Chand v State [2011] FJHC 173; HAA028.2008 (18 March 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 028 OF 2010

BETWEEN

NIRBHAY CHAND
Appellant

AND

STATE
Respondent

Appellant in Person
Ms M. Fong for the State

Date of Hearing: 21 January and 8 March 2011
Date of Judgment: 18 March 2011

JUDGMENT

[1] On the 12th August 2010 in the Magistrates Court at Ba the appellant entered a plea of guilty to one charge of aggravated robbery. In particular, he was charged that on the 24th May 2010 at Ba being armed with an offensive weapon stole 10 bundles of fish worth $200.00 from Munesh Shalvin Mani f/n Mahendra Mani. He was sentenced on the 26th August 2010 to 4 years and 8 months imprisonment and in addition the Magistrate activated a prior suspended sentence of six months and ordered that he serves that consecutively.

[2] The Magistrate at Ba was hearing the case with the jurisdiction of the High Court, pursuant to section 4(2) of the Criminal Procedure Decree 2009, that jurisdiction having been devolved to him on 6th July 2010 by Order of this Court.

[3] The appellant now seeks leave to appeal his sentence on the grounds that it was harsh and excessive, that no credit was given either for his guilty plea or his co-operation with the Police, and thirdly that he was punished twice for the suspended sentence.

[4] The facts of the case were that on the relevant date the complainant was selling fish on the roadside at Raviravi, Ba when he was approached by this appellant, who was drunk. The appellant was armed with broken glass from a beer bottle and threatening the victim with the glass stole 10 bundles of fish worth about $200.

[5] The appellant has 35 previous convictions, four of which are current and the latest being a suspended sentence of six months for larceny.

[6] The Magistrate took a starting point of 4 years and added to that three years for aggravating features which he said were –

• Intoxication
• Committing the offence while serving a suspended sentence.
  

He then deducted 2 years for his mitigation which the Magistrate said consisted of –

• Guilty plea
• Recovery of items
• Co-operation with the Police.
  

He deducted a further 4 months from the sentence for the time he had spent in remand; before activating the suspended sentence.

[7] The appellant is incorrect when he submits that his plea and co-operation with Police were not considered. It is quite apparent that they were, although perhaps more weight might have been given to the discount for those considerable factors.

[8] The activation of the previous suspended sentence in this case is the cause of concern on two counts:

(i) The activation is illegal.
(ii) The appellant was punished twice for the suspended sentence.

[9] As this court has said in Atil Sharma – HAC 122 of 2010L, a suspended sentence can now only be restored in whole or part if an accused has been charged with and found guilty of the offence of breach of suspended sentence (pursuant to section 28 of the Sentencing and Penalties Decree 2009). The magistrate had no power to activate the sentence and it was not lawful for him to do. This part of the overall sentence must be removed.

[10] Secondly in his reasons for sentence the Magistrate has said that committing an offence while serving a suspended sentence is an aggravating feature. While perhaps this could have at one time been so, but to use this to increase the sentence AND then activate the sentence is a "double whammy", and grossly unjust. It would probably no longer be in the spirit of section 28 of the Sentencing and Penalties Decree 2009 to use a prior suspended sentence as at aggravating factor at all without charge for the breach.

[11] The Magistrate's starting point is lenient. A more appropriate starting point for aggravated robbery of a more petty kind as this would perhaps be between 5 to 8 years. However bearing in mind that this is an appeal which succeeds on other grounds, I leave the starting point as he has taken at 4 years. To that can be added the aggravation of intoxication (if indeed that can be seen to be an aggravating feature) of one year, increasing the total to 5 years and then the meaningful mitigation deduction of 2 years leaving a sentence of three years. Deducted from the three years is the 4 months spent on remand leaving a total term of imprisonment of two years eight months, dating from 26 August 2010. There being no charge for breach of suspended sentence, there will be no time to be served for that.

[12] The appeal succeeds and the sentence passed below is quashed. A new sentence of two years eight months is passed instead. The accused will serve a minimum term of twenty months before being eligible for parole.

Paul K. Madigan
JUDGE
At Lautoka
18 March 2011