Danford v State [2012] FJHC 904; HAA033.2011 (28 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO: HAA 033/2011

BETWEEN:

AMINIASI DANFORD
APPELLANT

AND:

STATE
RESPONDENT

BEFORE: Hon. Justice Mr Prabaharan Kumararatnam
COUNSEL: Appellant in Person
S.Vodokisolomone for the Respondent/State

JUDGMENT

01. Aminiasi Danford (hereinafter "the appellant") was charged for Office Breaking,Entering and Larceny contrary to section 300(a) of the Penal Code. Act 17. The Charge was filed at the Navua Magistrates Court on 03rd day of November 2008.

02. The particulars of offence were:

"Aminiasi Danford, between 29th day of February 2008 and 3rd day March, 2008 at Navua in the Central Division, broke and entered into the Ministry of Health Office and stole from therein $791.86 cash, the property of the said Ministry of Health"

03. on 7th March 2011, the charge in respect of Criminal Case No: 287/2008 was read out to the Appellant. He pleaded guilty to the charge and admitted the summary of facts.

04. On 14th July 2011, he was sentenced to a prison term of four years with a non-parole period of three years.

05. Being aggrieved by above sentence the appellant has appealed against the sentence on the following grounds:

1. The Learned Magistrate erred in law and in fact in deciding that the four years imposed be effective on a date 14/7/2011 which was supposed to be 11/4/2011.
   
2. The Learned Magistrate erred in law and facts and in fact in failing to give allowance of sentence over the appellant's guilty plea.
   
3. The Learned Magistrate erred in law and in fact in failing to consider that the offence which the appellant was charged with was an old one and should have been given a suspended sentence.
   
4. The Appellant also added that the sentence given all the circumstances of the case was harsh and excessive in light of the circumstances.
   

06. The appeal against the sentence was out of time for about three months and three days. Hon. Justice Thurairaja in his ruling dated 16/11/2011, on appeal out of time, accepted the appeal by extending the period of time.

07. The general principle of sentencing under section 15(3) of the Sentencing and Penalties Decree No: 42 of 2009 States:

"As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentence of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this part"

08. The objectives of sentencing, as set-out in Section 4(1) of the Decree, are as follows:

1. To punish offenders to an extend and in a manner, which is just in all the circumstances;
   
2. To protect the community from offenders;
   
3. To deter offenders or other persons from committing offences of the same or similar nature;
   
4. To establish conditions so that rehabilitation of offenders may be promoted or facilitated;
   
5. To signify that the court and the community denounce the commission of such offences; or
   
6. Any combination of these purposes.
   

09. Section 26 (1) of the Sentencing & Penalties Degree 2009 states:-

"On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or part of the sentence, if it is satisfied that it is appropriate to do so in the circumstances"

10. The Learned Magistrate, after considering the aggravating factors and mitigation submissions has imposed four years imprisonment with a non-parole period of 03 years.

11. The tariff for the house breaking, entering and larceny is between 18 months to 3 years, the question of suspension being reserved for young offender stated by justice madam Shameem in Tomasi Turuturuvesi v The State HAA 86/02S.The state counsel submitted that the sentence of 4 years imprisonment by leaned magistrate is well above the tariff, for this particular type of offending which is 18 months to 3 years. Hence he submitted that the appeal ground of the appellant has merits and to be allowed.

12. The appellant has previous convictions. Now he is an inmate of Korovou Correction Centre. He was initially chosen to in 2009 to be part of a sample group to undergo rehabilitation programs. According to the report submitted by the Correction Centre he had under gone several programmes successfully. The rehabilitation Department has perceived their investment with the appellant as a success. Since his discharge 2009, the appellant has purposefully cultivated seven and a half acres of his land growing vegetables and root crops. He is not only is remorseful for the wrong that he did but has proven through determination that he could become a better citizen. He has a clean record in prison without any breach record.

13. The appellant is a father of one child and sole breadwinner of the family. He is a farmer by profession. He is remorseful on what he did and promised that he would not reoffend under any circumstances. He has already spent 07 months of the sentence in Korovou Correction centre.

14. The mitigating factors were the appellant's guilty plea, cooperation with police, successfully underwent rehabilitation programme under Korovou Correction centre and express of remorse. The aggravating factors were that he broke in to the Ministry of Health Inspectors Quarters, stole $791.80 and not learned any lesson from his previous convictions.

15. In the circumstances, the sentence of 4 years imprisonment is excessive. The starting point should have been picked from the lower end of the tariff. As the sentence imposed by the leaned magistrate is well above the tariff I set aside the sentence of 4 years imprisonment imposed by the leaned magistrate.

16 I take a starting point of two years imprisonment and deduct one year for the mitigating factors and add one year for the aggravating factors. The resultant sentence is one two years which commence from 14/07/2011.

17. The remaining period of imprisonment will be suspended for three years from 28/02/2012.Suspended sentence explained.

18. Appellant has 28 days to appeal.

P.Kumararatnam
JUDGE

At Suva
28/02/2012