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Nausa v State [2015] FJCA 43; AAU42.2013 (19 March 2015)

IN THE COURT OF APPEAL
AT SUVA
CRIMINAL APPEAL NO. AAU 42 OF 2013
(High Court HAC 23 of 2012)

BETWEEN:

ISOA NAUSA
Appellant

AND:

THE STATE
Respondent

Coram : Chandra RJA
Counsel : Mr. S. Waqainabete for the Appellant
Mr. M. D. Korovou for the Respondent

Date of Hearing : 21 January 2015
Date of Ruling : 19 March 2015

RULING

1. The Appellant was charged with 1 count of Burglary contrary to section 312(1) and one Count of Theft contrary to section 291 (1) and (2) of the Crimes Decree, 2009.
   
2. The Appellant on seeing the Complainant leaving the house had entered the house and taken beer bottles and frozen food from fridge, and a bag containing valuable items such as a gold chain, gold bracelet, foreign currency notes and had lavishly spent the money to buy liquor.
   
3. The Appellant pleaded guilty and was convicted and sentenced by the Magistrate's Court to a term of 20 months imprisonment on the 1st count and 16 months imprisonment on the 2nd count, the sentences to run concurrently.
   
4. The Appellant appealed against his conviction and sentence to the High Court at Lautoka. The appeal was dismissed by the High Court and his sentence was enhanced to 6 years imprisonment with a non-parole period of 5 years.
   
5. The Appellant in his appeal against his sentence has set out the following grounds of appeal:
   
   • (1) That the Appeal Judge of the High Court erred in selecting a starting point outside the tariff guidelines for starting point.
     
   • (2) That the Appeal Judge of the High Court erred in failing to observe section 4 (2)(d) of the Sentencing and Penalties Decree, and by failing to have reference in his judgment to any of the current sentencing practices and the terms of any applicable guideline judgment resulting in the starting point been harsh and the overall sentence being harsh and excessive.
     
   • (3) That the aggravating features not recognized by law was considered to enhance the sentence.
     
   • (4) The mitigating features were not considered.
     
   • (5) That the sentence was manifestly harsh and excessive and wrong in all the circumstances of the case.
     
   • (6) That there is an unjustified and disproportionate disparity of sentence imposed between offenders sentenced in respect of offences in comparison of this same nature.
     
6. An appeal lies to the Court of Appeal from the decision of the High Court exercising its appellate jurisdiction in terms of section 22(1A) of the Court of Appeal Act (Cap.12), which provides:
   

"No appeal under this section (1) lies in respect of a sentence imposed by the High Court in its Appellate jurisdiction unless the appeal is on the ground –

(a) The sentenced was an unlawful one or passed in consequence of an error of law;

or

(b) That the High Court imposed an immediate custodial sentence in substitution for a non-custodial sentence."

7. The main basis of the grounds of appeal urged by the Appellant is that the sentence is harsh and excessive as the learned Judge had selected a starting point outside the tariff and not taking into account current sentencing practices when enhancing the sentence.
   
8. The learned High Court Judge had not considered the establish tariff for the offence of burglary which is 18 months to 3 years imprisonment, State v Vikatore Tabeusi [2010] FJHC 426.HAC 095 – 113.2010L (16 September 2010), and the tariff for theft which is 2 to 3 years imprisonment – State v Frank Konare [2013] FJHC 399 HAC 346.2011S (12 August 2013).
   
9. The High Court Judge having set aside the sentence imposed by the Magistrate's Court had selected 8 years imprisonment as a starting point regarding the offence of burglary and 4 years imprisonment for theft which is higher than the tariff for the said offences, and ended up with an enhanced sentence of 6 years imprisonment with a non-parole period of 5 years.
   
10. As the learned High Court Judge had selected a starting point outside the tariff for the said offences, the question of whether the enhanced sentence was harsh and excessive becomes arguable.
    
11. Since the ground of appeal is arguable leave is granted to the Appellant.
    

Order of Court:

Leave to appeal against sentence is granted.

Hon. Justice S. Chandra
Resident Justice of Appeal