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Cakacaka v State [2022] FJHC 86; HAA026.2021 (4 February 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION


CRIMINAL APPEAL NO. HAA 026 OF 2021


BETWEEN : FINIASI CAMA CAKACAKA


APPELLANT


AND : THE STATE


RESPONDENT


Counsel : Appellant in person.
Mr. A. Kumar for the Respondent.

Date of Hearing : 27 January, 2022
Date of Judgment : 04 February, 2022


JUDGMENT


BACKGROUND INFORMATION


  1. The appellant was charged in the Magistrate’s Court at Rakiraki with one count of burglary contrary to section 312 (1) (a) of the Crimes Act and one count of theft contrary to section 291 (1) of the Crimes Act in CF. 217 of 2019.
  2. The appellant was also charged with one count of theft contrary to section 291 (1) of the Crimes Act in CF. 218 of 2019 and in the third file for one count of burglary contrary to section 312 (1) (a) of the Crimes Act and for one count of theft contrary to section 291 (1) of the Crimes Act in CF. 219 of 2019.
  3. On 27th January, 2021 the appellant pleaded guilty after he informed the court that wanted to change his plea from not guilty to guilty in all the files. Thereafter he admitted the summary of facts read in the respective files as follows:

FILE NO. CF. 217 of 2019



FILE NO. CF. 218 of 2019


The stolen nanny goat valued at $150.00 was not recovered.


FILE NO. CF. 219 of 2019


  1. The learned Magistrate upon being satisfied that the appellant had entered an unequivocal plea of guilty convicted the appellant as charged in all the files. After hearing mitigation, on 15th April, 2021 the appellant was sentenced as follows:

a). FILE NO. CF. 217 of 2019


In this file the appellant was given an aggregate sentence of 28 months imprisonment.


b). FILE NO. CF. 218 of 2019


In this file the appellant was sentenced to 9 months imprisonment out of which 7 months was suspended for 18 months and the balance of 2 months was made consecutive to CF. 217 of 2019.


c). FILE NO. CF. 219 of 2019


In this file the appellant was given an aggregate sentence of 27 months imprisonment out of which 15 months was made concurrent to the above two files and the balance of 12 months imprisonment was made consecutive to the imprisonment term in the other files.


  1. On the above basis, the appellant is to serve 42 months imprisonment (that is 3 years and 6 months imprisonment) without any non-parole period.
  2. The appellant being aggrieved by the sentence filed his appeal against sentence dated 13th October, 2021. Although the appeal is out of time this court is mindful of the fact that the Corrections Centre was in a lockdown from 23rd April, 2021 due to Covid-19 till later part of 2021. In the circumstances, this court granted leave to the appellant to argue his appeal out of time.

APPEAL AGAINST SENTENCE


  1. On 30th December, 2021 this court granted the appellant leave to file his amended grounds of appeal which is as follows:
    1. That the Sentencing Magistrate may have fallen into an error when he failed to consider the time on remand on each files as time already served.
    2. That the learned Magistrate may have fallen into an error of law in failing to consider the correct tariff for Burglary on CF 217/19 and 219/19 thereby using a higher starting point.
    3. That the Sentencing Magistrate may have fallen into an error of law when he used an excessive starting point for the Sentence of Burglary due to the application of wrong tariff in CF 217/19 and 219/19.
    4. That the Sentencing Magistrate may have fallen into an error of law when he failed to give cogent reasons for imposing a sentence at the higher end of the tariff in CF 218/19.
    5. That the Sentencing Magistrate may have fallen into an error of law when he used the aggravating factors already subsumed in the elements of the offence of Burglary in CF 217/19.
    6. That the Sentencing Magistrate may have fallen into an error of law and principle when failing to correctly apply the Totality Principle.
    7. That the Sentencing Magistrate may have fallen into an error of law and principle when he failed to give cogent reasons of not suspending the sentence.
  2. The appellant filed written submissions and also made oral submissions during the hearing and the state counsel made oral submissions during the hearing for which this court is grateful.

LAW


  1. In sentencing an offender the sentencing court exercises a judicial discretion. An appellant who challenges this discretion must demonstrate to the Appellate Court that the sentencing court fell in error whilst exercising its sentence discretion.
  2. The Supreme Court of Fiji in Simeli Bili Naisua vs. The State, Criminal Appeal No. CAV0010 of 2013 (20 November 2013) stated the grounds for appeal against sentence at paragraph 19 as:-

“It is clear that the Court of Appeal will approach an appeal against sentence using the principles set out in House v The King [1936] HCA 40; (1936) 55 CLR 499 and adopted in Kim Nam Bae v The State Criminal Appeal No. AAU0015 at [2]. Appellate Courts will interfere with a sentence if it is demonstrated that the trial judge made one of the following errors:-


(i) Acted upon a wrong principle;


(ii) Allowed extraneous or irrelevant matters to guide or affect him;


(iii) Mistook the facts;


(iv) Failed to take into account some relevant consideration.”


AMENDED GROUNDS OF APPEAL


  1. The appellant’s main argument in this appeal is that the sentence is harsh and excessive for the following reasons:

a) Remand period not taken into account;

  1. Incorrect tariff taken for the offence of burglary resulting in a high starting point;

c) Incorrect application of the totality principle.


DETERMINATION


  1. At the outset, I would like to state that since the appellant is in person I have identified the above issues from the grounds of appeal filed which are important to this appeal. The appellant also mentioned in his grounds of appeal that he ought to have received a suspended sentence.
  2. In law under section 26 (2) (b) of the Sentencing and Penalties Act a Resident Magistrate cannot suspend an imprisonment term of 2 years or more. Here the final sentence was 3 years and 6 months which is over 2 years hence the term of imprisonment could not have been suspended by the learned Magistrate.

REMAND PERIOD


  1. The appellant argued that the learned Magistrate did not give any reduction for his remand period in the files the subject of this appeal which was contrary to section 24 of the Sentencing and Penalties Act.
  2. The appellant further states that the learned Magistrate firstly considered only 7 months out of the 9 months he was in remand which was only applied to one file that is CF. 216 of 2019 and not his other files. Secondly, the remand period had arisen after he was remanded in all the files hence by only giving the reduction in one file he was treated unfairly.
  3. At paragraphs 7, 8, and 9 of the sentence (CF 219/2019) the learned Magistrate stated the following about the remand period:

Paragraph 7

I calculate that you have spent approximately 9 months in remand. You had to be remanded primarily because of the number of cases before me that is CF 216-19 [theft] CF 217 – 19 [burglary and theft] and CF 218 – 19 [theft] and that you were unlikely to observe your bail conditions while on bail and that you seemingly reoffended while on bail.


Paragraph 8

I will not consider all of the 9 months you have spent in remand as time served. I will only consider 7 months out of the 9 months as time served. I have absorbed this 7 months into your sentence when I sentenced you earlier today for your theft case CF. 216-19.


Paragraph 9

You will not get a second benefit in his case.


  1. Section 24 of the Sentencing and Penalties Act states:

“If an offender is sentenced to a term of imprisonment any period of time during which the offender was held in custody prior to the trial of the matter ... shall, unless a court otherwise orders, be regarded by the court as a period of imprisonment already served by the offender.”

  1. In view of the above, a sentencing court must regard the remand period as a period of imprisonment already served by the offender on one hand and on the other the provision then bestows a discretion on the sentencing court by stating “unless a court otherwise orders”.
  2. In my view when one reads section 24 of the Sentencing and Penalties Act there is no ambiguity in its construction. The plain and ordinary meaning of this section makes it mandatory that any remand period be regarded as a period of imprisonment already served which essentially means that an appropriate reduction be considered in arriving at the final sentence. Therefore section 24 is a right given by law which accrues to the offender which must be taken into account by the sentencing court.
  3. However, the discretion given in this section is to be exercised in the context of the mandatory requirement because the discretion cannot override the statutory intent of section 24. In this regard the discretion given to the sentencing court is in respect to the length of the remand period to be taken into account. For example there is no necessity for a sentencing court to make a precise mathematical calculation on the length of the remand period as long as it takes into account a substantial period of remand which is then deducted from the interim sentence before finality.
  4. In Vilitati Vasuca v State [2015] FJCA 65, AAU 011 of 2011 (28 May, 2015) the Court of Appeal made a pertinent observation in respect of section 24 of the Sentencing and Penalties Act from paragraphs 14 to 17 as follows:

[14]...Section 24 of the Sentencing and Penalties [Act] 2009 requires sentencing courts to regard any pre-trial detention as a period of imprisonment already served by the offender. In this jurisdiction, the practice has been discounting or subtracting the remand period instead of backdating the sentence. There is no exact formula on how the discounting should be made. Some judges incorporate the discounting in the combined quantification for all the mitigating factors while some judges turn to give separate discounting for pre-trial detention. The length of the remand period may vary from case to case, and in each case the discretion lies with the sentencing court to comply with section 24 of the Sentencing and Penalties Decree 2009. In Basa v State (unreported Criminal Appeal No. AAU0024 of 2005; 24 March 20006), the offender had spent one year, one month and fourteen days in custody before the trial but the judge only allowed for one year on remand. On appeal this Court said at para. [12]:

"The appellant also points out that he had spent one year, one month and 14 days in custody before the trial but the Judge only allowed for one year on remand. When calculating the appropriate sentence for any offence, the Judge should allow for any substantial period in custody but it is not necessary to make a precise calculation. The allowance of a year was a perfectly proper amount."

[15] Although Basa's case was considered before the Sentencing and Penalties Decree 2009 came into effect, the view that was expressed by this Court regarding consideration of the remand period in sentence has not been altered by section 24 of the Decree. Section 24 reads:

'Time in custody before trial to be deducted'

"If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court otherwise orders, be regarded by the court as a period of imprisonment already served by the offender."

[16] The heading to section 24 states 'time in custody before trial to be deducted'. But the section itself does not use the word deduction. The operative word in section 24 is 'regarded'. To regard means to consider or to take into account (Shorter Oxford English Dictionary, 2nd ed. Vol. 1 p. 1690). The use of the word 'shall' in section 24 literally means that sentencing courts have no option but to consider any remand period, even if it is a few days, as a period of imprisonment already served. If this interpretation is correct, then the offenders will be ending with sentences in terms of years, months and days. But the word 'shall' in section 24, is followed by a comma and a phrase 'unless a court otherwise orders', which can mean that it is discretionary as opposed to mandatory for sentencing courts to consider remand period as a period of imprisonment already served. If the purpose of section 24 is to create a mandatory obligation on sentencing courts to consider any remand period as a period of imprisonment already served, then what is the purpose of giving a residual discretion that defeats the original purpose? The two propositions are clearly in conflict.

[17] So how should sentencing courts consider remand period in sentence. In my opinion, the answer lies with how the remand period was considered under the common law as outlined in Basa's case, that is, when calculating the appropriate sentence for any offence, sentencing courts should allow for any substantial period in custody but it is not necessary to make a precise calculation. What is a substantial period, of course, will depend on the facts of each case and the sentence that has been imposed on the offender.


  1. The learned Magistrate had taken all the files separately for sentencing which means he delivered separate sentences. The sentence in CF. 216 of 2019 is not the subject of this appeal since a suspended sentence was given.
  2. The dates of allegation in all the files including CF. 216 are in close proximity of each other and the allegations in each file is for similar or same offending. The appellant had pleaded guilty in all the files and the sentence was delivered on the same day for all the files via separate written sentence.
  3. The thrust of the sentencing remarks and the balancing of the different components of the sentence is more or less the same for all the files. In my view it would have been practical to consider all the files together in one sentence.
  4. One written sentence in respect of numerous files saves time and avoids unfairness on the accused since the aggravating and mitigating factors can be wholly taken into account. In this case the remand period was applicable to all the files yet only one file got the benefit of such a reduction.
  5. Be that as it may, the learned Magistrate in his sentence mentioned that the appellant was remanded for 9 months but he did not allow the entire 9 months deduction for the remand period. At paragraph 8 of the sentence the learned Magistrate stated “I will not consider all of the 9 months you have spent in remand as time served. I will only consider 7 months out of the 9 months as time served.”
  6. There is no reason given by the learned Magistrate for taking such a course, as far as this court is concerned the appellant should have had the benefit of relying on the balance of 2 months remand period. This ground of appeal is allowed to the extent that this court can only consider 2 months of remand period as a deduction if a fresh sentence is considered.

INCORRECT TARIFF


  1. The appellant also submits that the learned Magistrate had relied on an incorrect tariff for the offence of burglary when he took 20 months to 6 years imprisonment as per State vs. Prasad, HAC 254 of 2016 (12 October, 2017). By taking an incorrect tariff the starting point of 2 years and 2 months aggregate imprisonment term was on the higher scale in files CF. 217 & 219 of 2019.

TARIFF


  1. The maximum penalty for the offence of burglary is 13 years imprisonment. The accepted tariff for this offence is a sentence between 1 year and 3 years imprisonment (see Viliame Waqavanua vs. State, Criminal Appeal No. HAA 013 of 2011, ( 6th May, 2011), Penaia Ratu vs. State, Criminal Case No. HAA 95 of 2017).
  2. Taking into consideration the above case authorities the learned Magistrate took a different tariff hence the starting point of the sentence was on a higher scale. In order to ascertain whether the starting point selected by the learned Magistrate was correct or not I am guided by the Court of Appeal in Laisiasa Koroivuki v The State, criminal Appeal No: AAU0018 of 2010 at paragraphs 26 and 27 the following is stated:

“[26] The purpose of tariff in sentencing is to maintain uniformity in sentences. Uniformity in sentences is a reflection of equality before the law. Offender committing similar offences should know that punishments are even handedly given in similar cases when punishments are even-handedly given to the offenders, the public’s confidence in the criminal justice system is maintained.


[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.


  1. The learned Magistrate used a starting point of 2 years and 2 months imprisonment for the aggregate sentence this in my view was on the higher range of the accepted tariff. Thereafter, the aggravating factors were added and mitigating factors were used to reduce the sentence.
  2. In the end the appellant was sentenced to 3 years and 6 months imprisonment without a non-parole period for all the three files. The high starting point taken as the objective seriousness of the offences committed and then adding the aggravating factor borders on double counting. This court does not know what factors were considered in the objective seriousness of the offences committed that led to the high starting point and whether those factors were part of the aggravating factors.
  3. This ground of appeal is also allowed.
  4. Before I leave this ground of appeal I would like to state that there is an uncertainty in respect of the tariff that should be applied for the offence of burglary as in the case of aggravated burglary. There are two different tariffs used by the courts in Fiji which is no doubt causing some disconcert and uncertainty within judicial officers which is expected when two parallel tariffs are floating in the justice system. The end result is that an accused will not know what sentence he or she will get since some courts are using the old tariff and some the new one.
  5. The learned Magistrate in this case relied on Prasad’s case wherein his Lordship Justice Perera recommended a tariff of 20 months to 6 years imprisonment for burglary. This court appreciates the sentiments raised by the learned Magistrate that he is inclined to adopt the new tariff for the offence of burglary and will continue to do so. Unfortunately, this court is unable to make any comments in regards to the appropriate tariff that applies for this offence.

36. It is hoped that the Court of Appeal will bring this issue to rest soon. In Avishkar Rohinesh Kumar v State [2020] FJCA 64; AAU033.2018 (28 May 2020) the Justice of Appeal made the following pertinent comments at paragraph 25:


Suffice it to say that the application of old tariff and new tariff by different divisions of the High Court for the same offence of burglary or aggravated burglary is a matter for serious concern as it has the potential to undermine public confidence in the administration of justice. Treating accused under two different sentencing regimes for the same offence simultaneously in different divisions in the High Court would destroy the very purpose the

sentencing tariff is expected to achieve; uniformity. The disparity of sentences received by the accused for aggravated burglary depending on the sentencing tariff preferred by the individual trial judge leads to the increased number of appeals to the Court of Appeal on that ground alone. The state counsel indicated that the same unsatisfactory situation is prevalent in the Magistrates courts as well with some Magistrates preferring the old tariff&#1d some opting ting to apply the new tariff. The state counsel also informed this court that the State would seek a guideline judgment from the Court of Appeal regarding the sentencing tariff for aggravated burglary. I hope that the State would do so at the first available opportunity in the Court of Appeal or the Supreme Court. Until such time it would be best for the High Court judges themselves to arrive at some sort of uniformity in applying the sentencing tariff for aggravated burglary.


TOTALITY PRINCIPLE


  1. The totality principle of sentencing is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences or when making sentences consecutive.
  2. The appellant argues that he was 23 years of age at the time of the offending will have to serve a total sentence of 3 years and 6 months for the three offences of similar offending.
  3. At paragraph 28 of his sentence in CF. 218 of 2019 the learned Magistrate made 2 months imprisonment term for the offence of theft consecutive to CF. 217 of 2019.
  4. At paragraph 41 of his sentence in CF. 219 of 2019 the learned Magistrate made 12 months imprisonment term in this file consecutive to CF. 217 of 2019.
  5. Taking into account the consecutive sentences imposed, the appellant has to serve 3 years and 6 months imprisonment without a non-parole period. This court accepts the sentence in its current form is excessive. Furthermore, by not imposing a non-parole period the learned Magistrate did not follow section 18 (1) of the Sentencing and Penalties Act (as amended).

  1. In Mill v The Queen [1988] HCA 70 the High Court of Australia in its judgment cited D.A. Thomas, Principles of Sentencing (2nded. 1979) pp. 56-57 as follows:

“the effect of the totality priniciple is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms; ‘when a number of offences are being dealt with and specific punishment in respect of them are being totted up to make a total, it is always

necessary for the court to take a last look at the total just to see whether it looks wrong’; “when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic producers. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”


  1. In Fiji the above principles have been approved and applied by the court in many cases a few to mention are Tuibua v The State, [2008] FJCA 77, Taito Raiwaqa v The State, [2009] FJCA 7) and Asaeli Vukitoga v The State, Criminal Appeal No: AAU 0049 of 2008.
  2. Having allowed the appeal and in the interest of justice and in accordance with section 256 (3) of the Criminal Procedure Act it is only fair and justified to quash the sentence ordered by the Magistrate’s Court.
  3. The appellant is sentenced afresh in files CF. 217 and 219 of 2019 (burglary and theft) for which he has been convicted are offences founded on the same facts and are of similar character. I therefore prefer to impose an aggregate sentence for CF. 217 in accordance with section 17 of the Sentencing and Penalties Act.
  4. After assessing the objective seriousness of the offences committed I take 1 year imprisonment (lower range of the scale) as the starting point of the aggregate sentence. The sentence is increased for the aggravating factors, and reduced for the mitigating factors, and guilty plea (although late in time) as mentioned by the learned Magistrate in his sentence.
  5. I also note from the copy record that the accused has a balance of remand period for 2 months which has not been accounted for. In accordance with section 24 of the Sentencing and Penalties Act and in exercise of my discretion the aggregate sentence is further reduced by 2 months as a period of imprisonment already served. In view of the above, the final aggregate sentence for CF. 217 is 2 years and 6 months imprisonment. Bearing in mind the totality principle of sentencing the aggregate sentence in CF. 217 is made concurrent to CF. 219.
  6. In CF. 218 of 2019 for the count of theft the appellant was sentenced to 9 months imprisonment out of which 7 months was suspended for 18 months and the balance of 2 months imprisonment was made consecutive to CF. 217 of 2019.
  7. To strike a balance between deterrence and rehabilitation, I do not wish to interfere with the sentence of the learned Magistrate in CF. 218 which will give effect to the offence of theft hence 2 months imprisonment in this file is made consecutive to the other two files which is justified and does not have a crushing effect on the appellant.
  8. In summary the new sentence of the appellant for CF. 217, 218 and 219 of 2019 is 2 years and 8 months imprisonment.
  9. This court cannot ignore section 26 (2) (a) of the Sentencing and Penalties Act which gives this court a discretion to suspend the imprisonment term either wholly or partly since the final sentence does not exceed 3 years imprisonment if this court considers it appropriate to do so in the circumstances of the case.
  10. The discretion to suspend the term of imprisonment must be exercised judicially after identifying special reasons for doing so.
  11. In order to suspend the sentence of the appellant this court has to consider whether the punishment is justified taking into account the offences committed by the appellant. In this regard the guidaffe offered by Goundar J. in Balaggan vs State, Criminal Appeal No. HAA 031 of 2011 (24 Apri12 2012) at paragraph 20 is helpful:

ـ ҈&160; “Neiuner under ther the common law, nor under the Sentencing and Penalties [Act], there is an automatic entitlemo a sded sce.&#Wheth offender’s s7;s sentence should be suspended will depe depend onnd on a nu a number mber of factors. These factors no doill ovel overlap with some of the factors that mitigate the offence. For instance, a young and a first time offender may re a suspended sentence for the purpose of rehabilitation. But, if a and a firstfirstfirst time offender commits a serious offethe need for special and general deterrence may override thde the personal need for rehabilitation. inal test for an approe seoe sentence is whether the pthe punishment fits the crime committed by the offender?”


  1. T54">This court accepts that there are some factors in favour of the appellant such as he was 23 years of age at the time of the offending, had pleaded guilty although late in time and the learned Magistrate had accepted that the appellant had shown remorse for what he had done.
  2. On the other hand, the appellant had committed serious offences in close proximity of each allegation, his previous convictions, his culpability in the offences are obvious, and with the prevalence of such offending a suspended sentence will not meet the ends of justice.
  3. After carefully weighing the factors in favour of the appellant and the serious nature of the offences committed, I am compelled to state that there is a need for special and general deterrence. The Sentencing and Penalties Act sets out the broad sentencing guidelines that need to be adhered to by the Sentencing Court in sentencing an offender.

57. Section 4(1) of the Sentencing and Penalties Act inter alia identifies the following purposes which may be imposed by the Sentencing Court:


“(a) to punish offenders to an extent and in a manner which is just in all the circumstances;
(b) to protect the community from offenders;

(c) to deter offenders or other persons from committing offences of the same or similar nature;

(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) to signify that the court and the community denounce the commission of such offences; or
(f) any combination of these purposes.”


  1. I am satisfied that the term of 2 years and 8 months imprisonment is an appropriate sentence to have any deterrent effect and I therefore refuse to suspend the term of imprisonment.
  2. In accordance with section 18 (1) of the Sentencing and Penalties Act (as amended) and to assist in the rehabilitation of the appellant a non-parole period of 2 years is imposed with effect from 15th April, 2021. It is noted that the appellant has previous convictions, serious offences were committed within a short span of time with no substantial recovery or restitution to the victims.
  3. Before I leave in respect of the charge of burglary it is noted that the charges mention section 312 (1) (a) of the Crimes Act there is no paragraph (a) in this section of the law. Since the appellant is in person I have perused the entire copy record and I am satisfied that this omission has not caused any prejudice to the appellant. The summary of facts read satisfied all the elements of the offence of burglary.


ORDERS


  1. The appeal against sentence is allowed.
  2. The sentence of the Magistrate’s Court is quashed and set aside.
  3. The appellant is sentenced to 2 years and 8 months imprisonment in CF. 217, 218 and 219 of 2019 with effect from 15th April, 2021. A non-parole period of 2 years is imposed before the appellant is eligible for parole.
  4. 30 days to appeal to the Court of Appeal.

Sunil Sharma

Judge
At Lautoka
04 February, 2022


Solicitors
Appellant in person.
Office of the Director of Public Prosecutions for the Respondent.

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