Nataraku v State [2011] FJHC 597; HAA027.2011 (26 September 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 027 OF 2011

BETWEEN:

KELEMEDI NATARAKU
Appellant

AND:

STATE
Respondent

Mr S. Qica for the State
Appellant in Person

Date of Hearing: 15th September, 2011
Date of Judgment: 26th September 2011

JUDGMENT

[1] On the 22nd July 2011 in the Magistrate's Court at Nadi the appellant entered a plea of guilty to one charge of burglary, contrary to Section 312(1) of the Crimes Decree, 2009. He was sentenced on the same day to twenty four months imprisonment with a minimum to be served before parole of nine months. It is against this sentence that the appellant now appeals.

[2] The brief facts admitted by the appellant below were that on the 15th July 2011 at about 8.30am, he broke into and entered a bulk house belonging to one Mohammed Kalil, with intent to steal.

[3] From a starting point of three years, the learned Magistrate deducted 12 months for the guilty plea, increasing the total by four months for aggravating features and deducting four months for mitigating features arriving at the total sentence of twenty four months.

[4] The aggravating features of this case were said by the Magistrate to be "invasion of the complainant's bulk house when he's not at home"; mitigating features were said to be the early guilty plea, a wife expecting a baby and an apology with a promise not to re-offend.

[5] The promise not to re-offend rings a little hollow in considering that the appellant has 28 previous convictions, and it is not surprising that the Magistrate did not allow for that point of mitigation in his sentence. The guilty plea at first opportunity was afforded a discount of one third of the starting point which is proper. Family circumstances (in this case pregnant wife) do not in the normal course of events deserve credit.

[6] The appellant complains that the additional time added for "invasion of the complainant's bulk house when he is not at home" is inappropriate, given that the offence in itself is an invasion of another's property. The Court agrees; this cannot be said to be an aggravating feature. The very offence of burglary is an invasion of another's property and it is irrelevant to the offence whether the owner was at home or not.

[7] Sentences for burglary under the Crimes Decree 2009 mirror sentences for burglary and breaking and entering which applied under the Penal Code. As this Court said in Kamikamica HAC 156 of 2010, the tariffs set under the Penal Code of 18 months to three years are still apposite (see Buliruarua 2010 FJHC 384 and Turuturuvesi HAA 86/02). The Magistrate was therefore quite entitled to pass the sentence that he did, it being well within the accepted tariff.

[8] It is of some concern that four months were added to the sentence for an aggravating feature which was inappropriate. Credit must be given to the appellant for this inconsistency and therefore the four months should be deducted from the sentence.

[9] The appeal succeeds to that extent; the sentence of twenty four months is quashed and a new sentence of twenty months imposed.

[10] The appellant submits that the minimum term of nine months is manifestly excessive. Minimum terms are set by the Courts when sentencing to ensure that the convict serves a large part of his sentence before being released into the community and it is for that reason that minimum terms are usually set at about 66% of the total sentence, or even more in serious cases. It could never be said that nine months minimum on a twenty four month, or even twenty month, sentence is excessive. Because this Court is not sentencing the appellant, it is unable to declare the appellant an habitual offender which he plainly is, and whilst the Court cannot sentence on the basis of an existing bad record, it does have protection of the community in mind and to that end will increase the minimum period to be served before the appellant is eligible for parole to twelve months.

[11] Sentence is twenty months.
Minimum term is twelve months.

Paul K. Madigan
JUDGE

At Lautoka
26 September 2011