State v Varayame [2011] FJMC 161; Criminal Case 589.2011 (17 November 2011)

IN THE RESIDENT MAGISTRATE’S COURT
AT LAUTOKA
IN THE WESTERN DIVISION

CRIMINAL JURISDICTION

CRIMINAL CASE NO.: 589/11

STATE

-v-

USENIO VARAYAME

For Prosecution: Sgt Paul Taito

For Accused: In Person

SENTENCE

“Usenio” you appear for sentence in this Court, after pleading guilty to the following mentioned offences;

1) Burglary - Contrary to Section 312(1) of the Crimes Decree No.44 of 2009.
2) Theft - Contrary to Section 291(1) of the Crimes Decree No.44 of 2009.

3) Escaping from lawful custody - Contrary to Section 196 of the Crimes Decree No. 44 of 2009.

I am satisfied that your plea is “unequivocal” and that you understand the consequences of your plea.

“Usenio” you are aged 17 and you are a student of Fiji National University.

On the 14^th September 2011, between 1.00am to 1.30am, you gain access to the “Hunters Inn Night Club” by forced opening a window. Whilst you were inside the night club; the security of MH Supermarket namely “Peni Volau” was informed by a passer that you were inside the Night Club. Thereafter the Security Officer came and apprehended you whilst you were in the process of coming out from the Night Club. Thereafter the Security Officer called the Police and you were handed over to the Police. At the Police Station you were subjected to a body search and the Police found Recharge cards and a packet of cigarette and $50.00 cash. Thereafter you escaped Police custody while you were in the washroom. About 20 days later, namely on 04^th October 2011, you were arrested at the Lautoka Town and brought to the Police Station.

The above mentioned Summary of Facts was read over to you by the Prosecution in open Court. You admitted the Summary of Facts.

I see no aggravating factors in this offence.

Mitigating Factors
(1) You tendered an apology to Court.
(2) You are remorseful for your actions and deeds.

Personal Circumstances
(1) You are aged 17.
(2) You are a student at “Fiji National University”.

The offence of “Burglary” carries a maximum sentence of 13 years and “Theft” ten (10) years imprisonment. The offence of “Theft” is newly created in this Jurisdiction by the Crimes Decree of 2009, but is akin to the offence of “Larceny” under the old Penal Code.

The tariff for “Burglary” is 18 months to 03 years imprisonment, with the question of suspension being reserved for the young offender or first offender.

1) State vs Tuivawa (2010) FJHC 212, HAC 029 2010.3.
2) Turuturuvesi vs State (2002) F.J.H.C 190; HAA 0086J.2002.s.
3) Mesake Ratabua vs State Criminal Appeal, H.A.A 0026 of 2004s.
4) Dravere Ledua vs State Criminal Appeal, H.A.A 0014 of 2002.
5) State vs Mucunabitu (2010) F.J.H.C 151.

The tariff for simple Larceny is 2 – 9 months imprisonment for a first offender, [Ronald Vikash vs HAA 0025 OF 2002].

On a second conviction for Larceny a sentence is excess 9 months imprisonment is imposed depending on the value of goods stolen and the circumstances of the stealing [Waisale Vakarauvanua vs State Criminal Appeal HAA 0051 of 2004S].

In the case of “Kaloumaira vs State, (2008) FJHC 63, and Manasa Lesuma vs State” 2004, FJHC
490 it was held that the tariff for simple Larceny is 6 – 12 months imprisonment.

It was held in “Tikoitoga vs State” 2008, FJHC 44, HAM 088.2007, that the tariff for Larceny is 18 months to 3 years.

In “Vaniqi vs State” FJHC 348 haa 080.2008, it was held that the tariff for simple Larceny with previous conviction of a felony to be over nine (09) months.

The offence of “Escaping from Lawful Custody” Contrary to Section 196 of the Crimes Decree carries a maximum sentence of two (02) years imprisonment.

The tariff for the offence of “Escaping from Lawful Custody” is between 6 – 12 months imprisonment.

(1) Isireli Rokovucago vs Regina HAA 22/80
(2) Kinijoji Vuda vs State HAA 006/065
(3) Are amai vs State Crim. App. 091.065
(4) Viliame Tuibua vs State FJCA.AA.U0116.2007S (7^th November 2008).

In the case of “Viliame Tuibua vs State” FJCA 77; AAU0116.2007S, it was held that when there is a joint escape by two more prisoners, then the appropriate range of sentence will increase in 9 -12 months imprisonment.

Section 4[1] of the Sentencing and Penalties Decree limits the purpose of sentencing an offender to the following grounds:
(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 prompted or facilitated.

(e) to signify that the court and the community denounce the commission of such offences; or

(f) any combination of these purposes.

Section 4[2] of the decree outlines what a sentencing Court must consider when sentencing an offender:

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender’s culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did not so or indicated an intention to do so;

(g) the conduct of the offender during trial as an indication of remorse of the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender’s previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing options.

At this stage, I address my mind to the legal principles enunciated in the case of “Divendra Bija vs State” 43 FLR 144. In this case it was held “each case must be assessed and evaluated in its true merits and that the best guidance as always is for the courts to grasp the essence of established general principles of sentencing and apply them based on the fundamental premise that a sentence should not be harsh and excessive or wrong in principle”.

“USENIO” you pleaded guilty to the charge at the earliest opportunity.

I note that your guilty plea has saved substantial time and money that could have been thrown away if you denied you involvement. To that extent, I note that your guilty plea operates in your favour.

It has been well recognized practice in common law to take into account a plea of guilty in the sentence. Most common Law Jurisdictions have codified this practice in sentencing statutes. In Fiji, the practice is a part of the common law.

In Navuniani Koroi v. The State Criminal Appeal No. AAU0037 of 2002S, the Court said:

“It has been the practice of the courts to reduce a sentence where the accused person has pleaded guilty. In most cases that is recognition of his contrition as expressed by an early admission and the fact that it will save the witnesses and the court a great deal of time and expense. In offences of a sexual nature, the amount of reduction is generally more because the plea saves the victim from having to attend the trial and relieve her experience in the witness box”.

The weight to be given to a guilty plea depends on a number of factors. Some of these factors were identified by Hunt CJ at CL in R V. Winchester (1992) 58 A Crim R 345 at 350:

"A plea of guilty is always a matter which must be taken into account when imposing sentence. The degree of leniency to be afforded will depend upon many different factors. The plea may in some cases be an indication of contrition, or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the prisoner has pleaded guilty. The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from the recognition of the inevitable: Shannon (1979) 21 SASR 442 at 452; Ellis (1986) 6 NSWLR 603 at 604. The plea of guilty may also be taken into account as a factor in its own right independently of such contrition, as mitigation for the co-operation in saving the time and cost involved in a trial. Obviously enough, the extent to which leniency will be afforded upon this ground will depend to a large degree upon just when the plea of guilty was entered or indicated (and thus the savings effected): Beavan (unreported, Court of Criminal Appeal, NSW, Hunt, Badgery-Parker and Abadee JJ, 22 August 1991), at p.12.

In the “Principles of sentencing” second edition, by D.A.Thomas, at P.46 wrote

“The Final step in the process of calculating the length of tariff sentence is to make allowance for mitigation, reducing the sentence from the level indication by the facts of the offence by an amount appropriate to reflect such mitigating factors as may be present. Mitigating factors exist in great variety, but some are more common and more effective than others. They include such matters as the youth and previous of the offender....”

I select 18 months Imprisonment as my starting point for the first count seven (07) months imprisonment for the second count. I select eight (08) months imprisonment for the third count.

I reduce six (06) months from the first count for the early guilty plea and one (01) and two (02) month respectively from the second and third counts.

I further reduce two (02) months from each count for the mitigating factors.

“Usenio” you are a first offender. Hence, you are entitled for a discount for your previous good behaviour. I reduce two (02) months from each count for your previous good behaviour.

Now your sentence for each count stands as follows;-
First Court Burglary 08 months imprisonment
Second Count Theft 02 months imprisonment
Third Count Escaping from lawful custody 02 months imprisonment

“Usenio” you pleaded for forgiveness and applied for leniency in sentencing as you have now learnt a lesson and you will not re-offend. You urged Court to consider your young age and your desire to get into the mainstream of the society. You were forceful and potent in your Plea for a ‘Non Custodial Sentence’.

In this context, I direct myself to consider the appropriate sentence on your conviction pursuant to your plea of guilty. In doing so, I am guided by the “General Principles of Sentencing”.

Under Section 26 (2) (B) of Sentencing and Penalties Decree 2009, a Sentence below two (02) years could be suspended.

A discussion of the process which should be undertaken when a judicial officer is considering a suspended sentence is found in the decision of the New Zealand Court of Appeal in R v. Peterson [1994] 2 NZLR 533. There may be differences of details between the Fijian and New Zealand statutes. However, the principles stated in Petersen are helpful. These principles are summarized in the head note thus:

“The principal purpose of [the relevant section] was to encourage rehabilitation and to provide the Courts with an effective means of achieving that end by holding a prison sentence over an offender’s head. It was available in cases of moderately serous offending but where it was thought there was a sufficient opportunity for reform, and the need to deter others was not paramount. The legislature has given it teeth by providing that the length of sentence of imprisonment was fixed at the time the suspended sentence was imposed, that it was to correspond in length to the term that would have been imposed in the absence of power to suspend, and that the Court before whom the offender appeared on further conviction was to order the suspended sentence to take effect, unless of the opinion it would be unjust to do so. So, there was a presumption that upon further offending punishable by imprisonment the term previously fixed would have to be served (seep. 537 line 4).

The Court’s first duty was to consider what would be the appropriate immediate custodial sentence, pass that and then consider whether there were grounds for suspending it.

The Court must not pass a longer custodial sentence that it would otherwise do because it was suspended. Equally, it would be wrong for the Court to decide on the shorter sentence than appropriate in order to take advantage of the suspended sentence regime (seep. 538 line 47, p. 539 line 5). R V. Mah-Wingh (1986) 5 Cr App R (S) 347 followed.

The final question to be determined was whether immediate imprisonment was required or whether a suspended sentence could be given. If, at the previous stages of the inquiry, the Court had applied the correct approach, all factors relevant to the sentence were likely to have been taken into account already; the sentencer must either give double weight to some factors, or search for new ones which would justify suspension although irrelevant to the other issues already considered. Like most sentencing, what was required here was an application of commonsense judgment, in which the sentencer must stand off and decide whether the imposition of a suspended sentence would be consonant with the objectives of the new legislation (see p.539 line 8, p. 539 line 37).

Petersen’s case was a prosecution appeal against leniency of sentence. Petersen had pleaded guilty at early opportunity, to reasonably serious drug offences: he was sentenced in the High Court to 18 months’ imprisonment suspended for 2 years plus 9 months’ periodic detention. He had no previous drug convictions and was aged 42 with family commitments. The New Zealand Court of Appeal considered Peterson’s offending so serious that it quashed the suspended sentence and imposed one of 18 months’ imprisonment concurrent on the several charges. The Court discussed at p. 539 the factors needing to be weighed in choosing immediate imprisonment or suspended sentence in these words:

“Thomas at pp.245-247 lists certain categories of cases with which suspended sentences have become associated, although not limited to them. We do not propose to repeat those in detail since broadly all can be analysed as relating either to the circumstances of the offender or alternatively the offending. In the former category may be the youth of the offender, although this does not mean the sentence is necessarily unsuitable for an older person. Another indicator may be a previous good record, or (notwithstanding the existence of a previous record, even one of some substance) a long period of free of criminal activity. The need for rehabilitation and the offender’s likely response to the sentence must be considered. It is clear that the sentence is intended to have a strong deterrent effect upon the offender; if the latter is regarded as incapable of responding to a deterrent the sentence should not be imposed. As to the circumstances of the particular case, notwithstanding the gravity of the offence , as such there may be a diminished culpability, arising through lack of premeditation, the presence of provocation, or coercion by a co-offender. Cooperation with the authorities can be another relevant consideration. All the factors mentioned are by way of example only and are not intended as an exhaustive or even comprehensive list. The factors may overlap and more than one may be required to justify the suspension of the sentence in any particular case. Finally, any countervailing circumstances have to be considered. For example, in a particular case the sentence may be regarded as failing to protect the public adequately.

In concluding our consideration of the principles, we wish to add this. Understandably, the form of the legislation requires the sentencer to pass through a series of statutory gates, before reaching the point of availability of a suspended sentence. Subject to that however, like most sentencing what is required in the end is an application of commonsense judgment, in which the sentencer must stand off and decide whether the imposition of a suspended sentence would be consonant with the objectives of the new legislation. In many instances an initial broad look of this kind will eliminate the possibility of a suspended sentence as an appropriate response”.

D.A. Thomas in “Current Developments in Sentencing” (1969) Crim. L.R. 237 said:

“The court has refused to order suspension of a sentence passed for what amounted to a series of offences rather than an isolated one; in cases where the offence exhibits a degree of careful premeditation, or where the offence amounts to a serious breach of trust. The court is also reluctant to order suspension where the length of the term of imprisonment already makes substantial allowance for the factors which are urged as a basis for suspension.”

In O’Keefe (1969) 1 ALL ER 426, the English Court of Appeal noted that

“The court must go through the process of eliminating other possible courses such as absolute discharge, conditional discharge, probation order, fines and then say to itself: this is a case for imprisonment, and the final question, it being a case for imprisonment, is immediate imprisonment required, or can I give a suspended sentence?”

In Fiji, concern has repeatedly been expressed by the courts about the over-use of the suspended sentence. Byrne J in Nand Kumar –v- The State Crim. App. No. HAA0115.2002L said –

“In line with other judges I have frequently expressed the view that suspended sentences generally are a snare and a delusion in that they tend to give a person convicted a false sense of security and leave him under the mistaken belief that he has not done any wrong because he has not been sent to prison”

Grant C.J. said in DPP –v- Jolame Pita 20 FLR 5:

“Once a court has reached the decision that a sentence of imprisonment is warranted there must be special circumstances to justify a suspension, such as an offender of comparatively good character who is not considered suitable for, or in need of, probation, and who commits a relatively isolated offence of a moderately serious nature, but not involving violence. Or there may be other cogent reasons such as the extreme youth or age of the offender, or the circumstances of the offence.”

The Court ought to bend backwards to avoid immediate custodial sentence for first offenders. “The first offenders should not be sentenced to immediate imprisonment” (Moses Nariva –v- State, Criminal App, HAA 148/2005).

Usenio since you are clearly remorseful you must be given an opportunity to prove your remorse by embarking on a period of good behavior. In the circumstances, I decided to suspend your sentence.

“Usenio” I sentence you as follows:-

First Court Burglary 08 months imprisonment
Second Count Theft 02 months imprisonment
Third Count Escaping from lawful custody 02 months imprisonment

The operation of the term of imprisonment in three counts are suspended for two years.
[The purpose and the effect of the suspended term is explained to the accused person along with the consequences of its breach under section 26 (3) of the “Sentencing Decree”]

If an offence punishable with a term of imprisonment is committed within the operational period of the suspended sentence, the three suspended terms shall begin to run consecutively making a total of 12 months imprisonment in addition to the sentence that the accused person may get for the subsequent offence. The accused person is also informed that the commission of an offence punishable with imprisonment during the operation of the suspended term is an offence itself against section 28 of the Sentencing Decree for which the accused person could be arraigned and punished by the Court.

28 days to appeal.

Dated at Lautoka on the 17^th day of November 2011.

..................................
Jude Nanayakkara

RESIDENT MAGISTRATE

MAGISTRATE COURT – 03
LAUTOKA