Ratu v State [2024] FJHC 268; HAA69.2023 (25 April 2024)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
[APPELLATE JURISDICTION]

CRIMINAL APPEAL NO. HAA 69 OF 2023

IN THE MATTER of an Appeal against the sentence of the Magistrate’s Court of Ba, in Criminal Case No. CF 607 of 2020 and CF 143 of 2023.

BETWEEN :
MECIUSELA RATU
APPELLANT

AND :
STATE
RESPONDENT

Counsel : The Appellant Appears in Person
Ms. Saini Naibe for the Respondent

Date of Hearing : 9 April 2024
Judgment : 25 April 2024

JUDGMENT

[1] This is an Appeal made by the Appellant against the sentence imposed against him by the Magistrate’s Court of Ba, in Criminal Case No. CF 607 of 2020 and CF 143 of 2023.

[2] In the Magistrate’s Court of Ba, Criminal Case No. CF 607 of 2020, the Appellant was charged with one count of Burglary, contrary to Section 312 (1) of the Crimes Act No. 44 of 2009 (Crimes Act), one count of Theft, contrary to Section 291 (1) of the Crimes Act and one count of Failure to Comply with Orders, contrary to Section 69 (3) of the Public Health Act 1935 read with Regulation 2 of the Public Health (Infectious Diseases) Regulation 2020. The full details of the charges read as follows:

FIRST COUNT

Statement of Offence (a)

BURGLARY: Contrary to Section 312 (1) of the Crimes Act No. 44 of 2009.

Particulars of Offence (b)

MECIUSELA RATU, on the 30^th day of October 2020, at Ba Town, Ba, in the Western Division, entered the cafe of SHIRI KRISAN MANI as a trespasser with intent to commit Theft.

SECOND COUNT

Statement of Offence (a)

THEFT: Contrary to Section 291 (1) of the Crimes Act No. 44 of 2009.

Particulars of Offence (b)

MECIUSELA RATU, on the 30^th day of October 2020, at Ba Town, Ba, in the Western Division, dishonestly misappropriated 1 Kit Kat valued at $40.00; Boneless Chicken valued at $200.00; Chicken Loose No. 17 valued at $137.00; Boiled Wings valued at $100.00; Coke valued at $50.00, Cheese valued at $25.00; Chicken valued at $28.00; Lamb BBQ valued at $100.00; Sausage valued at $40.00; Cheese Cake valued at $20.00; Jam Roll valued at $10.00; all to a total value of $750.00 the property of Shiri Krisan Mani with the intention to permanently deprive the said Shiri Krisan Mani of his properties.

THIRD COUNT

Statement of Offence (a)

FAILURE TO COMPLY WITH ORDERS: Contrary to Section 69 (3) of the Public Health Act 1935 read with Regulation 2 of the Public Health (Infectious Diseases) Regulation 2020.

Particulars of Offence (b)

MECIUSELA RATU, on the 30^th day of October 2020, at Ba, in the Western Division, without lawful excuse was found in Ba Town between 12.30 a.m. to 1.00 a.m. and failed to comply with hours of curfew (11.00 p.m. to 4.00 a.m.) as per order issued by PERMANENT SECRETARY OF HEALTH.

[3] Initially the Appellant pleaded not guilty to the charges and the matter had been fixed for trial. However, subsequently the Appellant had taken a progressive approach in the matter and pleaded guilty to the three charges.

[4] On 11 August 2023, the sentence was pronounced [Vide Sentence from pages 1-5 of the Magistrate’s Court Record]. The Appellant had been imposed an aggregate sentence of 17 months imprisonment, of which he was ordered to serve 10 months imprisonment immediately and the remainder of the 7 months imprisonment was suspended for 4 years.

[5] The above sentence was made consecutive to the sentence imposed on the Appellant by the Magistrate’s Court of Ba, in Criminal Case No. CF 143 of 2023, on 21 April 2023.

[6] In the Magistrate’s Court of Ba, Criminal Case No. CF 143 of 2023, the Appellant was charged with one count of Absconding Bail, contrary to Section 26 of the Bail Act No. 26 of 2002 (Bail Act), as Amended by Bail (Amendment) Act No. 28 of 2012. The full details of the charge read as follows:

CHARGE

Statement of Offence (a)

ABSCONDING BAIL: Contrary to Section 2 (1) of the Bail (Amendment) Act 2012 read with Section 26 of the Bail Act 2002.

Particulars of Offence (b)

MECIUSELA RATU, on the 11^th day of April 2023, at Ba, in the Western Division, being bailed by Ba Magistrate’s Court in CF 607/2020 failed to attend/present himself before Ba Magistrate’s Court without reasonable excuse.

[7] For his failure to appear in Court, the Appellant had been arrested on a bench warrant and produced in Court on 17 April 2023. On the same day, the Appellant had pleaded guilty to the charge on his own free will and also admitted to the Summary of Facts filed. Accordingly, he had been found guilty on his own plea and convicted by the Learned Magistrate, Ba.

[8] On 21 April 2023, the sentence was pronounced [Vide Sentence from pages 3-4 of the Magistrate’s Court Record]. The Appellant had been imposed a sentence of 10 months imprisonment to be served in its entirety.

[9] Aggrieved by the Order made by the Learned Magistrate, Ba, on 11 August 2023, the Appellant has filed this appeal in the High Court. The Appeal filed was originally in respect of both the conviction and sentence. However, the Appellant submitted that he only wishes to pursue the appeal in respect of the sentence.

[10] This Appeal was received in the High Court on 17 October 2023 and, as such, was a few days out of time. However, the State did not object to the appeal being filed by the Appellant a few days out of time.

[11] This matter was taken up for hearing before me on 9 April 2024. The Appellant (who appeared in person) and the Learned Counsel for the Respondent were heard. Both parties have filed written submissions, and referred to case authorities, which I have had the benefit of perusing.

[12] As per the Appeal filed the Grounds of Appeal taken up by the Appellant are as follows:

Grounds of Appeal against Sentence

1. That the Learned Sentencing Magistrate erred in her sentencing discretion in that she had acted upon a wrong principle and allowed extraneous and irrelevant matters to guide or affect her.
2. That the Learned Sentencing Magistrate failed to give a concurrent sentence having regards that both cases are from one transaction.
   

The Law and Analysis

[13] Section 246 of the Criminal Procedure Act No 43 of 2009 (Criminal Procedure Act) deals with Appeals to the High Court (from the Magistrate’s Courts). The Section is re-produced below:

“(1) Subject to any provision of this Part to the contrary, any person who is dissatisfied with any judgment, sentence or order of a Magistrates Court in any criminal cause or trial to which he or she is a party may appeal to the High Court against the judgment, sentence or order of the Magistrates Court, or both a judgement and sentence.

(2) No appeal shall lie against an order of acquittal except by, or with the sanction in writing of the Director of Public Prosecutions or of the Commissioner of the Independent Commission Against Corruption.

(3) Where any sentence is passed or order made by a Magistrates Court in respect of any person who is not represented by a lawyer, the person shall be informed by the magistrate of the right of appeal at the time when sentence is passed, or the order is made.

(4) An appeal to the High Court may be on a matter of fact as well as on a matter of law.

(5) The Director of Public Prosecutions shall be deemed to be a party to any criminal cause or matter in which the proceedings were instituted and carried on by a public prosecutor, other than a criminal cause or matter instituted and conducted by the Fiji Independent Commission Against Corruption.

(6) Without limiting the categories of sentence or order which may be appealed against, an appeal may be brought under this section in respect of any sentence or order of a magistrate's court, including an order for compensation, restitution, forfeiture, disqualification, costs, binding over or other sentencing option or order under the Sentencing and Penalties Decree 2009.

(7) An order by a court in a case may be the subject of an appeal to the High Court, whether or not the court has proceeded to a conviction in the case, but no right of appeal shall lie until the Magistrates Court has finally determined the guilt of the accused person, unless a right to appeal against any order made prior to such a finding is provided for by any law.’’

[14] Section 256 of the Criminal Procedure Act refers to the powers of the High Court during the hearing of an Appeal. Section 256 (2) and (3) provides:

“(2) The High Court may —

(a) confirm, reverse or vary the decision of the Magistrates Court; or

(b) remit the matter with the opinion of the High Court to the Magistrates Court; or

(c) order a new trial; or

(d) order trial by a court of competent jurisdiction; or

(e) make such other order in the matter as to it may seem just, and may by such order exercise any power which the Magistrates Court might have exercised; or

(f) the High Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the Appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

(3) At the hearing of an appeal whether against conviction or against sentence, the High Court may, if it thinks that a different sentence should have been passed, quash the sentence passed by the Magistrates Court and pass such other sentence warranted in law (whether more or less severe) in substitution for the sentence as it thinks ought to have been passed.”

The Grounds of Appeal against Sentence

[15] In the case of Kim Nam Bae v. The State [1999] FJCA 21; AAU 15u of 98s (26 February 1999); the Fiji Court of Appeal held:

“...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 relevant consideration, then the Appellate Court may impose a different sentence. This error 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).”

[16] These principles were endorsed by the Fiji Supreme Court in Naisua v. The State [2013] FJSC 14; CAV 10 of 2013 (20 November 2013), where it was held:

“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. AAU 0015 of 1998. 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.”

[17] Therefore, it is well established law that before this Court can interfere with the sentence passed by the Learned Magistrate; the Appellant must demonstrate that the Learned Magistrate fell into error on one of the following grounds:

(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.

[18] In Sharma v. State [2015] FJCA 178; AAU48.2011 (3 December 2015) the Fiji Court of Appeal discussed the approach to be taken by an appellate court when called upon to review the sentence imposed by a lower court. The Court of Appeal held as follows:

“[39] It is appropriate to comment briefly on the approach to sentencing that has been adopted by sentencing courts in Fiji. The approach is regulated by the Sentencing and Penalties Decree 2009 (the Sentencing Decree). Section 4(2) of that Decree sets out the factors that a court must have regard to when sentencing an offender. The process that has been adopted by the courts is that recommended by the Sentencing Guidelines Council (UK). In England there is a statutory duty to have regard to the guidelines issued by the Council (R –v- Lee Oosthuizen [2009] EWCA Crim 1737; [2006] 1 Cr. App. R.(S.) 73). However no such duty has been imposed on the courts in Fiji under the Sentencing Decree. The present process followed by the courts in Fiji emanated from the decision of this Court in Naikelekelevesi –v- The State (AAU 61 of 2007; 27 June 2008). As the Supreme Court noted in Qurai –v- The State (CAV 24 of 2014; 20 August 2015) at paragraph 48:

"The Sentencing and Penalties Decree does not provide specific guidelines 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."

[40] In the same decision the Supreme Court at paragraph 49 then briefly described the methodology that is currently used in the courts in Fiji:

"In Fiji, the courts by and large adopt a two-tiered process of reasoning where the (court) 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."

[41] The Supreme Court then observed in paragraph 51 that:

"The two-tiered process, when properly adopted, has the advantage of providing consistency of approach in sentencing and promoting and enhancing judicial accountability _ _ _."

[42] To a certain extent the two-tiered approach is suggestive of a mechanical process resembling a mathematical exercise involving the application of a formula. However that approach does not fetter the trial judge's sentencing discretion. The approach does no more than provide effective guidance to ensure that in exercising his sentencing discretion the judge considers all the factors that are required to be considered under the various provisions of the Sentencing Decree.

....................

[45] 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.”

The Grounds of Appeal against Sentence

[19] The first Ground of Appeal against Sentence is that the Learned Sentencing Magistrate erred in her sentencing discretion in that she had acted upon a wrong principle and allowed extraneous and irrelevant matters to guide or affect her. The second Ground of Appeal against Sentence is that the Learned Sentencing Magistrate failed to give a concurrent sentence having regards that both cases are from one transaction.

[20] I am of the opinion that the two Grounds of Appeal are inter connected. Thus they will be addressed together.

[21] With regard to the offence of Burglary, the Learned Magistrate has correctly identified the maximum sentence for the offence as 13 years imprisonment. As to the tariff for Burglary the Learned Magistrate has stated that initially the tariff for the offence of Burglary was between 18 months to 3 years imprisonment. She has also made reference to the decision of (Avishkar Rohinesh) Kumar & Another (Sirino Vakatawa) v State [2022] FJCA 164; AAU117.2019 (24 November 2022), where the Fiji Court of Appeal has formulated a new tariff for the offences of Burglary and Aggravated Burglary.

[22] However, the Learned Magistrate has stated that she will utilize the original tariff for the offence of Burglary for the reasons that the offending in this matter took place prior to the new tariff formulated by the Court of Appeal in Kumar & Another v State (supra). This in fact is more beneficial to the Appellant.

[23] With regard to the offence of Theft, the Learned Magistrate has correctly identified the maximum sentence for the offence as 10 years imprisonment. As to the tariff for Theft she has made reference to the case of Ratusili v. State [2012] FJHC 1249; HAA011.2012 (1 August 2012); where His Lordship Justice Madigan established the tariff for the offence of Theft.

[24] As to the offence of Failure to Comply with Orders, contrary to Section 69 (3) of the Public Health Act 1935 read with Regulation 2 of the Public Health (Infectious Diseases) Regulation 2020, the Learned Magistrate has correctly identified the maximum sentence for the offence and also stated that there is no set tariff for the offence.

[25] Thereafter, the Learned Magistrate has gone on to set out the aggravating factors and mitigating factors in the case. She has also stated that she has taken into account Sections 4 (1) and 4 (2) of the Sentencing and Penalties Act No. 42 of 2009 (Sentencing and Penalties Act). Since the offending was conducted in one transaction, the Learned Magistrate has stated that the Court will impose an aggregate sentence for the three counts pursuant to Section 17 of the Sentencing and Penalties Act.

[26] Having duly considered all factors, the Learned Magistrate has concluded that the aggregate sentence to be imposed on the Appellant was 20 months imprisonment. Thereafter, in terms of Section 24 of the Sentencing and Penalties Act, she has deducted 3 months from the sentence for the time the Appellant had spent in remand and arrived at a final aggregate sentence of 17 months imprisonment.

[27] The Learned Magistrate has duly considered the provisions of Section 26 of the Sentencing and Penalties Act and set out the reasons as to why she was not inclined to suspend the entirety of the sentence imposed on the Appellant (and only suspending a part of his sentence). The Learned Magistrate has also provided reasons as to why the sentence imposed in the instant case (Magistrate’s Court of Ba, Criminal Case No. CF 607 of 2020) was made consecutive to the current term of imprisonment that the Appellant was serving (in Magistrate’s Court of Ba, Criminal Case No. CF 143 of 2023).

[28] I reproduce below the relevant paragraphs of the Learned Magistrate’s sentence where she has clearly justified her above actions:

32. Considering your total criminality, I find that a sentence that deters outweighs rehabilitation. I find from your previous conviction of which 4 are active from the years 2015, 2017, 2018 and again earlier this year in April 2023, from 3 different jurisdictions, that you have not learnt anything from your spree of offending and you have also not been genuine in your submission that you have learnt from your continuous appearances in Court for criminal charges.
33. While the Court can impose a concurrent sentence in these proceedings, I find that a consecutive sentence is befitting to further impress on you the need to genuinely change and reform as a result of this imprisonment term. Pursuant to Section 22 (1) of the Sentencing and Penalties Act 2009, I direct as follows for your sentence....

[29] In the circumstances, I find that the Learned Sentencing Magistrate has duly exercised her sentencing discretion in this matter. Furthermore, she has duly provided reasons as to why she was imposing a consecutive sentence on the Appellant in terms of Section 22 (1) of the Sentencing and Penalties Act. Therefore, I am of the opinion that these Grounds of Appeal against Sentence have no merit.

Conclusion

[30] Accordingly, I conclude that this Appeal against sentence should be dismissed.

FINAL ORDERS

[31] In light of the above, the final orders of this Court are as follows:

1. Appeal is dismissed.
2. The convictions and sentences imposed by the Learned Magistrate Magistrate’s Court of Ba, in Criminal Case No. CF 607 of 2020 and CF 143 of 2023 are affirmed.

Riyaz Hamza
JUDGE
HIGH COURT OF FIJI

AT SUVA
Dated this 25^th Day of April 2024

Solicitors for the Appellant : Appellant Appears in Person.
Solicitors for the Respondent: Office of the Director of Public Prosecutions, Lautoka.