

[11] The accused entered a plea of guilty, but not at the earliest opportunity. It was entered one year after first appearance. The Magistrate allowed one month's discount for this plea. Late or not, one month is just not enough to reflect saving of Court's time, dispensing with witnesses and generally enabling expedition of justice. Generous discounts for pleas of guilty when known abroad, are obviously in the interests of speedier justice. Until the Court of Appeal rules on the worth of pleas of guilty, a ruling long overdue, it has been the practice of the Courts to allow up to 33% reduction in sentence for a very early plea, and for lesser percentages dependant on the timing of the plea. An "eve of trial" plea can be discounted by up to 20%. This plea was certainly not an "eve of trial" plea. The accused had appeared only 5 times in Court when the matter was mentioned, and when he did plea, no hearing date had been set. A more appropriate discount for the plea would have been at least 2 if not 3 months.

[12] The Magistrate has made "planning" part of the aggravating features in this case. The difficulty with that finding is that there is no evidence of planning in the facts or anywhere else on file. The facts themselves suggest a spontaneous, spur of the moment theft.

[13] Pursuant to my powers under section 256 of the Criminal Procedure Decree 2009, I quash the sentence below and sentence this appellant afresh.

FRESH SENTENCE

[13] The accepted tariff for the offence of larceny being between 2 and 12 months (Seru [2002] FJHC 183 per Shameem J), I take as a starting point a term of imprisonment of nine months. For the added aggravation of being in breach of trust in that the accused was employed to guard the property I add to that a further 3 months bringing the interim total to 12 months. For being a first time offender with a clear record I deduct from that three months bringing the total to nine months. For the plea of guilty, although not at the first opportunity I deduct from that sentence a further 2 months meaning that he will serve a term of 7 months.

[14] The Court is impressed with the remorse shown by the accused and for his pleas for forgiveness. Short terms of imprisonment should be avoided if at all possible. He is young with a clear record.

[15] This appellant has served 2 ½ months of his sentence already and I order that his seven month sentence starting from December 30, 2010 be suspended for a term of two years. He must now be released today to serve the remainder of his suspended sentence.

[16] A suspended sentence is explained.

Paul K. Madigan
JUDGE
At Lautoka
17 March 2011