Maharaj v State [2011] FJHC 373; HAA014.2011(L) (7 July 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 014 OF 2011(L)

BETWEEN :

DINESH MAHARAJ
(f/n Genda Maharaj)
Appellant

AND:

STATE
Respondent

Appellant in Person
Ms K. Semisi for the State

Date of Hearing : 30 June 2011
Date of Judgment: 07 July 2011

JUDGMENT
[Appeal: Aggravated Burglary]
______________________________________

[1] On the 9th December 2010, in the Magistrates' Court at Lautoka the appellant entered pleas of guilty to two counts, namely aggravated burglary contrary to section 313(1)(a) of the Crimes Decree 2009 and theft contrary to section 291(1) of the said

Decree. Having admitted a set of relevant facts he was duly convicted on each count. On the 7th February 2011, he was sentenced to 30 months for the aggravated burglary and a concurrent term of 5 months for the theft.

[2] This appellant appeals the sentence passed below on the following grounds:

(a) There is disparity between his sentences and that of a co-offender.

(b) Not enough credit for his early plea was afforded to him.

(c) Non recovery of property was wrongly found to be an aggravating feature in his sentence.

(d) The Magistrate did not consider his desire to reform.

The Facts

[3] On the 3rd July 2010, this appellant along with three other persons travelled in a taxi from Rifle Range, Lautoka and got out at commercial premises known as "Marsh and McLennan Ltd". One of the party removed a window seal of those premises and all four entered the office through that window. It was in the middle of the night and the office was unoccupied. While inside the group stole items to a total value of $9,747.50 belonging to the said company. These items consisted mainly of computers and mobile phones. After a report to the Police, the appellant was arrested on information and interviewed. He admitted the offence at first opportunity to the Police and also at first opportunity in Court.

The Sentence

[4] The Magistrate first found that aggravating features were:

• advance planning;
• part of a gang;
• property of high value;
• damage caused to the property;
• property not recovered;
• no attempt to compensate victim;
• total lack of respect of others' property rights.
  

He found mitigating features to be:

• co-operation with Police;
• present remorse.
  

[5] After correctly stating that the tariff range for aggravated burglary be between 18 months and three years, the Magistrate took a starting point of 30 months for the first count. He then added 11 months to that term to reflect the aggravating features. He then reduced that by three months for the mitigating features and a further three months for the guilty plea; thereby arriving at an interim total of 35 months imprisonment. He further discounted that term by another 5 months for the time he had been in remand arriving at a final total of 30 months' imprisonment.

[6] For the theft offence, the Magistrate took a starting point of 5 months' imprisonment adding the same eleven months for aggravating features and again reducing it by 3 months (mitigating features) and another 3 months (guilty plea) arriving at a sentence for the theft of 10 months imprisonment. He reduced this by five months again for the remand period, arriving at a final sentence of 5 months.

[7] The appellant having 14 previous convictions (4 similar) received no credit for previous good behaviour. Having considered the accused's plea for a suspended sentence, the Magistrate found that the circumstances and prior bad record did not enable him to comply, nor did his young family circumstances give him the right to further relief.

[8] The final sentences of 30 months and 5 months respectively were ordered to run concurrently. He was ordered to serve a minimum term of 20 months' imprisonment.

Analysis

[9] One co-offender of the appellant (Kumal Kamlesh Sami) was sentenced to the same term of 30 months. However as he was only 18 years old, the Court ordered that he be eligible for parole after only 12 months.

[10] This appellant's circumstances are entirely different and the ground of appeal on disparity of sentence must fail.

[11] It is quite apparent that after co-operating with the Police and confessing his part in the crime to them, this appellant entered pleas of guilty in the Court below the very first time the charges were put to him. For this he should have received more credit than he did. The magistrate gave him 3 months credit on a sentence of 30 months which is but ten percent. A plea of guilty at a very early stage should attract a discount of thirty percent with decreasing percentages allowed the later the plea is tendered.

This ground of appeal finds favour with the Court.

[12] The list of aggravating features found by the Court below reveals factors that cause some concern to this Court. Firstly, on a charge of aggravated burglary where the aggravation is acting in concert with others, it can never be an aggravating feature that a particular accused was "part of a gang". That aggravation is intrinsic to the offence: the appellant here has been punished twice for being in company of others. Secondly it is difficult to fathom why the Magistrate in his sentence has found that none of the property was recovered and therefore this was an aggravating factor. The appellant submits verbally to me that all of the property he obtained from the crime was delivered up to the Police.

There is no evidence on record one way or the other. The State concedes that two of the computers taken valued together at $4,470 were recovered; but other items were not. In these circumstances, I give the benefit of the confusion to the appellant and I find that his proceeds of crime were recovered. To this extent, his ground (c) succeeds.

[13] Two of the Magistrate's "aggravating features" are disallowed, there being no basis for them. We are left then with relevant aggravating features of advanced planning, although there is no evidence of that on record, damage caused to the property, property of high value and no attempt to compensate. A "total lack of respect to others' property rights" is again inherent in every charge of theft. I would consider in the circumstances that a correct enhancement of the 30 months starting point for aggravation by relevant factors to be six months.

[14] The Magistrate, although being correct in both his starting point and by adding time for aggravating factors and diminishing time for mitigating features, has unfortunately approached his sentence in a manner which is inconsistent with current sentencing practice in this jurisdiction.

[15] It is now accepted that a starting point is taken, adjusted for aggravating and mitigating features reaching a final sentence. This will be done on the more serious (or "base") offence and sentences for other offences will be made concurrent, consecutive or partly concurrent to this "base". It is not current practice to add the same aggravating features to every offence that he is sentencing for as the Magistrate has done in this case with the theft offence. By doing so, it means that the convict is being punished twice or more for what the sentencing tribunal regards as aggravating features.

[16] With the greatest respect to an otherwise meticulous and careful Magistrate, the now accepted way he could have approached this sentence is as follows:

Aggravated burglary: starting point 30 months, aggravating features add 6 months – mitigating features deduct 3 months; time in remand deduct 5 months, giving a total of 28 months. A discount for early plea of guilty – 9 months – giving a final sentence to be served of 19 months.

Theft – starting point 5 months. (Nothing else to adjust because that has been effected in the "base" sentence); concurrent to the 19 months.

[17] And so I now allow the appeal to the extent that the term of 30 months imprisonment is quashed and a new term of 19 months' imprisonment is imposed –

[aggravated burglary - 19 months

Theft - 5 months concurrent]

The appellant will serve a minimum term of 14 months commencing 14 February 2011 before being eligible for parole.

Paul K. Madigan
JUDGE
At Lautoka
07 July 2011