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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO: HAA 011 of 2009
BETWEEN:
THE STATE
Appellant
AND:
RUPENI NADURU
Respondent
Date of Hearing: 28th August 2009
Date of Ruling: 21st September 2009
Counsel: Mr. T. Muloilagi for State Respondent in person
RULING
[1] On 4 September 2009 I refused an application for enlargement of time to appeal against sentence by the State. I now give my reasons.
[2] The respondent pleaded guilty to an offence of arson in the Magistrates’ Court and was sentenced to 9 months imprisonment on 5 February 2009. An untimely appeal against sentence was filed by the State on 19 March 2009.
[3] Section 310(2) provides that appeals to the High Court must be filed within 28 days from the date of the decision appealed against, unless the Court has extended the statutory appeal period. The appeal period in this case expired on 5 March 2009. Thus, the appeal was out of time by 14 days. I do not consider the length of delay in the present case to be unreasonable albeit no reasons have been advanced for the delay.
[4] However, the length of delay and the reasons for delay are not the only matters to be considered. For an enlargement of time to appeal, the prospect for success in the appeal and the prejudice to the opponent party are relevant considerations.
[5] In August 2009, the respondent was released from prison to serve his remaining sentence extramurally. If the appeal is allowed and the sentence enhanced, the respondent will have to return to prison to serve a more severe sentence. In this regard the respondent will be prejudiced.
[6] The State advances three grounds of appeal. The first ground is that the sentence is wrong in principle. The State says the sentence is wrong in principle in three aspects.
[7] Firstly, the State contends that the term of 9 months imprisonment does not reflect the gravity of offence, citing Baumer v.Queen (1988) 166 CLR 51. Secondly, the State contends that it is wrong in principle to impose a sentence that is below the tariff for the offence of arson, which is 2 to 4 years imprisonment, citing Tuitokova v. State [2005] FJHC 452. Thirdly, the State contends that it is wrong in principle to give separate consideration to guilty plea from other mitigating factors. The State says that guilty plea is a mitigating factor and should be considered together with other mitigating factors when a reduction is made to reflect these factors.
[8] The second ground is that the learned Magistrate took into account irrelevant factors in the sentence, namely, the value of the property.
[9] The third ground is that the sentence is manifestly lenient because it is well below the range for this type of offence.
[10] I find the State’s arguments are based on flawed understanding of sentencing process. The sentencing process is not a mathematical exercise. In Maciu Koroicake Criminal Appeal No. CAV0006 of 2005S, the Supreme Court explained the sentencing process:
".....It is an exercise of judgment involving the difficult and inexact task of weighing both aggravating and mitigating circumstances concerning the offending, and recognizing that the so-called starting point is itself no more than an inexact guide. Inevitably different judges and magistrates will assess the circumstances somewhat differently in arriving at a sentence. It is the ultimate sentence that is of importance, rather than each step in the reasoning process leading to it. When a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step in the reasoning process that must be considered. Different judges may start from slightly different starting points and give somewhat different weight to particular facts of aggravation or mitigation, yet still arrive at or close to the same sentence..."
[11] In his sentencing decision, the learned Magistrate said:
"Arson carries a maximum sentence of life imprisonment.
A person guilty of arson should expect to be dealt with severely by the Courts. Scott J emphasizes this point in his judgment in Robert Chute –v-Sta> [1998] HA8] HAA 0063/97B 27 February 1998 when he said the following words:
"The community needs to be re-assured that the Courts will deal cnly with those committing this offence."
The tThe tariff ranges from 2 years to 4 years imprisonment (see Shameem J’s judgments in Aporosa Tuitokova & Ors –v-State [2005] HAA 67, 70 & 73/05S Sentence 14 November 2005, and in Kelemedi Lagi & Ors –v-State [2004] HAA 004/04S Judgment 12 March 2004.
In Kelemedi Lagi a vacant house had been set on fire causing extensive damage. The fire caused such trauma to the family who were living in fear – though no longer living in the house. Here, a starting point of 3 years was considered to be appropriate by Shameem J.
The case of Koya v State [1997] FJCA 15; AAU0011u.06s (16 May 1997) is a leading authority for arson for gain. The Appellant had set fire to a building in an insurance fraud to recoup business losses. Evidence of premeditation was taken into account as well as the fraudulent objectives – and the consequential risks to the lives and property of others. Here, the Court firstly identified the tariff for arson for gain as between 3-5 years. All three judges agreed that a sentence of 3 years imprisonment for the offence was not excessive but they reduced the sentence to two years imprisonment because of the age of the appellant. In that case there was evidence of careful planning and the loss suffered was about $90,000. The motive was gain.
In Eremasi v The State [1998] F1; Ha1; Haa0056j.97b (26 January 1998), the High Court in Labasa confirmed a sentence of 12 months by the Magistrates Court. In that case the accused was not a offender.
In Donato Vakabale v. Thv. Thete C/b> Crim. App. No. HAA0051 of 2002, Shameem J upheld a sentence of 4 years imprisonment partly because the appellant had threatened to kill anyone who helped the occupants of the bg house escape.
In Lagi v The State<2004] FJHC 69; HA9; HAA0004J.2004S (12 March 2004) Shameem J upheld a sentence of 3 years imprisonment for arson where the appellants had come armed and burnt the house of a villager forcing to leave the village. She cohe considered that a sentence of 2-4 years was appropriate for such offending.
Sentences of 2 years have been upheld where there was no danger to human life (Amina Koya) and sentences of 4 years upheld where the house burnt was occupied and there was a reckless disregard for human life (Donato Vakabale).
In your case, the main aggravating feature is the breach of trust involved.
The mitigating feature is that the value of the building was, relative to other arson cases on record, no much (only $3,000-00). Also, the building was unoccupied and there was no reckless endangerment to human life involved.
I have also taken into account your personal mitigation: you are 35 years of age, single, unemployed and you reside in the village – and the points raised by Mr. Maitava this morning.
I consider 3 years to be the appropriate starting point. For the aggravating features, I increase that to 3½ years. For the strong mitigating features, I reduce that to 16 months. For pleading guilty at first opportunity – I reduce that to 9 months.
I see no reason why I should suspend your sentence and you are to serve your 9 month term in jail."
[12] As can be seen, the learned Magistrate gave detailed reasons for the sentence he imposed on the respondent. The term of 9 months imprisonment was arrived at after considering the tariff for the offence and the relevant mitigating and aggravating factors present in the case. The value of the property may not have operated as a distinct mitigating factor, but the value of property was relevant in selecting an appropriate starting point within the tariff. The small value of the property and the fact that the building was unoccupied justified the offence to fall within the lower range of the tariff. The respondent entered an early guilty plea. He was entitled to substantial reduction in the sentence for the early guilty plea, personal circumstances, and for previous good character.
[13] The term of 9 months imprisonment which is below the tariff, reflects the compelling mitigating factors present in this case. The learned Magistrate considered the gravity of the offence and decided not to suspend the sentence.
[14] What the learned Magistrate did not consider was the age of the offence. The respondent committed the offence on 27 June 2007. He was caution interviewed on 9 July 2007. In his caution interview, the respondent confessed to the offence. However, the respondent was not charged until 9 December 2008. By the time the respondent was charged, the offence was 18 months old.
[15] The State offered no explanation for the delay. If the delay would have been considered by the learned Magistrate, the sentence of the respondent could have been less.
[16] For these reasons the sentence of 9 months imprisonment imposed on the respondent is neither wrong in principle nor manifestly lenient. The State’s appeal against sentence is bound to fail and therefore the application to appeal out of time is refused.
Daniel Goundar
JUDGE
At Labasa
21st September 2009
Solicitors:
Office of the DPP for State
Respondent in person
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