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Uluinabukelevu v State [2011] FJHC 663; HAM105.2011 (21 October 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

H.C. CRIMINAL CASE NO: HAM 105/2011
M. C. CRIMINAL CASE NO: 02/2011

BETWEEN:

JOHN VODO ULUINABUKELEVU
APPELLANT

AND:

STATE
RESPONDENT

Before : Priyantha Nawana J.

Counsel

For Appellant: In person
For Respondent: Ms K Semisi, State Counsel

JUDGEMENT

1. The appellant appeals out of time, with leave of this court dated 16 September 2011, against the sentence imposed by the learned Magistrate of Lautoka in the above case on 13 January 2011.
   
2. The sentence was sequel to convictions following the appellant's individual pleas of guilty in respect of two charges each of 'Burglary' in Count Nos (1) and (3); and, 'Theft' in Count Nos (2) and (4) punishable respectively under Sections 312 (1) and 291 (1) of the Crimes Decree No 44 of 2009.
   
3. Particulars of the offences, as revealed by the four charges and the summary of facts, were that the appellant, who was the junior-chef at a well-known Island Resort in Yasawa, had stealthily broken into two separate bures of two guests accommodated by the Resort on 30 December 2010.
   
4. In the first instance, the appellant admittedly broke into Guest Bure No 3 of the Resort occupied by the guest, Rachael Crally, 26, a journalist by profession from Mississippi, Texas of the United States of America; and, stole one Apple brand laptop computer with its case and the charger, a Lacoste Men's wristwatch and a navigation system. The total value of the property was Australian $ 3000.00.
   
5. In the second instance, the appellant admittedly broke into Guest Bure No 21 of the Resort occupied by the guest, Jarl Olsson, 56, an economist by profession form Memo, Sweden and stole one iPod with a speaker, a Canon brand 20 cm black-lensed digital camera with its charger, one iPhone, one 700 ML Crown Royal Whisky and one 200 ML Southern Comfort Liquor. The total value of the property was Australian $ 7000.00.
   
6. The two instances constituted distinct offences and gave rise to the two charges of 'Burglary' and two charges of 'Theft' as set-out above.
   
7. Mr Crally had checked-in at the resort on 29 December 2010 along with his fiancée for ten days while Mr Olsson, together with his family, had checked-in for three nights. All guests were out at dinner at the resort's dining room between 1915 hrs-2330 hrs. on 30 December 2010.
   
8. Investigations, as admitted by the appellant, revealed that he [the appellant] had entered into the two bures through the bathrooms and gained access to the guestrooms and stole the property, while the guests were out at dinner at the resort's restaurant.
   
9. The appellant's interview under caution disclosed confessions on the two sets of crime and that the stolen items were concealed under sand at the beach beside Nalauwaki Village in Waya of Yasawa Islands. All the lost items were, consequently, recovered on the information of the appellant and handed-over to the complainant-guests before they left the country on 03 January 2011.
   
10. Learned Magistrate, having considered separate pleas of guilty and the acceptance of the summary of facts by the appellant, as set-out above, imposed a term of nineteen (19) month imprisonment for each count of 'Burglary'; and, a term of four (04) month imprisonment for each count of 'Theft'.
    
11. Learned Magistrate relied on a number of authorities and determined that the tariff for the offence of 'Burglary' was eighteen (18) months to three (03) years, while the tariff for the offence of 'Theft' was two (02) to nine (09) months. The learned Magistrate also correctly bore in mind the applicable legal provisions in regard to the imposition of an appropriate sentence on the appellant in terms of Section 4 of the Sentencing and Penalties Decree No 42 of 2009; and, the relevant principles on sentencing as enunciated in legal texts.
    
12. Starting points of twenty (20) and five (05) months were, accordingly, decided upon by the learned Magistrate in respect of the offences of 'Burglary' and 'Theft' respectively. Each term was increased by five (05) months for the factors of:
    
    • (i) Planning involved in the commission of the offences;
      
    • (ii) High value of the stolen property; and,
      
    • (iii) The immediate and direct effect created on tourism industry,
      

which the learned Magistrate found to have aggravated the offences.

13. Learned Magistrate, having arrived at interim terms of twenty five (25) months and ten (10) months for each offence, as applicable, reduced the terms by two (02) months on the basis of a combination of mitigatory factors being:
    
    • (i) The stolen property was recovered;
      
    • (ii) The appellant was co-operative with police; and,
      
    • (iii) The appellant was remorseful and apologetic to court.
      

Learned Magistrate further reduced one (01) month each for the early guilty plea, for disadvantaged personal background, for previous good behaviour and for the period on remand.

14. Accordingly, the final sentences of nineteen (19) and four (04) months in respect of each offences of 'Burglary' and 'Theft' were reached by the learned Magistrate. The sentences were ordered to run concurrently.
    
15. Having elaborately dealt with the principles pertaining to the suspension of a term of imprisonment, the learned Magistrate did not find the circumstances in the case in favour of the appellant to suspend the aggregate sentence of nineteen (19) month imprisonment.
    
16. At hearings of the application for leave to appeal out of time and of the appeal, it was submitted by the appellant that the sentence was harsh and excessive as he was a first offender. The appellant specifically contended that the learned Magistrate did not correctly discount for his early guilty plea in view of his failure to reduce the sentence by a 1/3.
    
17. As the appellant was appearing in person at the hearing, the provisions of Section 256 of the Criminal Procedure Decree No 43 of 2009 in regard to the appellate powers of the High Court, in general, and, the provisions of its sub-section 3, in particular, were explained to the appellant when leave was sought to appeal out of time.
    
18. Such a course of action became necessitated as this court found that certain matters had not been considered by the learned Magistrate in passing the sentence; especially, the aspect of breach of trust by the appellant in committing the offences while in employment at the resort in hospitality trade. The appellant was accordingly invited to address court on the issue at the hearing into the appeal on 14 October 2011 because this court, in the circumstances, could substitute the learned Magistrate's sentence with an enhanced sentence.
    
19. The appellant, without making any attempt to negate the issue, nevertheless, continued to contend that he was a first offender and that the sentence was harsh and excessive and alluded to the proposition that the learned Magistrate was obligated to impose a suspended sentence.
    
20. I have carefully considered the appeal of the appellant, his oral and written submissions and those of the State in light of the facts of the case and applicable legal principles.
    
21. The learned Magistrate, in my view, is correct on the applicable tariffs of sentences for the offences of 'Burglary' and 'Theft'. The State, too, did not raise an issue on the applicability of the two tariffs for the two offences in this case; or, on the choice of the starting points. In the circumstances, I do not disturb the learned Magistrate's determination as to the starting points on the basis of the applicable tariffs.
    
22. The main complaint of the appellant, however, was with regard to the inadequate discount afforded to him for his early guilty plea. The State conceded that the reduction of the sentence only by only one (01) month for the early guilty plea was inadequate and such reduction was not in accord with the precedents as laid down in Maharaj v State [2011] FJHC 373 and Waqalevu v State [2010] FJHC 468.
    
23. There is no rule as to how much of discount should be given to a plea of guilty. It is, nevertheless, almost hardened as a practice for courts to grant a discount approximately of 1/3 of the sentence for a plea of guilty that is tendered at the earliest possible opportunity by an accused-person, as could be seen from the above judicial precedents.
    
24. There would be no gainsaying in the usefulness of having one uniform formula as to the amount of possible reduction of a sentence in the event of an early guilty-plea. Such a formula will serve to establish certainty and uniformity on this important area of law in the system of administration of criminal justice. While the elements of certainty and uniformity are sine qua non for any system of justice to flourish, uniformed recognition in principle of the amount of reduction of a sentence consequent upon a guilty plea, on the other hand, could contribute to encourage and promote accused-persons to avoid protracted trials. They would, acccordingly, endeavour to achieve the benefit of a reduced sentence on a guilty plea.
    
25. In as much as the quantum of discount afforded to an accused-person in the case of a guilty plea hitherto lacked certainty and uniformity, it also appears to be so as to the most appropriate time that such discount should be taken into account. It is clear that, in some cases, the discount is credited from the base sentence or at the so-called starting point while, in the others, discount is credited either from the interim sentence after adding-up the aggravating factors or after reducing the sentence on account of mitigatory factors.
    
26. I am of the view that such discount should be afforded at the stage, which would give the maximum benefit to an accused-person, because a practice in criminal procedure, like interpreting a rule, should always be adopted in a manner favourable to an accused-person. I would, accordingly, subscribe to the view that the most opportune time to calculate discount on the basis of the 1/3 formula would be at the interim stage of the contemplated sentence after adding-up the terms for aggravating factors. The discount for the guilty plea, accordingly, should find its place immediately before the sentence starts its [downward] descend on the basis of mitigatory factors.
    
27. It is clear that the learned Magistrate increased the term at the starting points by adding-up five (05) months each for the combination of aggravating factors as shown above. His Worship then reduced the sentence by two (02) months on the basis of the combination of mitigatory factors. He then proceeded to reduce one (01) month for the guilty plea. His Worship, having quantified the reduction of the sentence in relation to each factor of disadvantaged personal background [one (01) month], previous good behaviour [one (1) month] and period of remand [one (01) month], further reduced the sentence by three (03) months on account of foregoing matters.
    
28. Learned Magistrate's approach of quantifying the reducible amounts of sentence in relation to the personal background, previous good behaviour and the period on remand is appreciable. However, the learned Magistrate does not seem to be correct when he chose to combine a variety of unrelated things under the heading of 'Aggravating Factors', as shown above, and make an increase by five (05) months in common for the two sets of offences. Instead, he should have individually quantified the amount of increase in relation to each aggravating factor as each one of them had distinct attributes.
    
29. 'Planning', for example, is something that is connected with the conduct of the accused-person and his manner of offending. The 'Value of the Stolen Property' is a thing attached to the property itself independent of the accused-person's conduct. The 'Immediate and Direct [adverse] Effect on Tourism Industry' is consequential to the offence, though very important, could not be immediately felt by the victim but by some others including the State and its organs. Therefore, it is not possible to shoehorn all those matters in one category and give one increase in common to all of them; because, each factor cannot be equally apportioned in view of each one's distinct and variable attributes as set-out above.
    
30. Quantification of the amount in relation to any factor for the upward or downward variation of the sentence is also essential because it enables an appellate court to decide whether right quantum has been afforded by a court below like in this case where the appellant complained that the discount for the guilty plea is manifestly inadequate.
    
31. As regards the discount for the early guilty plea, it is important to note that the learned Magistrate has downplayed it both in terms of its quantum and its positioning in the process of calculation. I am of the view that the appellant was entitled to a discount of 1/3 of the contemplated sentence at the interim after adding-up the factors of aggravation.
    
32. In addition to the above, the learned Magistrate erred in law in applying the aggravating factors both in respect of the offences of 'Burglary' and 'Theft' in common. For example, the 'Value of the Stolen Property', which was in any case varied in the two instances, could not have been considered as an aggravating factor in relation to the offence of 'Burglary' and also in common to the two offences of 'Theft' due to the difference in value of the respective items of property stolen.
    
33. The learned Magistrate, having, in my view, failed to accommodate the aggravating factors correctly and in an accountable way, also took no notice of an important aggravating factor arising out of the issue of breach of trust by the appellant, who was an employee of the resort.
    
34. R v Barrick, 81 Cr. App. R. 78, though dealt with a case of fraud, provided useful guidelines on the imposition of an appropriate sentence on an errant employee convicted of criminal offences in breach of employer's trust. It was held in Barrick that court should have regard to factors of:
    
    • (i) The effect upon the victim(s);
      
    • (ii) The impact of the offences on the public and public confidence; and,
      
    • (iii) The effect upon fellow-employees etc. in determining the sentence.
      

I am of the view that these guidelines need be suitably adopted to deal with the proper sentence in this case as well, as facts reveal a breach of trust by the appellant by committing the four offences whilst in employment.

35. The appellant, who was the junior-chef of the resort, was holding a position of trust on account of his employment. The employer, which was engaged in hospitality trade by running the resort, would certainly have reposed immense trust and would never have expected the appellant to have invaded the privacy of its guests. It was more so when the appellant's duties were expected to have been performed in the kitchen of the resort. The appellant's offending was, therefore, a clear case of breach of trust that needed to be taken into account in the matter of sentence.
    
36. The appellant's duty was misused as he intruded into the guest bures when the guests were out at dinner and; as such, it involved a great deal of planning, which included well-timing.
    
37. The two complainant-guests along with those accompanied them obviously would have been subjected to great humiliation, fear-psychosis and a sense of insecurity in addition to the affectation of their respective purposes for which they accommodated themselves at the resort.
    
38. The tourism industry is bound to have its adverse effects and the image of the country and her people are tarnished.
    
39. In light of the factors as particularized in paragraphs 35-38 above, which are aggravating in nature, I am of the view that the sentence of the learned Magistrate needs be reconsidered and substituted with a sentence of this court.
    
40. Accordingly, I increase the starting point of 20 months for the offence of 'Burglary' by adding eight (08) months to reflect the breach of trust by the appellant as set out in paragraph 35. Furthermore, I increase the sentence by six (06) months each for the matters set out in paragraphs 36-38 above and arrive at the interim terms of 46 months. I reduce the term by 1/3 to give substantial discounts for the very early guilty plea, which showed true remorse, and reach at the term of thirty one (31) months. I further reduce the term by four (04) months acknowledging the fact that the appellant was a young first offender and also by another three (03) months to reflect his disadvantaged personal background to arrive at the term of twenty four (24) months.
    
41. In the result, I sentence the appellant for 'Burglary' in Count Nos (1) and (3) for twenty four (24) months each.
    
42. As regards the offence of 'Theft', I increase the starting points of five (05) months by eight (08) months to reflect the breach of trust by the appellant and reach at the terms of thirteen (13) months. The term in relation to Count No (2) is further increased by four (04) months to denote the high value of the property; and, the term in relation to Count No (4) is increased by seven (07) months to denote the higher value of the property. The two terms are further increased by adding another four (04) months each to penalize for the blameworthy conduct of the appellant in concealing the property. Accordingly, the interim terms arrived at in relation to Count Nos (2) and (4) respectively are twenty one (21) months and twenty four months (24).
    
43. I reduce each term by 1/3 to afford a substantial discount for the very early guilty plea, which showed true remorse and reach at the terms of fourteen (14) and sixteen (16) months. I further reduce the term by two (02) months acknowledging the fact that the appellant was a young first offender; and, also by another two (02) months to reflect his disadvantaged personal background. A further reduction of two (02) months is given as the appellant had co-operated with police resulting in the recovery of the property to enable restitution to the complainants.
    
44. In the result, I sentence the appellant for 'Theft' in Count No (2) to a term of eight (08) months; and, in Count (4) to a term of ten (10) months.
    
45. The question that arises for consideration now is whether the sentences should be suspended.
    
46. I had the occasion of considering the propriety of imposing suspended sentences on first offenders, who also happen to be young, in the case of State v Tilalevu [2010]FJHC 258 where I held that:
    

'... the imposition of suspended terms on first offenders would infect the society with a situation - which I propose to invent as 'First Offender Syndrome' - where people would tempt to commit serious offences once in life under the firm belief that they would not get imprisonment in custody as they are first offenders. The resultant position is that the society is pervaded with crimes. Court must unreservedly guard itself against such a phenomenon, which is a near certainty if suspended terms are imposed on first offenders as a rule.'

47. Section 4 of the Decree on 'Sentencing Guidelines', has been founded on the jurisprudential principle of 'balancing competing interests' of the offender, the victim and the society at large. It is, therefore, of paramount importance for any sentence to reflect court's bounden duty of protecting the community and its (court's) unhesitant approach of denouncing the commission of the offence within the prescribed parameters under the law. This can be manifested only by deterring the offenders and others who tempt to commit crime.
    
48. In the circumstances, I agree with the reasoning of the leaned Magistrate as to the issue of the suspension of the sentence. I am, therefore, not inclined to suspend the sentences in respect of the four charges. Instead, I order the sentences to run concurrent to each other. Acting under Section 18 of the Sentencing and Penalties Decree, I order that the appellant shall not be entitled to be released on parole until he serves a period of fifteen (15) months.
    
49. The appeal of the appellant partly allowed. Sentence of the learned Magistrate set-aside and substituted with an enhanced sentence of the High Court. The appellant to serve a minimum period of fifteen (15) months in imprisonment before being eligible for parole. This term is deemed to have begun to run from 13 January 2011, the date of sentence by the learned Magistrate.
    

Priyantha Nawana
Judge

High Court
Lautoka
21 October 2011.