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Reddy v State [2012] FJHC 1471; HAA026.2012 (6 December 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO: HAA 026 OF 2012

BETWEEN:

NITESH ROY REDDY
[Appellant]

AND:

STATE
[Respondent]

Counsel : Appellant – In Person
Mr. T. Qalinauci for the Respondent

Date of Judgment : 6 December 2012

JUDGMENT

[1] The Applicant above named was originally charged before the Magistrate of Nadi on two counts of shop breaking and larceny punishable under Section 300 (a), of the Penal Code. The Appellant pleaded guilty to the charge and admitted to the summary of facts. The Learned Magistrate convicted the Appellant and sentenced him for three years and three months imprisonment to be implemented consecutive to the current sentence.

[2] Being aggrieved with the sentenced the Appellant preferred an appeal and submits the following grounds of appeal.

(a) The Learned Magistrate erred in law and in fact for not allowing a full 1/3 discount sentence for an early guilty plea;

(b) The Learned Magistrate erred in law and in fact for not allowing a reduction in sentence for a 100% recovery of stolen items;

(c) The Learned Magistrate erred in law and in fact for not allowing fresh mitigating and extenuating factors before sentencing me for a case that continued on from 2009 to 2012;

(d) The Learned Magistrate erred in law and in fact for using inaccurate aggravating factors for allowing an increase in sentence;

(e) The Learned Magistrate erred in law in taking into account "Total Disregards to law and property rights of the complainant" as an aggravating factor.

[3] The State Counsel objects the grounds of appeal and filed written submissions.

[4] The Appellant submitted to Court that all the items stolen were recovered but the record reveals the amount stolen was $21,988.05. The value of the products recovered was $6,000.00. The Appellant confirmed this in the open court also.

[5] I perused the record and I am convinced that the conviction of the Appellant is unequivocal and acceptable by law. Hence I do not find any reason to interfere with the conviction.

[6] The question before us is the grounds alleged by the Appellant. The 1st ground of appeal is the Magistrate did not give the full discount of 1/3. The Appellant did not plead guilty at the early stage, the case was called on 27th November 2009 and postponed for more than 22 occasions. Hearing was vacated and the Appellant was absent on more than 4 occasions.

Further there is no legal provisions to give such reductions, it was the practice adopted by the Judges and Magistrates to encourage the early plea. In this case the plea was entered after two years and eight months. The Magistrate clearly stated in sentencing remarks that he is not giving the full discount because the Appellant is not entitled due to the delay in entering the plea after two years and eight months.

Considering the reasons I find the Magistrate is correct in law and further his reasons are rational and reasonable hence I find the grounds of appeal has no merits.

[7] The second ground of appeal that 100% recovery of stolen items was not considered. I have discussed this issue earlier. The Appellant is incorrect and purposely misleading this Court. There is no truth in this ground, further the Magistrate had considered the value of the goods and acted accordingly hence I find there is no merit in the ground of appeal.

[8] The 3rd ground of appeal was the Magistrate did not consider fresh mitigating circumstance on passing the sentencing remarks. I find the Magistrate had considered all factors more sympathetically towards the Appellant and decided the quantum of the sentence. I do not find any error hence the ground of appeal has no merits.

[9] Fourth ground of appeal is that the Magistrate had used inaccurate aggravating factors. I peruse the submissions and the sentence very carefully there I find the Trial Magistrate had considered each and every factor separately and came to his conclusion. I do not find any illegality or in appropriateness in the consideration hence this ground of appeal has no merits on its own.

[10] Considering all I find all grounds of appeal failed on its own merits therefore I dismiss the appeal.

[11] The sentence given was three years and three months according to Section 18(1) of the Sentencing & Penalties Decree the Magistrate should fix a non parole period if not the reason should be stated since it is not mentioned, I impose two years four months as non parole period.

[12] Your sentence will be three years and three months with two years and four months non parole period as ordered by the Magistrate your sentence will be implemented consecutive to your present sentence.

[13] So ordered.

[14] Subject to the variation of non parole period the appeal dismissed

S. Thurairaja
Judge
At Lautoka
6 December 2012

Solicitors:
Applicant appeared in Person
The Office of the Director of Public Prosecution for the Respondent