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Chirk King Yam v State [2015] FJCA 23; AAU0095.2011 (27 February 2015)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO: AAU0095 of 2011
High Court Case No. HAC 0077 of 2008

BETWEEN:

CHIRK KING YAM
Appellant

AND:

STATE
Respondent

Coram : Calanchini P
Lecamwasam JA
Jayasuriya JA

Counsel : Ms. S. Vaniqi for the Appellant
Mr. S. Babitu for the Respondent

Date of Hearing : 11 February 2015
Date of Judgment : 27 February 2015

JUDGMENT

Calanchini P:

[1] I have read in draft the judgment of Lecamawasam JA and agree with his proposed orders.
Lecamwasam JA:

[2] The appellant was convicted by the High Court at Lautoka upon pleading guilty to five charges of fraud related offences arising from the theft of $1.3 million from Warwick Resorts, where the appellant was the Financial Controller. Upon pleading guilty, having considered the aggravating and mitigation factors the Learned High Court Judge convicted the accused and sentenced him to six (6) years imprisonment with five years being non-parole.

[3] The appellant had appealed against the sentence on the following four grounds of appeal:

1. That the learned Judge erred in law and in fact when he passed the sentence which was wrong in principle and or manifestly harsh and excessive considering all the circumstances of the case including;

(i) the disparity of the sentence in principle to other like offending and;

(ii) the nature of the defence advance and the absence of correct calculation of the time deducted for early plea;

(iii) the proper analysis and deduction from mitigation.

2. That the learned trial Judge erred in law and in fact when he passed sentence based upon wrong factual basis and on matters which had been improperly taken into account and/or took fresh matters into account which were not admitted to, in the information and in the summary of facts, thereby prejudicing the appellant's right to have his sentenced determined fairly.

3. That the learned trial Judge failed to properly take into account the appellant's guilty plea and therefore failed to discount the appellant's sentence in accordance with law and such failure gave rights to the excessiveness and harshness of the sentence.

4. That the learned trial Judge failed to give the appellant an opportunity to be heard on the issue of non-parole period and therefore prejudiced the right of the appellant to respond to the manner of sentence meted by the trial court.

[4] The learned single Judge who heard the application for leave to appeal after a careful consideration of all the circumstances of the application granted leave to proceed with the appeal against sentence on grounds 2 and 4 only. However, at the argument stage the learned counsel for the appellant confined herself only to the fourth ground of appeal, that is, failure to afford an opportunity to be heard on the issue of non-parole period.

[5] A court of law affords an opportunity to be heard to an accused person before the sentence is passed. Granting a parole or non parole term constitutes a part of the sentence itself. Having been afforded an opportunity to plead in mitigation at the sentencing stage, it is not desirable nor is it logical to afford another chance to address court before a parole or non parole term is given. Parole is governed by Section 18 of the Sentencing and Penalties Decree which states:

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

18.(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 in appropriate, the court may decline to fix a non-parole period under subsection 1.

18.(4)...any non parole period fixed under this section must be at least six months less than the term of the sentence".

[6] The learned Judge had complied with Section 18(4) and correctly fixed the non-parole period to be at five years, six months less than the head sentence of six years. I do not see any illegality in this order.

[7] However, I was inspired by the judgment of Redlich JA and Osborn JA in Kumova v The Queen [2012] VSCA 212 (21 September 2012) cited by the appellant (of which Calanchini P- Honourable President of the Court of Appeal, Fiji was kind enough to provide me with a hard copy). In their reasoning in the above case their Lordships have observed "no matter how different the individual offence may be and how different the personal circumstances of the offender, the principles which bear upon the determination of how much of the head sentence the prisoner should be required to serve before becoming eligible to conditional freedom, provide a significant level of constraint as to the range of minimum sentences that are open. So the gap between the head and the minimum sentence cannot become so great that the minimum sentence no longer adequately reflects the gravity of the crime and fails to satisfy punitive sentencing principles. Furthermore, very long parole periods are rarely desirable. On the other hand, the minimum sentence cannot be fixed so close to the head sentence that it may fail to give effect to the prisoners' prospects for rehabilitation and so mitigate punishment. The prospect of early release also serves as an incentive to the prisoner to behave within the prison setting and to pursue rehabilitative programmes. In every case, these considerations serve to confine the choice as to the proportion of the head sentence that must be served. The law does not permit idiosyncratic or unprecedented views to influence the length of a term of imprisonment that may be imposed. The practice also informs the question whether the particular minimum sentence that has been imposed is one that was reasonably open. "

[8] In the case at hand I am of the view that the non parole term of five years is too close to the head sentence of six years. As observed by their Lordships when the minimum sentence is too close to the head sentence, the prospects of rehabilitation are limited. Therefore to afford the prisoner motivation to avail himself of rehabilitative opportunities within the penitentiary system in a bid to mitigate the rigors of punishment to achieve meaningful rehabilitation, I reduce the term of non parole to 4 years. To that extent and for the above reasons the appeal succeeds.

Jayasuria JA:

[9] I had the opportunity to read the draft judgment of Lecamwasam JA.
The Learned trial Judge in deciding the sentence in this case had taken into account inter alia "it was a veiled assault on the tourist industry as a whole; it could have severely damaged a resort which is extremely popular with foreign tourists" as an aggravating factor. Neither the particulars of the offences nor the summary of facts filed by the State on 30th May 2011 contain any material to substantiate the above mentioned factor which the learned trial Judge had taken into account as an aggravating factor in calculating the sentence.

In view of the above and for the reasons set out by Lecamwasam JA, I agree to alter the non parole period to 4 years.

The Orders of the Court are:

1. Appeal allowed in part.
2. Non parole term is reduced to 4 years.
   

Hon. Mr. Justice William Calanchini
President, Court of Appeal

Hon. Mr. Justice S. Lecamwasam
Justice of Appeal

Hon. Mr. Justice Jayantha Jayasuriya
Justice of Appeal