Tuilaselase v State [2015] FJHC 920; HAA33.2015 (25 November 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA 33 OF 2015

BETWEEN:

PENI TUILASELASE
APPELLANT

AND:

STATE
RESPONDENT

Counsel: Appellant in Person
Ms. J. Fatiaki for Respondent

Date of Judgment: 25th November, 2015

JUDGMENT

1. The Appellant has filed this appeal against the sentence imposed on him by the Magistrates Court of Fiji at Lautoka on 22ndof July 2015.
   
2. On the 2nd of June 2015, the Appellant tendered an unequivocal plea of guilty to one count of Theft contrary to Section 291(1) of the Crimes Decree No. 44 of 2009 and was convicted.
   
3. He was sentenced to an imprisonment of 18 months with non-parole period of 12 months.
4. Appellant's grounds of appeal can be summarised as follows:
   
   1. THAT the Learned Magistrate had erred in law and in fact in that he failed to give adequate and proper discount for the early guilty plea.
      
   2. THAT the Learned Magistrate had erred in law and fact in that he picked a higher starting point of the tariff for simple theft.
      
   3. THAT the sentence imposed is manifestly harsh and excessive in all the circumstances of the case.
      
   4. THAT the Learned Magistrate erred in law that he considered the offence itself as aggravating factor.
      
5. On the 2ndof June, 2015, the Learned Magistrate had read out the charge and explained it to the Appellant. Having understood the charge, Appellant had pleaded guilty. Then the summary of facts had been read out and explained. The Learned Magistrate had convicted the Accused upon being satisfied that he understood the facts.
   
6. The Learned Magistrate, in his sentencing ruling, had clearly stated that the conviction is entered upon his guilty plea. In his sentencing order the Learned Magistrate had not narrated the full summary of facts. However, as per the copy record of the Magistrates Court, the Learned Magistrate had read the summary of facts. Summary of facts in Appendix 'A'upon which conviction was entered are as follows:
   

"On Saturday the 18th day of April, 2015 at about 1100 hrs one Peni Tuilaselase, 39 years [B-1] of Nailaga Village, Ba stole a handbag containing a gold nose stud valued $200.00 and some loose coins $4.00 from inside a vehicle Registration No. ED 493 the property of one Birja Wati, 51 years [A-1] of Kashmir, Lautoka whilst she was driving along Tukani Street, Lautoka.

Briefly [A-1] was going for shopping in town and whilst stopping for traffic along Tukani Street [B-1] with another approached [A-1]'s vehicle and whilst one distracted [A-1] from her side the other picked her hand bag from the front passenger's seat and both fled towards the bus stand area.

One Daniel Naidu, 28 years [A-2] Enforcement Officer for Lautoka City Council whilst patrolling in their vehicle clearly saw what [B-1] and his partner had done and followed them towards the bus stand area where he was able to arrest [B-1] who was still in possession of [A-1]'s hand bag. [A-2] then brought [B-1] to the Market Police Post where he handed him over the Police Officer on duty there.

[B-1] was then escorted to the Lautoka Police Station under arrest whereby he was interviewed under caution by DC Wara and was subsequently charged for one count of Theft; Contrary to Section 291 of the Crimes Decree No. 44 of 2009. [B-1] is appearing in custody"

Discount for the early guilty plea

7. The Appellant contends that the Learned Magistrate fell into error when he failed to give adequate and proper discount for his remorse and the early guilty plea.
   
8. In his sentencing remarks, the Learned Magistrate has in fact considered the early guilty plea as a mitigating circumstance and has given a discount of six months on that account.
   
9. Section 4 (2) (f) of the Sentencing and Penalties Decree No. 44 of 2009 does provide for a reduction of sentence in recognition of offender's guilty plea.
   
10. In Rokini v State [2013] FJHC 680 (12 December 2013) the Court has noted as follows:
    

"Section 4(2) of the Sentencing and Penalties Decree provides that the Court must have regard to an offender's guilty plea in sentencing. This section has incorporated the long standing practice of the Courts to reduce a sentence where the accused has pleaded guilty".

10. Degree or proportion of discount to be given to an early guilty plea has been discussed in number of cases and it is now settled in Fiji that 1/3rd discount of the total sentence of imprisonment is desirable as a matter of practice.

11. In Ratubalavu v State [2009] FJHC 199; (10 September 2009) the Court noted:

"It has been the practice of the Courts in Fiji to give a reduction of one third in the sentence for an early plea of guilty by an accused".

12. In the case of Mahendra Singh v The State; Criminal Appeal No.AAU0036.2008 (1st April 2009) their Lordships of the Court of Appeal held that:

"A reduction of sentence by one third is the standard for a plea of guilty: Vilimone v. State [2008] FJHC 12; HAA 131-133.2007 (8 February 2008); Veretariki Vetaukulav. The State(FJCA Crim App Case No. HAA057/07); Hem Dutt v. The State (FJCA Crim App Case No. AAU0066 of 2005); Tuibua v. State (2005) FJHC 188 HAA 0677 (15 July 2005)".

13. In Suresh Lal v State HAA 020 OF 2013 [2013 November 12] it was stated that:

"It is now widely accepted that an accused person who pleads guilty to the allegations levelled against him at the 1st available opportunity will be entitled up to a reduction of a third of his or her final sentence".

14. Case law discussed above advocates that a discount of 1/3rd of the total sentence of imprisonment should be given in Fiji in cases where the accused has tendered an early guilty plea.

15. 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.' The Learned Magistrate has correctly applied this principle.

16. Having adjusted the sentence for aggravating and mitigating circumstances, the Learned Magistrate had reached a sentence of 24 months imprisonment. However, he had given only 6 months discount for early guilty plea. According to the widely accepted practice in Fiji, discussed above, a discount of 1/3rd,(equivalent to eight months) should have been given.

17. The Learned Magistrate has not stated any reason why he deviated from the existing practice and considered discount of 1/3rdis not appropriate in the circumstances of the case.

18. To meet the legitimate expectation of the Accused and in order to maintain uniformity of sentencing policy, I am of the opinion that the Appellant is justly entitled to 1/3rddiscount of his sentence. To that extent, the Appellant succeeds in his appeal.

Starting Point

19. The Appellant's contention is that the trial judge erred in selecting a starting point of 18 months imprisonment.

20. Their Lordships of the Court of Appeal in Koroivuki v State [2013] FJCA15; AAU0018.2010 (5th March 2013), made the following remarks in paragraph 27.

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this stage. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range"

21. Maximum sentence for Theft is ten years imprisonment. In Ratusili v State [2012] FJHC 1249 (1st August 2012) Justice Madigan having considered various existing decisions formulated the tariff for Theft as follows:

(i) for a first offence of simple theft the sentencing range should be between 2 and 9 months.

(ii) any subsequent offence should attract a penalty of at least 9 months.

(iii) theft of large sums of money and thefts in breach of trust, whether first offence or not can attract sentences of up to three years.

(iv) regard should be had to the nature of the relationship between offender and victim.

(v) planned thefts will attract greater sentences than opportunistic thefts.

22. The State has cited Apimeleki Rairobo Waqa v State HAA 017 of 2015 (5 October 2015) as the guideline judgment that has settled the tariff for Theft. However the Learned Magistrate has sentenced the Appellant on 22nd July 2015and hence Waqa is not applicable to the present appeal.

23. Since the Appellant had previous convictions, the tariff for theft in the present case should be between 9 months and 3years' imprisonment as per the guidelines in Ratusil.The Learned Magistrate had picked a starting point of 18 months imprisonment at the middle range of the tariff band.

24. The Learned Magistrate's selection of starting point at 18 months is not obnoxious to the principles enunciated in Koroivuki. He has considered the objective seriousness of theft committed in broad daylight in a public street. Although the Learned Magistrate did not refer to the tariff for the offence of Theft or any other applicable guideline judgment, he did however pick a starting point which is within the prescribed tariff for Theft. He has not applied wrong principles. I endorse the starting point picked by the Learned Magistrate. Hence second ground of appeal fails.

Sentence is harsh and excessive.

25. Having picked the starting point of 18 months, the Learned Magistrate, had added 9 months considering the aggravating circumstances, and deducted 3 months for mitigating circumstances.

26. He has identified the following aggravating circumstances:

1. Theft was committed in an organised manner in the company of another person.
   
2. Theft was committed in broad daylight on a busy street.
   

100. These kinds of offences are prevalent in society.
     

27. The Learned Magistrate correctly identified the first two aggravating factors but not the third. I agree with the Learned Magistrate when he concluded that the theft had committed in an organised manner. Summary of facts reveals that the Appellant had committed this offence in an organised manner with another person.

28. The Appellant had not shown any regard or respect for public tranquillity, rights of others and law enforcement of the country when he committed the theft in broad daylight on a busy street and his conduct aggravates the offending.

29. However, the fact that these kinds of offences are prevalent in society cannot be regarded as a matter for aggravation and the Learned Magistrate had fallen into error there.

30. The Learned Magistrate took into consideration the following mitigating factors:

1. He is married and his wife is expecting.
   
2. Sole breadwinner of the family.
   

100. He has asked for forgiveness.
     

31. In Raj v. State [2014 FJHC 12 (10 August 2014) Hon. Chief Justice held that the Accused's responsibility towards his family has little migratory value.

32. The Learned Magistrate has correctly rejected the second mitigating circumstance as his wife had earlier tendered an affidavit stating that she earns $ 500- $1000 per month.

33. The Learned Magistrate correctly identified the mitigating circumstances and had given a proper discount accordingly.

Offence itself as an Aggravating Factor:

34. The Appellant in his written submission has taken up the position that the Learned Magistrate erred in law and in fact by taking into account as an aggravating factor the offence itself.

35. Sentencing judge or magistrate should not take into account an element of the offence as an aggravating factor. This Court is of the view that the Learned Magistrate has not taken into account any element of the offence as an aggravating factor.

36. The Appellant was charged with one count of Theft. The elements of the offence of Theft are as follows:

a. The Accused;

b. Dishonestly;

c. Appropriated;

d. The property belonging to another;

e. With the intention of permanently depriving the other of that property.

37. The aggravating factors the Learned Magistrate took into consideration are as follows:

a. Theft was committed in an organised manner in the company of another person.

b. Theft was committed in broad daylight on a busy street.

c. These kinds of offences are prevalent in society.

38. The Appellant was not charged with Aggravated Robbery. Therefore, commission of Theft in the company of another is not an element of the offence with which he was charged.

39. The Learned Magistrate has not fallen into error when he identified commission of Theft in the company of another as an aggravating circumstance. Therefore this ground of appeal fails.

Fixing of Non Parole Period

40. In his final written submission Appellant has taken up a new ground and contended that the non-parole period imposed by the Learned Magistrate is obnoxious to sentencing principles.

41. The Sentencing and Penalties Decree 2009 provides for non-parole period in Section 18 as follows:

18.- (1) Subject to sub-section (2), when a court sentences an offender to be imprisoned for life or for a term of 2 years or more the court must fix a period during which the offender is not eligible to be released on parole.

(2) If a court considers that the nature of the offence, or the past history of the offender, make the fixing of a non-parole period inappropriate, the court may decline to fix a non-parole period under sub-section (1).

(3) If a court sentences an offender to be imprisoned for a term of less than 2 years but not less than one year, the court may fix a period during which the offender is not eligible to be released on parole.

(4) Any non-parole period fixed under this section must be at least 6 months less than the term of the sentence.

42. The sentence imposed by the Learned Magistrate is less than two years but not less than one year. So, under Section 18(1) it is not mandatory to fix a non-parole period. The Learned Magistrate has fixed a non-parole period of 12 months when he imposed a sentence of eighteen months imprisonment; that is six months less than the term of the sentence.

43. Sections 18(3) and 18(4) are the relevant sections applicable to the case in hand. Under Section 18(3) the Learned Magistrate had discretion to fix a non-parole period without violating the mandatory provision in Section 18(4). Having considered the nature of the offence, the past history of the Appellant and also the term of imprisonment, the Learned Magistrate has exercised his discretion judicially and lawfully when he fixed the non- parole period at 12 months for the sentence 18 months imprisonment.

44. The Learned Magistrate is correct when he decided not to suspend the sentence as the Appellant had previous convictions.

45. To give effect to my findings, I now proceed to sentence the Appellant afresh. I select the same starting point as the Learned Magistrate did at 18 months. I identify following aggravating factors and add 6 months to the starting point bringing the interim sentence to 24 months imprisonment.

a. Theft was committed in an organised manner in the company of another person

b. Theft was committed in broad daylight on a busy street.

46. I deduct three months in recognition of following mitigating circumstances, as was identified by the Learned Magistrate, bringing the interim sentence to 21 months imprisonment.

a. He is married and his wife is expecting.

b. He has asked for forgiveness.

47. I further deduct 8 months to give full effect to his early guilty plea bringing the final sentence to 13 months imprisonment. Having considered Section 18 (4) of the Sentencing and Penalties Decree 2009, I fix the non-parole period at7 months.

48. The sentence imposed by the Learned Magistrate is set aside. The Appellant is sentenced to 13months imprisonment with non-parole period of 7 months.

Aruna Aluthge
Judge

At Lautoka
25th November, 2015

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