Kumar v State [2013] FJHC 632; Criminal Appeal Case 20.2013 (22 November 2013)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: 20 OF 2013

BETWEEN:

SHALVIN SANJESH KUMAR
Applicant

AND:

STATE
Respondent

Counsels : Mr R Kumar for the Applicant
Mr Alvin Singh for the Respondent

Date of Hearing : 12 November 2013
Date of Judgment : 22 November 2013

JUDGMENT

1. The appellant was charged before the Lautoka Magistrates Court on 21.11. 2012 for the offence of Burglary contrary to Section 312 (1) of the Crimes Decree No. 44 of 2009 and for the offence of Theft contrary Section 291(1) of the Crimes Decree No. 44 of 2009.
   
2. The facts of the case are that on 12.03.2012, appellant went to the complainant’s house when she was alone at home. Appellant informed her that he is a Social Welfare Officer. The complainant was 61 years old. She had felt dizzy during that time and appellant had entered her bedroom and stole a pair of gold bangles valued at $1,100.00 and Gold chain with pendant valued at $500.00 and fled from the scene. The matter was reported, investigated, appellant was arrested, interviewed and charged.
   
3. He pleaded guilty to both charges on 2.7.2013 after changing earlier plea of not guilty on 4.3.2013.
   
4. Careful perusal of the court record reveals that although the summary of facts were read over to the accused, there is no record that the summary of facts was admitted by the appellant or that he was convicted of the charges against him.
   
5. Even in the sentence of the learned Magistrate, there is no reference to this aspect that the appellant admitted the summary of facts and thereafter convicted of the charges against him. However, there is reference to conviction in the final paragraph of the sentence where the Magistrate had stated that you are convicted as charged and sentenced to 3 years 4 months imprisonment.
   
6. This was an appeal against the conviction and sentence filed within time.
   
7. The appellant had abandoned the appeal against the conviction and only proceeds with his appeal against the sentence.
   
8. The grounds of appeal against the sentence are:
   
   • (i) The sentence imposed by the sentencing Magistrate is harsh and excessive;
   • (ii) That the sentencing Magistrate did not take into account my previous good character and that I am a first offender;
   • (iii) That there is disparity to the appellant’s sentence and some other similar offence that was sentenced by other courts in Fiji.
     
9. The Magistrate had correctly identified maximum penalty for the offence of burglary according to Section 312 (1) as 13 years imprisonment and 10 years imprisonment for the offence of theft according to Section 291(1).
   
10. The Magistrate had accepted a tariff of 2-3 years for the offence of burglary citing a case of Navitalai Seru v State Crim. App. No. 84/05.
    
11. The only available case of Navitalai Seru v The State in paclii.org is Seru v State [2002] FJHC 183; HAA 0084J.2002S (22 November 2002). That is a case of larceny.
    
12. In that case Her ladyship Madam Nazhat Shameem had identified the tariff for the larceny.
    

“On count 2, the maximum sentence for simple larceny is (on a second conviction) 10 years imprisonment. The tariff, on a first conviction under sections 259 and 262 of the Penal Code, is two months to nine months imprisonment (Paula Bale - v - The State Crim. App. Npp. No. 27 of 1998, PauliasiNadali - v - Thee&#16>> Crim. rim. App. No. 29 of 1998, IowaneWainiqolo -v - The State Crip. No. 44, 45 of45 of 1998, Ronald Vikash S/u>

13. Acceptable tariff for the offence of Aggravated Burglary is in Tabeusi v State HAC 95-113/2010 and Mucunabitu v State HAC 17 of 2010 the Court accepted between 18 months to 3 years as tariff.
    
14. The Magistrate had identified a tariff of 2-3 years for the offence of theft. The Magistrate had cited Chand v State [2007] FJHC 65; HAA 30 of 2007 in this regard.
    
15. That is a case where an accused was sentenced for 7 cases together and he had 37 previous convictions at that time for similar offences.
    

"In his sentencing remarks the learned magistrate identified the correct sentence tariff band for these offences as 2 - 3 years: Vusonitoonitokalau v The State;Crim App No. HAA. HAA056/05. He picked the starting point of 3 years and gave 1 year for mitigation and guilty plea bu not nything for aggravated factors. In fairness to thto the appellant, the guilty plea should buld be accounted separately after the mitigation and aggravating factors are accounted. On the facts here, 1 year should have been added to the sentence of 2&#160 years after the miti mitigation was considered, making the cumulative total of 3 years imprisonment for the appellant's previouvictions. For the guilty plea, one third should be taken off resulting in 2 yemprisonment. Tht. This in law is the correct sentence and it is not harsh or excessive: Charlton Lanyon v The Statei; Crp NAp HAA 42.A 42."

16. Tariff for the offenctheftdiscuin several cases. In Saukilagi v Stav State [20b>[2005] FJHC 13 HAC 0021/2004 (27 January 2005) the Court accepted between 2 to 9 months as tariff for simple theft.
    
17. The Magistrate had taken a starting point of 2 years for both offences.
    
18. Then he had increased the sentence by 3 years for the following aggravating factors:
    
    • The offence committed was well planned and well executed,
    • The items were not recovered,
    • The total value of the items is quite high, ($1600)
    • Blatant disrespect to the complainant's rights to her properties,
    • Complainant victim is elderly and vulnerable,
    • Impersonating an officer of the state.
      
19. The fact that stolen items were not recovered cannot be considered as an aggravating factor.
    

This position was affirmed by Madigan J in Soko v State, [2011] FJHC 777; HAA 031.2011 (29 November 2011) where he held that "Items being recovered are often points of mitigation relied on by convicted accused persons, but it's not appropriate to reverse the point and make lack of recovery an aggravating feature."

This point was also highlighted by Nawana J in Vasuca v State [2012] FJHC 1244; HAA 03.2012(31 July 2012).

"As regards 'not all items were recovered', it must be stated that an inherent feature akin to the offences of theft and robbery is that the possessor is dispossessed of movable property temporarily or permanently. Deprivation of the property of its lawful possessor, therefore, is embedded in the offences themselves. Consequently the fact that all or some items of property were not recovered cannot be considered as an aggravating factor in offending in order to enhance the sentence. Conversely, if property is recovered, that might be a factor to mitigate the sentence but not vice-versa."

20. Then he had given a discount of 6 months for the guilty plea and further discount of 6 months was given for the following mitigating factors.
    
    • 36 years,
    • Married with one child,
    • Ask for forgiveness,
    • First offender.
      
21. Then further 8 months was deducted for the time period in remand. The Magistrate had given a final sentence of 3 years 4 months imprisonment with non parole period of 2 years 6 months. However, there is no reference to sentence for each charge and that whether the sentences for each charge to run concurrently or consecutively.
    
22. The learned Magistrate had made several errors in his conviction and sentence:
    
    • He had failed to record whether the appellant had admitted the summary of facts.
    • He had failed to record that the appellant was convicted of each charge,
    • He had failed to identify correct sentencing tariff for each offence,
    • He had considered wrong aggravating factors,
    • He had failed to give adequate discount to the guilty plea,
    • He had failed to give separate sentences for each charge.
      
23. The appellant through his counsel informed court that he does not wish to proceed further with the appeal against the conviction and that he admitted the summary of facts before the Magistrate even though it is not recorded.
    
24. Considering all above, I set aside the sentence of 3 years 4 months imprisonment ordered by the Magistrate.
    
25. I take a starting point of 2 years for the first offence of burglary and add 1 year for the aggravating factors. I deduct 9 months for the guilty plea and further 6 months for the mitigating factors identified by the Magistrate. Further 8 month is deducted for the time period in remand. Now the sentence is 13 months. From 23rd July 2013, appellant had served 4 months and therefore the time period to serve is 9 months.
    
26. For the second charge of theft, I take 7 months as the starting point and add 2 months for the aggravating factors and deduct 2 months for the guilty plea. Arriving at sentence of 7 months.
    
27. Both sentences to run concurrently.
    
28. Appeal allowed. Sentence varied.
    

Sudharshana De Silva
JUDGE

At Lautoka
22nd November 2013

Solicitors for the Applicant: Mr R Kumar
Solicitors for the Respondent: Mr Alvin Singh