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Nausa v State [2012] FJHC 1387; HAA23.2012 (26 October 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL CASE NO HAA 23 OF 2012

BETWEEN:

ISOA NAUSA
Appellant

AND:

STATE
Respondent

Counsels: Appellant – In Person
Respondent – Mr. S.Babitu

Date of Judgment: 26th October 2012

JUDGMENT

1. The Appellant above named was originally charged with one count of Burglary and one count of Theft. He pleaded guilty and admitted to the Summary of Facts. He was sentenced to 20 months for the offence of Burglary and 16 months for the office of Theft. The learned Magistrate had ordered both sentences to run concurrently.
   
2. Being aggrieved with the sentence the Appellant preferred this appeal and submitted following grounds:
   
   • (a) The 20 month imposed is menifestly excessive;
   • (b) That is wrong to impose on a man with a records of previous conviction on sentence which is disappropriate (sic) to the offences;
   • (c) The Magistrate had not applied right principle in sentencing.
     
3. State Counsel filed his response he not only objecting to the grounds but also inviting the Court to revisit the sentence.
   
4. According to the agreed Summary of Facts, the Accused had seen the Complainant leaving his house, after verifying the house is vacant he climbed over the fence and entered the upstairs of the house. Then he opened the fridge and took beer bottles and frozen food. He gained access to the bedroom and stolen a bag containing valuable items such as gold chain, gold bracelet, Fijian, New Zealand and Australian currencies. The total amount is well over Five Thousand Three Hundred & Fifty Dollars ($5,350.00). It was admitted by the Accused that he had lavishly spent these money buying liquor. Out of the amount Two Thousand & Seventy Dollars ($2,070.00) was not recovered.
   
5. The Appellant had submitted mitigating circumstances including that he was discharged from the Prison 2 months before, he needed money to develop land next to his village. He was facing financial difficulties that was the reason for him to commit this offence.
   
6. At the hearing of appeal the State submitted that considering the previous convictions of the Appellant he should be declared as habitual offender and the sentence should be enhanced. The Appellant was informed of the request of the State. He informed Court that he know the consequences but he wishes to proceed with the appeal.
   
7. Considering the sentence perse I do not find any illegality. The Magistrate had adequately considered the facts of the case and commenced the sentence within the tariff zone. The only thing noted is, there is no mention of non-parole period in the sentence.
   
8. The Appellant’s 1st ground of appeal was 20 months imposed is manifestly excessive, harsh and wrong in principle. Section 312(1) of the Crimes Decree provides a maximum sentence of 13 years imprisonment. Hence the sentence imposed 20 months is not illegal or wrong in principle. Regarding excessiveness I wish to discuss later.
   
9. The 2nd ground of appeal is misspelled and wrongly submitted. I presume the Appellant trying to say that considering the previous conviction is wrong. Perusing the sentencing reasons carefully the Magistrate had considered this as a factor for not suspending the sentence. I wish to discuss the issue in the light of the State request of declaring as a habitual offender.
   
10. The 3rd and last ground of appeal is the Magistrate did not apply the right principles for early guilty plea. The Magistrate had given 1/3 reduction for early plea even though there is no hard and fast rule to give certain percentage of discount. It is practiced by many courts to give reductions up to 1/3. In this case also the Appellant was given 1/3 discount. Hence I find this ground of appeal also fails on its own merits.
    
11. Even though all grounds of appeal fails, in the interest of justice I wish to consider the request of the State.
    
12. The Appellant has 40 previous convictions on the 23rd October 2012 I inquired from him in the open court, he confirmed the same and submitted out of which he has 3 previous convictions on Burglary. Majority of his convictions are for Larceny/Theft. Prison Authorities informed the Court that the Accused Appellant was released on 12th May 2012.
    
13. The present offence was committed on the 26th May 2012. In other words the Appellant involved in Burglary within 15 days from his release.
    
14. Section 4 of the Sentencing & Penalties Decree states as follows:
    

4. — (1) The only purposes for which sentencing may be imposed by a court are

(a) to punish offenders to an extent and in a manner which is just in all the circumstances;

(b) to protect the community from offenders;

(c) to deter offenders or other persons from committing offences of the same or similar nature;

(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) to signify that the court and the community denounce the commission of such offences; or

(f) any combination of these purposes.

(2) In sentencing offenders a court must have regard to —

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender’s culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender’s previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option.

[Emphasis added]

15. Section 10 of the Sentencing & Penalties Decree states as follows:
    

“10. This Part applies to a court when sentencing a person determined under section 11 to be a habitual offender for —

(a) a sexual offence;

(b) offences involving violence;

(c) offences involving robbery or housebreaking;

(d) a serious drug offence; or

(e) an arson offence."

16 Section 256(2) of the Criminal Procedure Decree 2005 states as follows:

"256(2) The High Court may —

(a) confirm, reverse or vary the decision of the Magistrates

Court; or

(b) remit the matter with the opinion of the High Court to the

Magistrates Court; or

(c) order a new trial; or

(d) order trial by a court of competent jurisdiction; or

(e) make such other order in the matter as to it may seem just,

and may by such order exercise any power which the Magistrates Court might have exercised; or

(f) the High Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

17. The Accused has following Previous Convictions:
    

18. The Learned Magistrate after considering the nature of the previous convictions could have referred the matter to the High Court for sentencing. Since the matter is before the Court I act under Section 256 of the Criminal Procedure Decree and vacate the sentence imposed on the Appellant and replace it with the following sentence.
    
19. Out of 40 Previous Convictions (excluding present two convictions) 29 are within the operational period. Considering the previous conduct of the Appellant I find that he falls within the ambit of Section 10 of the Sentencing & Penalties Decree. Hence I declare the Accused Appellant is a threat to the community.
    
20. Section 312 (1) of the Crimes Decree prescribes 13 years imprisonment as maximum sentence.
    
21. Section 291 (1) of the Crimes Decree provides maximum penalty as 10 years imprisonment.
    
22. Isoa Nausa, I have already declared you as a habitual offender hence I commence your sentence at 8 years imprisonment for the Burglary and 4 years for the offence of Theft.
    
23. Both offences were committed in the same course of transaction therefore I order to implement both sentence concurrently.
    
24. Aggravating factors
    
    • (a) The offences are well planned and executed;
    • (b) You have no regards to the properties of the others;
      

I increase your sentence by 1 year. Now your sentence is 9 years imprisonment.

25. Mitigating Circumstances
    
    • (a) Your early plea.
      

Other grounds submitted by you are unconsiderable. I reduce your sentence by 3 years. Now your sentence is 6 years imprisonment.

26. I act under section 18 of the Sentencing and Penalties Decree and impose 5 years as non parole period.
    
27. You were sentenced and imprisoned by the Magistrate on the 6th June 2012 hence I order to implement your sentence from that date.
    
28. You are sentenced to 6 years imprisonment and you will not be eligible for parole until you complete serving 5 years in the prison.
    

S. Thurairaja
Judge

At Lautoka
26th October 2012

Solicitors: Appellant appeared in person
The Office of the Director of Public Prosecution for State