Raiyawa v State [2014] FJHC 46; HAA26.2013 (10 February 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION
CRIMINAL APPEAL CASE NO.: HAA 26 OF 2013

BETWEEN:

MANOA RAIYAWA
Appellant

AND:

STATE
Respondent

Counsels: Appellant in person
Mr. F. Lacanivalu for the Respondent

Date of Hearing: 4 February 2014
Date of Judgment: 10 February 2014

JUDGMENT

1. The appellant was charged before the Sigatoka Magistrate Court 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 26th June 2013, appellant with another entered the dwelling house of the complainant as a trespasser with intent to steal and dishonestly appropriated items to the total value of $13,535.00. This was in the night when complainant was away from his house. Entry into the house was by removing louver blades. Matter was reported to the police and appellant admitted the offences in his caution interview and later assorted items were recovered.
   
3. He pleaded guilty to both charges on 4th July 2013 on the first date.
   
4. The appellant was sentenced for 2 years 10 months and 28 days imprisonment for the 1st count and 8 months imprisonment for the 2nd count with both sentences to run concurrently and non-parole period of 2 years on 6th August 2013.
   
5. This is an appeal against the conviction and sentence filed within time.
   
6. The appellant had abandoned the appeal against the conviction and only proceeds with his appeal against the sentence.
   
7. The grounds of appeal against the sentence are:
   
   • (i) That aggravating features not recognized by law was considered by the Magistrate to enhance the sentence.
     
   • (ii) That no 1/3 discount was credited for the early guilty plea in regards to count one.
     
   • (iii) That the starting point adopted by the Magistrate was outside the tariff of starting point
     
8. 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).
   
9. The Magistrate had accepted a tariff of 3 years for the offence of burglary citing cases of Tabeusi HAC 95-113 of 2010 and Isei Donumaivanua HAC 259 of 2012.
   
10. Although the learned Magistrate had followed correct Guide line judgment Tabeusi v State the tariff given there is 2 years to 3 years after trial. In State v Mucunabitu [2010] FJHC 151; HAC 017.2010 (15 April 2010) it is held that the accepted tariff is 18 months to 3 years.
    
11. The learned Magistrate had identified following aggravating factors:
    
    • (i) Burglary at night,
      
    • (ii) Damage of louver blades to gain access into the house.
      

He had added 2 years for the above.

12. Then for mitigating factors of personal circumstances and remorse, 2 years are deducted arriving at a sentence of 3 years for the 1st count.
    
13. In Basa v State [2006] FJCA 23; AAU 0024.2005 (24 March 2006) the Court of Appeal held that:
    

"The appellant suggests that the reference to the fact the plea of guilty was entered late means he was not given full credit for it. Whenever an accused person admits his guilt by pleading guilty, the court will give some credit for that as a clear demonstration of remorse. However, the amount that will be given is not fixed and will depend on the offence charged and the circumstances of each case. The maximum credit is likely to be given for offences such as rape and personal violence because it saves the victim having to relive the trauma in the witness box. At the other end of the scale, little or no credit may be given if the evidence is so overwhelming that the accused has no real option but to admit it. Where, as here, the accused has admitted the offence and the receipt of his share of the money, the delay in pleading guilty must reduce the value of the plea considerably.'"

14. It was held in Naikelekelevesi v State [2008] FJCA 11; AAU 0061.2007 (27 June 2008) that "Where there is a guilty plea, this should be discounted for separately from the mitigating factor in a case."
15. The learned Magistrate had erred by not awarding the appellant separate deduction for his guilty plea. There is merit in this ground and it succeeds.
    
16. This background warrants this Court to exercise its powers in terms of Section 256 (3) of the Criminal Procedure Decree to quash the sentence passed by the Magistrate in respect of the 1st count and pass other sentence which reflects the gravity of the offence within the acceptable range of tariff.
    
17. Accordingly, I take a starting point of 2 years and add 6 months for the aggravating factors. I deduct 6 months for the mitigating factors of personal circumstances, recovery of all items and remorse. Further 10 months to be deducted for the Guilty plea. Final sentence is 14 months.
    
18. The sentence for the 2nd count is appropriate and within the tariff.
    
19. According to the totality principle, both sentences to run concurrently.
    
20. Appellant had served 6 months and he was in remand for 34 days. Therefore period of 7 months to be deducted from the final sentence.
    
21. Appellant is not a first offender. He had admitted 14 previous convictions. Therefore a suspension of the sentence is not appropriate.
    
22. Appellant to serve 7 months imprisonment from today.
    
23. Appeal is allowed. Sentence is varied.
    

Sudharshana De Silva
JUDGE

At Lautoka
10th February 2014

Solicitors: Appellant in Person
Office of the Director of Public Prosecution for Respondent