Niudamu v State [2011] FJHC 661; HAA028.2011 (20 October 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 028 OF 2011

BETWEEN :

ASERI NIUDAMU
Appellant

AND:

STATE
Respondent

Mr. S. Qica for the State
Appellant in Person

Date of Hearing : 14 October, 2011
Date of Judgment: 20 October, 2011

JUDGMENT

[1] The appellant was charged in the Magistrates Court with one count of aggravated burglary contrary to Section 313(1) (a) of the Crimes Decree 2009 and two counts of theft contrary to Section 291(1) of that Decree. He was jointly charged with one other and to these counts he entered a plea of guilty on the 29th March 2011 and was sentenced on the 3rd June 2011 to eighteen months for the burglary and five months for each of the thefts, all to be served concurrently.

[2] Having been granted leave to appeal out of time, the appellant appeals these sentences on the following grounds:

(i) The magistrate had regard to inappropriate aggravating factors;
(ii) Not enough credit was given for an early plea of guilty;
(iii) The aggravating factors were erroneously applied to all three offences;
(iv) That he was "sentenced twice" for the theft count;
(v) The magistrate erroneously imposed three consecutive sentences.

[3] Both the appellant and the State have filed written submissions on the appeal.

[4] The 5th ground of consecutive sentences can be dismissed immediately. The three sentences were definitely all made
concurrent with a resultant total of eighteen months imprisonment.

[5] When casting his sentence, the learned magistrate listed seven aggravating factors to be taken into account. They were:

• Offence was preplanned
• Offence committed as a gang
  
• Property high in value
• House was damaged
• Not all items were recovered by the Police
• No attempt to compensate the victims
• Disregard shown to the property of others and disregard for their personal enjoyment of their rights in their own home.
  

Not only are some of these factors completely inappropriate to a charge of aggravated burglary, but they were equally applied to both of the theft charges as well as the burglary. The appellant is understandably aggrieved by such "heavy handedness". The aggravation in the charge is acting with others or another and consequently gang activity cannot be a further aggravating factor. Similarly when there is more than one committing an offence, there is obviously some preplanning and therefore that feature must too fall away. Lack of recovery of property and no attempt to compensate are contingencies that can only arise after the offence and therefore are irrelevant to the actual offending. The only weight they might carry is on mitigation. Obviously in all cases of burglary or robbery, there is blatant disregard shown to other peoples' property and to their right to quiet enjoyment. To penalise the accused additionally in that respect is most unfair.

[6] The only aggravating feature of merit in the magistrates' "list" is the damage done to the house, although the facts refer only to four missing louvre blades.

[7] In addition to applying inappropriate aggravating factors, it is difficult to appreciate how the same factors would be equally applicable to a charge of theft as well as a charge of aggravated burglary. When an accused is convicted, then each offence should be analysed and determination made as to what are aggravating circumstances relating to that offence. To settle on aggravating factors for one offence, and then apply them "across the board" is again iniquitous.

[8] The maximum penalty for aggravated burglary is 17 years and the now accepted tariff is between 18 months and three years (see Mucunabitu HAC 17.10). The magistrate took a starting point of 18 months to reflect the accused status as a first offender and for his young age (23 years, although he told me he was 21). For the
two theft offences he took a starting point of 5 months each. [The tarrif for theft by a first offender is two to nine months]. He increased the burglary and theft starting points by ten months for his list of inappropriate aggravating features, and then reduced the terms by two months for mitigation [co-operation, remorse and no violence], a further three months for the guilty plea, four months for the time spent on remand and one month for previous good behavior arriving back at the original starting point of 18 months for the burglary and five months for each of the two theft charges.

[9] Such an exercise can immediately be seen as artificial and contrived. The magistrate has hit on a starting point added a huge percentage for what he deemed to be aggravating features, and the "chipped" away at this addition to come back to his original starting point.

[10] This court agrees with the appellant that a two month discount on an interim sentence of 28 months for a plea of guilty at first opportunity is woefully inadequate. A discount of one third would have been far more appropriate.

[11] There is no merit in the appellant's ground that he was sentenced twice for the theft offence. There were in fact two separate theft offences for some reason and the sentences were concurrent. It makes no difference to the appellant whether he was sentenced for one or two; the sentences remain the same.

[12] There being merit in the grounds of the appellant on inappropriate aggravating features and in discount in a plea of guilty, I propose now to recast the sentence on him pursuant to section 256(3) of the Criminal Procedure Decree 2009.

[13] I adopt the same starting points as did the magistrate below that is 18 months for the burglary and 5 months for each of the thefts. The burglary being the principal charge, I use that for the adjustments to be made for and against the accused. I add four months to that for the aggravation of damage to the house (missing louvers) bringing the interim total to 22 months imprisonment. For valid mitigation of co-operation and the recovery of some items I deduct 2 months and for the clear record another 2 months, bringing the interim total back to eighteen months. Pleas of guilty must be sanctioned with meaningful discounts, dependant of course on the timing of the plea. In this case the plea was made at first opportunity and a discount of up to one third would be appropriate. I therefore deduct 6 months to bring the sentence down to one of twelve months. The appellant had already served four months in custody prior to sentence; and the sentence then is reduced to a term of eight months.

[14] The appellant asks that his sentence be suspended. The learned magistrate devoted a large part of his reasoned sentence to the question of suspension and decided ultimately in his discretion not to suspend it. The appellant is young and has never offended previously. These factors were recognised by the magistrate in his lenient starting point for the burglary. The principle of deterrence is plainly relevant; society does not condone the wanton invasion of domestic premises. The magistrate was correct in his assessment of whether to suspend or not having passed the sentence that he did, but were the sentence appropriately cast, he may have seen fit to suspend a short term of eight months. The Courts must do all they can to see that first offenders are not thrown in with hard core criminals to serve short sentences.

[15] The new and final sentences for the appellant are as follows:

(i) Aggravated burglary	(ii) 8 months imprisonment
(iii) Theft	(iv) 5 months (concurrent)
(v) Theft	(vi) 5 months (concurrent)

The appellant has already served four months of the sentence and I order that he be released from custody today, with the remainder of his sentence to be suspended for a term of two years.

[16] Suspension is explained.

Paul K. Madigan
JUDGE

At Lautoka
20th October, 2011.