Uradamudamu v State [2019] FJHC 729; HAA004.2019Lab (25 July 2019)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL CASE NO. HAA 4 OF 2019

(Labasa Magistrate’s Court Criminal Case No. 520 of 2018)

BETWEEN:

1. NAVITALAI URADAMUDAMU

1^ST APPELLANT

2. DHARMEN SINGH

2^ND APPELLANT

A N D:
THE STATE
RESPONDENT

Counsel: 1^st Appellant In Person
Ms. S. Sharma for 2^nd Appellant
Mr. D. Rao for State
Date of Hearing: 22^nd May 2019
Date of Judgment: 25^th July 2019

J U D G M E N T

Introduction

1. The first and second appellants had been charged in the Magistrate’s Court in Labasa for one count of Theft, contrary to Section 291 (1) of the Crimes Act. The particulars of the offence are that:
   

Statement of Offence (a)

THEFT: Contrary to Section 291 (1) of the Crimes Act of 2009.

Particulars of Offence (b)

NAVITALAI URADAMUDAMU and DHARMEN SINGH between 9^th day of December 2017 and 11^th day of December 2017, at Labasa in the Northen Division, dishonestly appropriated 8 x bags of frozen Chicken valued at $130.00 each, all to the total value of $1,040.00, the property of GOODMAN FEILDER with the intention to permanently deprive the said GOODMAN FEILDER.

2. The first appellant pleaded guilty to the offence on the 28th of September 2018 and the second appellant pleaded guilty to the offence on the 27th of November 2018. Subsequently, the learned Magistrate had convicted them to the said offence and sentenced them to a period of 18 months imprisonment on the 22nd of March 2019. Aggrieved with the said sentence, the two appellant filed this appeal on the following grounds that:
   
   1. Grounds of Appeal of First Appellant
      
      1. That the representing counsel fall in error in informing us of our rights to repay the amount stolen, as we were willing to repay.
         
      2. That our sentence was less than 2 years and we oversee that it is unfair as the magistrate could have imposed non-custodial sentence of at least a suspended sentence as in section 26 of the sentencing and penalties act 2009 where the sentence is less than 2 years imprisonment, the magistrate court can imposed a suspended sentence. As in remarks for Goundar J in Muskaan Balgan vs State (2012) HAA 31/115 24^th April 2012 as [20] in considering to suspend a sentence.
         
      3. The magistrate fell in error in mentioning in the aggravating factor that breaches of trust as we were both employed there, hence, I was
         

an employee of a different company and we changes at every 8 hours and circulate in other work places.

4. That my other fellow colleagues accused was the mastermind, as he is employed for the company and in his arrival he did not clarify with me the cause of his arrival, and just inform me to let the gate open for him to unload stuffs.
   

2. Ground of Appeal of the Second Appellant
   
   1. That the learned magistrate erred in law and in fact in failing to properly consider the value of the item as the statement dated 31^st December 2017 of Sheik Mohammed Rizwan the General Manager of the complainant states that the value was $1, 690.00 whereas in the chart sheet the value was $1,040.00.
      

2. That the learned magistrate erred in law and in fact in not taking into account approximately ten months delay from the date of the commission of the allege offence to the date the appellant was charge as no explanation was given by the prosecution.
   
   3. That the learned magistrate erred in law and in fact in picking two years imprisonment as a starting point when there was nothing before the magistrate conclude that the offence was pre-planned or sophisticated one.
      
   4. That the learned magistrate erred in law and in fact in failing to consider suspending this sentence when there was only one aggravating factor of breach of trust and there were compelling mitigating factors.
      
   5. That the learned magistrate erred in law and in fact in not taking to it account the willingness of the appellant to restitute the complainant which constitute to a genuine remorse and special circumstances to impose a suspended sentence.
      
   6. That the learned magistrate erred in law and in fact in passing the sentence after a lapse of four months from the date the appellant pleaded guilty and to the date of the sentence which prejudice the appellant.
      

The Law

3. The Fiji Court of Appeal in Kim Nam Bae v The State [1999] FJCA 21; AAU 0015 of

1998 has discussed the applicable approach of the Appellate court in intervening into the sentences imposed by the lower courts, it states:

‘It is well established law that before this court can disturb the sentence, the appellant must demonstrate that the Court below fell into error in exercising its sentencing discretion. If the trial judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some of the relevant considerations, then the appellate court may impose a different sentence.”

4. The Fiji Court of Appeal in Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015) held that:
   

“In determining whether the sentencing discretion has miscarried this Court does not rely upon the same methodology used by the sentencing judge. The approach taken by this Court is to assess whether in all the circumstances of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies within the permissible range. It follows that even if there has been an error in the exercise of the sentencing discretion, this Court will still dismiss the appeal if in the exercise of its own discretion the Court considers that the sentence actually imposed falls within the permissible range. However it must be recalled that the test is not whether the Judges of this Court if they had been in the position of the sentencing judge would have imposed a different sentence. It must be established that the sentencing discretion has miscarried either by reviewing the reasoning for the sentence or by determining from the facts that it is unreasonable or unjust.”

5. Goundar JA in Saqainaivalu v State [2015] FJCA 168; AAU0093.2010 (3 December 2015) has discussed the applicable principles of reviewing of a sentence by an appellate court, where his Lordship held that:
   

“It is well established that on appeals, sentences are reviewed for errors in the sentencing discretion (Naisua v The State, unreported Cr. App. No. CAV0010 of 2013; 20 November 2013 at [19]). Errors in the sentencing discretion fall under four broad categories as follows:

1. Whether the sentencing judge acted upon a wrong

principle;

2. Whether the sentencing judge allowed extraneous or

irrelevant matters to guide or affect him;

3. Whether the sentencing judge mistook the facts;
4. Whether the sentencing judge failed to take into account

some relevant consideration.

Reasons for sentence form a crucial component of sentencing discretion. The error alleged may be apparent from the reasons for sentence or it may

be inferred from the length of the sentence itself (House v The King [1936] HCA 40; (1936) 55 CLR 499). What is not permissible on an appeal is for the appellate court to substitute its own view of what might have been the proper sentence (Rex v Ball 35 Cr. App. R. 164 at 165)”

Ground I of the Second Appellant

6. For the convenience of determination, I first draw my attention to the first ground of appeal of the second appellant, which is founded on the ground that the learned Magistrate erred in law and fact in failing to take into consideration that the value of the stolen property as stated in the charge was different to the value given by the Manager of the Complainant company in his statement.
   
7. According to the charge and the summary of facts, the value of the stolen property was $1040. Both the appellants admitted the summary of facts in court and made no issues regarding the value of the stolen property. At no point of time, the learned Magistrate was informed about the statement of the Manager of the complainant company. Therefore, the learned Magistrate has accurately taken into consideration the value of the stolen property as $1040.00 as stated in the charge and the summary of facts.
   
8. The learned counsel for the second appellant in his submissions has argued that the confusion in relation to the value of the stolen property had prevented him to effectively execute the restitution as the company had demanded them the sum as claimed by the Manager in his statement, that was $1,690.00. However, neither the second appellant nor his counsel had informed the court about such an issue during the course of the proceedings. Therefore, I do not find any merit in this contention.
   
9. In view of the reasons discussed above, I do not find any merit in this ground of appeal.
   

Ground II of Second Appellant

10. I now take my attention to the second ground of appeal of the second appellant, which is based upon the contention that the learned Magistrate failed to take into consideration the delay of ten months between the commission of the offence and the institution of this matter in court. The second appellant claims that the delay has breached his rights that has been stipulated under the constitution. However neither the counsel nor the appellant specifically stated what is the constitutional rights that he is claiming for.
    
11. Sections 14 and 15 of the Constitution deals with the person who is being charged with an offence and not a person who is being under the police investigation. Hence, the second appellant could not rely on the rights as stipulated under Section 14 and 15 of the Constitution. Therefore, I do not find any merits in this ground as well.
    

Ground III of the Second Appellant

12. The third ground of the appeal of the second appellant is founded on the contention that the learned Magistrate has erroneously selected two years as the starting point, when there is no evidence before him to conclude that the offence was a pre-planned or sophisticated one.
    
13. The Supreme Court of Fiji in Qurai v State [2015] FJSC 15; CAV24.2014 (20 August 2015) has extensively discussed the sentencing principles and approaches under the Sentencing and Penalties Act, where Marsoof J held that:
    

“Guidelines for sentencing contained in the Sentencing and Penalties Decree of 2009 require a sentencing court to have regard to, amongst other things, the current sentencing practice and the terms of any applicable guideline judgment (section 4(2)(b) of the Decree), whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so (section 4(2)(f) of the Decree), the conduct of the offender during the trial

as an indication of remorse or the lack of remorse (section 4(2)(g) of the Decree) and the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence (section 4(2)(j) of the Decree).

The Sentencing and Penalties Decree does not provide any specific guideline as to what methodology should be adopted by the sentencing court in computing the sentence, and subject to the current sentencing practice and terms of any applicable guideline judgment, leaves the sentencing judge with a degree of flexibility as to the sentencing methodology, which might often depend on the complexity or otherwise of every case.

In Fiji, the courts by and large adopt a two-tiered process of reasoning where the sentencing judge or magistrate first considers the objective circumstances of the offence (factors going to the gravity of the crime itself) in order to gauge an appreciation of the seriousness of the offence (tier one), and then considers all the subjective circumstances of the offender (often a bundle of aggravating and mitigating factors relating to the offender rather than the offence) (tier two), before deriving the sentence to be imposed. This is the methodology adopted by the High Court in this case.

It is significant to note that the Sentencing and Penalties Decree does not seek to tie down a sentencing judge to the two-tiered process of reasoning described above and leaves it open for a sentencing judge to adopt a different approach, such as "instinctive synthesis", by which is meant a more intuitive process of reasoning for computing a sentence which only requires the enunciation of all factors properly taken into account and the proper conclusion to be drawn from the weighing and balancing of those factors.

In my considered view, it is precisely because of the complexity of the sentencing process and the variability of the circumstances of each case that judges are given by the Sentencing and Penalties Decree a broad discretion to determine sentence. In most instances there is no single correct penalty but a range within which a sentence may be regarded as appropriate, hence mathematical precision is not insisted upon. But this does not mean that proportionality, a mathematical concept, has no role to play in determining an appropriate sentence. The two-tiered and instinctive synthesis approaches both require the making of value judgments, assessments, comparisons (treating like cases alike and unlike cases differently) and the final balancing of a diverse range of considerations that are integral to the sentencing process. The two-tiered process, when properly adopted, has the advantage of providing consistency of approach in sentencing and promoting and enhancing judicial accountability, although some cases may not be amenable to a sequential form of reasoning than others, and some judges may find the two-tiered sentencing methodology more useful than other judges.

14. In view of the above comprehensive passage, the sentencing processes is not only limited to two tire approach. As long as the sentencing Magistrate has taken into consideration the relevant facts as stipulated under Section 4 of the Sentencing and Penalties Act and reached to a sentence within the acceptable tariff range, the appellate court would not interfere to disturb the said sentence.
    
15. According to the summary of facts, the first appellant had called the second appellant to inform that the workshop was empty. They then had agreed to unload the bags of frozen chicken and carried out this crime. Therefore I find the learned Magistrate’s conclusion that it was a pre-planned and sophisticated crime is not wrong. Accordingly, I find no merits in this ground.
    

Ground VI of Second Appellant

16. The sixth ground of appeal of the second accused is founded on the contention that the learned Magistrate sentenced him, four months after he pleaded guilty to the offence. According to the record of the proceedings in the Magistrate’s Court, the matter had adjourned twice for the sentence. The first instance, the Magistrate was on leave and the second occasion the learned Magistrate was attending to a workshop. The second appellant has not specifically stated how the delay of four months has prejudiced his rights. Therefore, I do not find any merit in this ground as well.
    

Grounds III, IV of the First Appellant

17. I now take my attention to determine the 3rd and 4th grounds of appeal of the first appellant. The first appellant argues that he was not employed by the complainant company therefore, his action could not be considered as a breach of trust. Moreover, the second appellant was the mastermind of this heist and not him, therefore, his culpability to the crime is minimal in comparison to the second appellant.
    
18. The first appellant was a security guard who was contracted by the complainant company to provide the security to the workshop. Hence, his action of stealing from the workshop amount to a breach of trust. If a criminal offence is committed by two or more persons, each of them may play a different part, but if they are acting together as part of a joint plan or agreement to commit the offence, they are each guilty. Hence, both the first and second appellant are equally guilty to this offence. Therefore, these two grounds of appeal also fail.
    

Ground I & II of First Appellant and Ground IV & V of the Second Appellant

19. I now turn into the first and second grounds of appeal of the first appellant and the fourth and fifth grounds of appeal of the second appellant. All of these grounds are based upon the contention that the learned Magistrate failed to impose a suspended sentence as both the appellant have shown their intention to restitute the amount back to the complainant.
    
20. Section 26 (1) of the Sentencing and Penalties Decree states that:
    

“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.”

21. Accordingly, it is a discretionary power of the sentencing court to impose a suspended sentence. If the court contemplates to suspend a sentence, it must be satisfied, having considered all the circumstances, that it is prudent to do so.
    
22. Justice Shameem in State v. Raymond Roberts (HAA 0053 of 2003 S) has discussed the applicable sentencing approach for the offences involved with breach of trust, where her ladyship found that:
    

“The principles that emerge from these cases are that a custodial sentence is inevitable where the accused pleads not guilty and makes no attempt at genuine restitution. Where there is a plea of guilty, a custodial sentence may still be inevitable where there is a bad breach of trust , the money stolen is high in value and the accused shows no remorse or attempt at reparation. However, where the accused is a first offender, pleads guilty and has made full reparation in advance of the sentencing hearing (thus showing genuine remorse rather than a calculated attempt to escape a custodial sentence) a suspended sentence may not be wrong in principle. Much depends on the personal circumstances of the offender, and the attitude of the victim.”

23. Furthermore, in State v Simeti Cakau ( HAA 125 of 2004S), Justice Shameem has further elaborated the applicable sentencing approach for offences involved with breach of trust, where her Ladyship found that:
    

“That a custodial sentence is inevitable except in those exceptional cases where full restitution had been affected, not to buy the offender’s way out of prison, but as a measure of true remorse.”

24. In this case, the two appellant have not made any restitution, but only indicated that they were willing to pay it in their mitigation submissions. Hence, imposing a custodial sentence is in line with the applicable sentencing principles and approaches in relation to the offences involved with breach of trust. Hence, I do not find any merits in these grounds as well.
    
25. The order of the court,
    
    1. The appeal filed by the first and second appellant are dismissed.
       
26. Thirty (30) days to appeal to the Fiji Court of Appeal.
    

R.D.R.T. Rajasinghe

Judge

At Suva
25^th July 2019

Solicitors
Appellant In Person.
Samusamuvodre Sharma Law for 2^nd Accused.
Office of the Director of Public Prosecutions for the Respondent.