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Navuda v The State [2005] FJHC 131; HAA0138.2004 (14 June 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA0138 OF 2004

BETWEEN:

AKUILA NAVUDA
Appellant

AND:

STATE
Respondent

Counsel: Appellant – In Person
Ms N. Tikoisuva – for State

Date of Hearing & Decision: 14th June, 2005

EX TEMPORE DECISION

This is an extempore decision given at the end of a short sentencing appeal. As such I reserve the right to recall or perfect the decision.

Background

The accused with another were charged with 42 counts of housebreaking, entry and larceny contrary to Section 300(a) of the Penal Code Act, Cap 17.

The background to the matter is that they broke and entered the Balantine Memorial School for girls and once successfully inside the girls dormitory they stole a number of items of property and clothing belonging to the students.

In essence this resulted in the 30 separate charges that this appellant faced. On the 28th of April 2004 the case was called before the learned Magistrate and the 30 counts were put to the appellant. He pleaded guilty in respect of 15 of those counts. Again he appeared on the 8th of June 2004 he was sentenced to 3 years for those 15 counts to be served concurrently.

He was brought back before the Court again on the 13th of October 2004 to proceed to trial on the remaining counts. At the commencement of trial the appellant indicated he wished to change his plea. He was convicted and sentenced to 12 months imprisonment for each count to be served concurrently with each other but cumulatively upon the term that he was currently serving. In total then this young first offender received a term of 4 years imprisonment for one event.

He brings an appeal now primarily on the grounds that his sentence was harsh and excessive and in particular he highlights:

1. That the learned Magistrate failed to take into account he was a first offender.
   
2. The learned Magistrate failed to take into account the fact of his early guilty plea.
   
3. The fact that the learned Magistrate failed to respect the totality principle bearing in mind this was one event the learned Magistrate should, it is argued, have imposed at the very least a concurrent term on the second bracket of offending which came before the Court on the 13th of October 2004.
   

State counsel has prepared a very thoughtful and very helpful submission that quite properly confronts these issues but does so in a responsible fashion. Counsel has quite properly analyzed the judgment and concedes that the appellant received a manifestly excessive sentence. Counsel observes and I agree that this was a series of offences relating to individual items of property stolen in one event. As such while not duplicitous the number of charges do not properly reflect the true culpability of this offender. At the very least, counsel concedes that the appellant should have received a concurrent penalty for the second bracket of offending dealt with at the hearing in October 2004.

Counsel then refers to a number of Fiji High Court Case and in particular Kunaga v State, HAA0055 of 2004 a decision of my sister Justice Shameem where suggested guidelines are made for burglary and larceny.

In the course of that judgment my learned sister Justice observed short prison sentences at the lower end of the tariff are reserved for petty offences, offenders who play only a marginal role or are young first offenders. Indeed my learned sister Justice goes on to indicate that suspension of sentences of imprisonment could be considered for young first offenders. It is generally agreed that a starting point for this sort of one event but multiple charge offending is in the 2 to 3 year category with allowances being made for aggravating and mitigating factors.

Decision

It is clear the learned Magistrate fell into error when considering the sentencing of this young first offender. I propose giving my decision in date order.

Firstly in relation to the offences considered on the 13th of April 2004. This bracket of offences attracted a 3 year term of imprisonment. When I consider the sentencing notes it is clear that while the learned Magistrate elected a starting point and then aggravated that starting point to a sentence of three years imprisonment he failed to take into account the fact that this young man was a first offender and the fact that he was entitled to a significant discount for an early guilty plea.

That being the case it would be my view that allowing for the mitigation of his youth, the fact that he was a first offender and the fact that he pleaded guilty then from the aggravated term of imprisonment of 3 years one would need to deduct 1 ½ years making an overall sentence of imprisonment of 18 months.

Concerning the subsequent but related sentencing of 13th of October 2004 the learned Magistrate did not at that time reflect on the totality principle.

That principle requires a sentencing judge at the end of the day to stand back and assess the proper and just sentence for an accused assessing his true total culpability for the subject offending.

In this case the learned Magistrate did not ask himself whether the sentence he imposed later in 2004 for the same event should be concurrent or consecutive.

In my view because of your early guilty plea (albeit at the door of the court) and because the bracket of offending happened during the one event and because of your youth this was an appropriate case where a concurrent sentence should have been imposed.

Conclusion

For all of these reasons in my view the appropriate penalty should be one of 18 months imprisonment in total and accordingly in conclusion I grant the appeal. The sentence passed on the 8th of June 2004 is quashed and substituted with a sentence of 18 months imprisonment on all charges, concurrently. That sentence to have effect from the 8th of June 2004. In respect of the second sentence in October 2004 that sentence is quashed. It is substituted with a term of 12 months imprisonment. In respect of each count to be served concurrently as between each count and concurrently with the term imposed with effect from the 8th of June 2004. Accordingly the overall sentence for this appellant is reduced from one of 4 years imprisonment to one of 18 months imprisonment with effect from the 8th of June 2004.

Gerard Winter
JUDGE

At Suva
14th June, 2005