Gonerogo v State - Judgment [2013] FJHC 163; HAA22.2012 (5 April 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA22 of 2012

BETWEEN:

ALIPATE TAGI GONEROGO
Appellant

AND:

THE STATE
Respondent

BEFORE : HON. MR. JUSTICE PAUL MADIGAN

Counsel : Mr. N. Sharma (L.A.C.) for appellant
Mr. J. Niudamu for State

Date of hearing : 5th February, 1st & 26th March 2013
Date of judgment : 5 April 2013

JUDGMENT

[1] The appellant appeals a sentence of 4 years, 5 months and 6 days passed on him by a Magistrate sitting in Suva on the 18th April 2012. He had been convicted on his own plea to one count of burglary, contrary to section 312(1) of the Crimes Decree 2009, and to one count of theft of goods to the total value of $15,399.24 in the course of the burglary.

[2] This Court granted the appellant leave to appeal out of time.

[3] The facts of the case were that sometime between 6pm on the 7th March 2012 and 8am on the 8th March 2012 the appellant broke into the commercial premises of Hardware Plus Shop, Nabua. The appellant worked in those premises by day as a security guard and had left an upstairs window ajar to be able to gain entry by night. After gaining entry the appellant then went to the first floor to switch off the in-house camera before going to the safe cutting open the padlocks and forcing open the safe. From the safe, the appellant stole cash and cheques then left the premises from the point of entry. The appellant was identified as a suspect when a fellow worker told the Police that he (the appellant) had sought his advice as to which bolt cutter would cut the locks in the room where the safe was. These cutters were later found near the safe. The appellant admitted the offences under caution.

[4] The appellant is 37 years old, married with 5 children and unemployed. He had asked for a non-custodial sentence because he had admitted the offence, was remorseful and wanted to provide properly for his children.

[5] In sentencing the accused, the learned Magistrate in recognition of the fact that the burglary of an employer's premises was a breach of trust took a starting point of four years' imprisonment. He then added two years for aggravating features which he said was pre-planning and breach of trust. For his plea of guilty a period of eighteen months was deducted, making a sentence of 4 years 6 months. He deducted another 25 days for time spent in remand resulting in the final sentence of four years, 5 months and 6 days. The sentence for theft was three years 6 months which was ordered to be served concurrently.

[6] The appellant's grounds of appeal are:

1. No discount was given for mitigating features.
2. He was doubly penalized for the "aggravating features."
3. The sentence was harsh and excessive.
   

[7] The maximum penalty for burglary is now 13 years imprisonment. Under the Penal Code it was life imprisonment and the accepted tariff then pertaining was two to three years imprisonment. If that was the tariff when the maximum was life imprisonment, the tariff should now be somewhat less perhaps 18 months to 36 months. The maximum penalty for theft under the Crimes Decree is ten years and where the theft is committed along with the burglary, concurrent sentences should always be passed unless there are other abnormal factors that would move the Court to make the sentence consecutive.

[8] A four year starting point for this burglary is high, but justifiable given that there was pre-planning and a gross breach of trust.

[9] What is not justifiable is to add further time to that high starting point for aggravating factors that moved the Magistrate to take a high starting point in the first place.

[10] The learned Magistrate has quite properly given a discount to the appellant for his plea of guilty but this should stand aside from the mitigating factors. No credit whatsoever was given for the mitigating features which the Magistrate himself recognized to be present. He spoke of the appellant's large family, his unemployment, his remorse ande his co-operation with the authorities. His financial insecurity also figured large in his mitigation submissions.

[11] When casting a sentence, the Court should first deal with aggravating features, then mitigating features arriving at an interim final figure. Only then should the Court as a final act reduce the sentence in recognition of the plea of guilty. To do otherwise distorts the sentence.

[12] The appeal against sentence succeeds in that mitigation factors were not allowed for and in that the aggravating features were doubly assessed resulting in an unduly harsh sentence.

[13] The sentence passed below is set aside and I proceed to sentence afresh in terms of section 256(2)(a) of the Criminal Procedure Decree.

[14] For the offence of burglary I take a starting point of 2 years. For the seriously aggravating features of breach of trust (employer's premises) and pre-planning (arranging bolt cutters) I add to that a further 2 years making an interim total of four years imprisonment. For the mitigating features of poverty, large family and co-operation with the Police I deduct one year leaving a sentence of three years. One third of that is deducted for the guilty plea making a final sentence of two years.

[15] For the theft offence I sentence the appellant to two years imprisonment to be served concurrently with the burglary sentence. This sentence for theft comprises his guilty plea and his mitigation.

[16] The sentence that the appellant will serve is now 2 years, dated from 18th April 2012. He will serve a minimum of 18 months which means he is not eligible for release until 18 October 2013.

[17] Given the breach of trust and a considerable number of previous convictions, it is not a sentence that could be suspended.

Paul K. Madigan
JUDGE

At Suva
5 April 2013