IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: HAA 39 OF 2015

BETWEEN :

KRISHNA MANI PILLAY
Appellant

AND :

STATE
Respondent

Counsel : Mr. Naidu for the Appellant
Mr. A. Singh for the Respondent

Date of Hearing : 08th February, 2016
Date of Ruling : 29th February, 2016

JUDGMENT

1.	Appellant was charged with Theft contrary to Section 291(1) of the Crimes Decree No. 44 of 2009 in the Magistrates Court of Fiji at Nadi.

2.	Appellant pleaded guilty to the charge and agreed the summary of facts read by the Prosecution. Conviction was recorded. Appellant was sentenced, on 11th of September, 2015, to two years' imprisonment with non-parole period of 16 months. 

3.	Being aggrieved by the sentence imposed, the Appellant filed this appeal in this Court on 7th of October, 2015.

Grounds of Appeal originally filed:

4.	The Appellant appealed the sentence on following grounds:

I.	The learned Magistrate misdirected himself as to the application of Section 4 (2) (j) of the Sentencing and Penalties Decree 2009 in failing to suspend the sentence of the Accused.

II.	That the learned Magistrate erred in law and in fact by failing to give sufficient weight to the Accused's character and the mitigating factors in imposing a custodial sentencing that the Accused should have been considered a first offender.

III.	That the learned Magistrate failed to take into account that the Accused had entered into an agreement for restitution of the property acceptable to the complainant.

IV.	That the learned Magistrate took into account matters irrelevant and prejudicial to the accused in arriving at the sentence.

V.	That the learned Magistrate erred in law and in fact in imposing a custodial sentence.

Additional Grounds of Appeal: 

5.	Leave having been obtained, Appellant filled following additional grounds of appeal 

a)	THAT learned Magistrate erred in law and in fact by making a finding that the accused stood in a position of trust and had breached the same thereby applying a wrong tariff in imposing an excessive sentence.

b)	THAT the learned Magistrate erred in law and in fact by accepting the monetary value of the item stolen as stated in the summary of facts when there was discrepancy with the value provided in the charge sheet.

c)	THAT the learned Magistrate erred in law and in fact in finding that the accused was in breach of trust when at the time of the theft the accused was not an employee of the Complainant and therefore was no relationship of trust or otherwise.

d)	THAT the learned Magistrate erred in law and in fact in failing to take account of restitution by the accused thereby imposing an excessively high sentence on the accused.

e)	THAT the learned Magistrate erred in law and in fact in imposition of a non-parole period when he had discretion in the matter as provided for by section 18 (2) of the Sentencing and Penalties Decree of 2009.

f)	THAT the learned Magistrate erred in law and in fact in failing to treat the accused as a first offender when his previous conviction was almost ten years old thereby allaying the wrong tariff.

Analysis

6.	It is apparent that the Appellant is challenging the learned Magistrate's sentencing ruling on the premise that the learned Magistrate misdirected himself in failing to suspend the sentence imposed on him. Other grounds are advanced apparently to strengthen the ground based on non-suspension of the custodial sentence. 

7.	Section 26 of the Sentencing and Penalties Decree, 2009 provides that:

26. — (1) On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or part of the sentence, if it is satisfied that it is appropriate to do so in the circumstances.

(2) A court may only make an order suspending a sentence of imprisonment if the period of imprisonment imposed, or the aggregate period of imprisonment where the offender is sentenced in the proceeding for more than one offence,—

(a) does not exceed 3 years in the case of the High Court; or 
(b) does not exceed 2 years in the case of the Magistrate's Court.

8.	The term of imprisonment imposed by the learned Magistrate on the Appellant is for a term of two years. Hence, he had discretion to suspend the sentence if he is satisfied that it is appropriate for him to do so in the circumstances of the case. The learned Magistrate in his discretion opted not to suspend the sentence. 

9.	The learned Magistrate's failure to suspend the sentence can be impugned in appeal only if he had failed to exercise his discretion judiciously. In exercising his discretion, the learned Magistrate is required to follow the guidelines set by the Sentencing and Penalties Decree 2009 and the Case Law pertaining to suspended sentences.

10.	The sentencing guidelines are provided for in Section 4 of the Sentencing and Penalties Decree 2009. The sentencing Magistrate is bond to take those guidelines into consideration when imposing a sentence.

11.	A sentence handed down by a court below should only be varied on appeal where the Court had erred in principle and the sentence itself is excessive in all the circumstances.

12.	In Kim Nam Bae –v- The State (AAU 15 of 1998; 26 February 1999) Fiji Court of Appeal observed:

"It is well established law that before this Court can disturb the sentence, the appellant must demonstrate that the Court below fell into error in exercising its sentencing discretion. If the trial judge acts upon wrong principles, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some relevant consideration, then the Appellate Court may impose a different sentence. This error may be apparent from the reasons for sentence or it may be inferred from the length of the sentence itself (House –v- The King [1936] HCA 40; (1936) 55 CLR 499)."

13.	The approach that should be taken in exercising appellate jurisdiction to question the sentencing discretion of courts below was discussed in Court of Appeal decision Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015) where it was stated:

In determining whether the sentencing discretion has miscarried this Court does not rely upon the same methodology used by the sentencing judge. The approach taken by this Court is to assess whether in all the circumstances of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies within the permissible range. It follows that even if there has been an error in the exercise of the sentencing discretion, this Court will still dismiss the appeal if in the exercise of its own discretion the Court considers that the sentence actually imposed falls within the permissible range. However it must be recalled that the test is not whether the Judges of this Court if they had been in the position of the sentencing judge would have imposed a different sentence. It must be established that the sentencing discretion has miscarried either by reviewing the reasoning for the sentence or by determining from the facts that it is unreasonable or unjust. (emphasis added).

Grounds I and II

14.	Ground I is based on learned Magistrate's failure to consider Section 4(2) (j) of the Sentencing and Penalties Decree when sentencing. In the second ground of appeal, the Appellant contends that the learned Magistrate failed to consider his good character. According to the submission filed by the Appellant's Counsel, both grounds are based on non-consideration of Appellant's good character. 

15. 	Appellant has one reported previous conviction of Larceny by Servant dated 27th October 2005. The learned Magistrate has taken that conviction into consideration when sentencing. However, he has not taken his previous conviction as an aggravating circumstance. 

16.	Section 4 (2) (i) of the Sentencing and Penalties Decree 2009 reads as follow:

'In sentencing offenders, a court must have regard to the offender's previous character'.

Section 5 reads:

In determining the character of an offender, a court must consider (among other matters)

(a)	The number, seriousness, date, relevance and nature of any findings of guilt or convictions recorded against the offender.

(b)	The general reputation of the offender; and 

(c)	Any significant contributions made by the offender to the community, or any part of it.

17.	The previous conviction of the Appellant is recorded within ten year period. Larceny by a Servant is relevant to present offending which is theft. The learned Magistrate correctly applied the law when he took the previous conviction into consideration to assess the Appellant's previous character in selecting the existing tariff for Theft. Therefore that ground fails.

Other Grounds 

Breach of Trust

 18.	It appears that the learned Magistrate considered a breach of trust situation to determine Appellant's previous character when he cited Justice Shameem's dicta in State v. Sakuisa Bola HAC 38 of 2005 where it was stated: 

"In breach of trust cases, comparably less weight is put on good character, because only people of good character are given positions of trust and responsibility. It is the breach of trust which is the harm done in these offences" 

19.	The Appellant argues that the learned Magistrate fell into error when he assumed a trust relationship between the complainant and the accused. 

20.	In the summary of facts which the Appellant agreed, it is stated that the Appellant was employed by the complainant's company as a driver and was based in a yard at Denarau. There is no dispute that his capacity as driver, was within an employer-employee relationship. The question is whether that relationship, standing alone, gives rise to a breach of trust situation automatically when the goods stolen are not entrusted to the accused.

21.	In any consideration of principles involved in a breach of trust case the observations in the following extracts from the judgment of the Lord Chief Justice in R v Barrick 81 Cr. App. R. (S) 78, at p.81 is pertinent to be noted:

"The type of case with which we are concerned is where a person in a position of trust, for example, an accountant, solicitor, bank employee or postman, has used that privileged and a trusted position to defraud his partners or clients or employers or the general public of sizeable sums of money. 

22.	Conviction was recorded on the basis of accused tendering an unequivocal guilty plea to the charge and agreeing the summary of facts filed and read over to him by the Prosecution. There is nothing in the summary of facts to suggest, and the learned Magistrate to find, that the stolen goods were entrusted to the Appellant when the theft took place or he used his privileged and a trusted position to defraud his employer. Appellant had only been complicit in the crime committed by the security officer (1st accused) to whose custody the stolen goods were entrusted. 

23. 	Furthermore, the Employer Company had written a letter informing the prosecution and the Magistrates Court that the Appellant would continue to work in the company and part of his salary would go towards the payment of the value of the items stolen. That letter could have been considered by the learned Magistrate to find that the trust reposed in him by his employer was not completely lost. 

Restitution

24.	In his third ground of appeal the Applicant states that the learned Magistrate failed to take into account the agreement for restitution entered between the complainant and the Applicant and failed to give due consideration to Section 4 (2)(h) of the sentencing and Penalties Decree. 

25.	In paragraph 8 of the sentencing order, the learned Magistrate has mentioned all the mitigating circumstances submitted by the Counsel for the Appellant. In paragraph 20, he had given a discount of 16 months for mitigating circumstances other than early guilty plea. In paragraph 21, he had given further discount of 8 months "considering other mitigating and personal circumstances". 

26.	In the mitigation submission placed before the learned Magistrate, nothing is stated about the so called agreement of restitution. The letter produced before the learned Magistrate only states that 'the balance of claim done by Ali Amzad Transport will now be deducted from his pay'. The letter issued by a director of the company, AATS Investments, had confirmed that only ¼ of the money claimed by Ali Amzad Transport (complainant) had been paid. Those are the only material placed before the learned Magistrate by the time he imposed the sentence. 

27.	Even in a case where the accused is the first offender who pleaded guilty, a sentence could be suspended only if he had made full restitution before the sentencing hearing, thereby manifesting his genuine remorse. However, learned magistrate could have considered the partial restitution and appellant's willingness to make full restitution in deciding whether to suspend the sentence at least partially. 

28.	The criteria that a sentencing Court should adopt in suspending a sentence was discussed in State v. Raymond Roberts HAA 0053 of 2003 S by Justice Shameem in the following terms:

"The principles that emerge from these cases are that a custodial sentence is inevitable where the accused pleads not guilty and makes no attempt at genuine restitution. Where there is a plea of guilty, a custodial sentence may still be inevitable where there is a bad breach of trust, the money stolen is high in value and the accused shows no remorse or attempt at reparation. However, where the accused is a first offender, pleads guilty and has made full reparation in advance of the sentencing hearing (thus showing genuine remorse rather than a calculated attempt to escape a custodial sentence) a suspended sentence may not be wrong in principle. Much depends on the personal circumstances of the offender, and the attitude of the victim"

29.	Justice Shameem, following the principles enunciated by Justice Gates (as his Lordship then was) in State v Mahendra Prasad HAC 009.02 S, stated that:

"Where there is an earnest and sincere wish to effect reparation to the victim and where that wish is prompt and an expression of remorse, a suspended sentence is not wrong in principle".

Value of Property Stolen

30.	According to the summary of facts, items amounting to $ 21,800 had been stolen of which only $ 4000 worth of items had been recovered. There is a discrepancy in the charge sheet as to the value of goods stolen. In the charge sheet, value of the items stolen is only $ 15,000. 

31.	Having filed an affidavit, complainant has confirmed that the appellant was charged for theft of items valued at $ 15,000/-. However, in paragraph 18 of the sentencing ruling, the learned Magistrate took into consideration the value of the goods stolen as $21,800 in picking the starting point. 

32.	Appellant had tendered an unequivocal plea of guilty. Summary of facts had been admitted by the Appellant when he was represented by a Counsel at the Magistracy. In this context, Counsel for the Respondent asserts that the Appellant is now estopped from disputing the value of items stolen. 

33.	It seems that the Appellant agreed the summary of facts by an oversight of the discrepancy in the value of goods stolen. There can be no doubt that the value of the good stolen given in the summary of facts influenced the learned Magistrate's decision not to suspend the sentence. It also influenced his decision in selecting the tariff for the offence and the starting point. Even though the Appellant agreed the summary of facts which is not correct, it is fair and just to remedy the defect and give effect to true facts that led to his full custodial sentence. 

Fixing of Non Parole Period

34. 	In his final written submission Appellant has taken up a new ground and contended that the non-parole period imposed by the Learned Magistrate is obnoxious to sentencing principles. 

35.	The Sentencing and Penalties Decree 2009 provides for non-parole period in Section 18 as follows:

18.- (1) Subject to sub-section (2), when a court sentences an offender to be imprisoned for life or for a term of 2 years or more the court must fix a period during which the offender is not eligible to be released on parole.

(2) If a court considers that the nature of the offence, or the past history of the offender, make the fixing of a non-parole period inappropriate, the court may decline to fix a non-parole period under sub-section (1).

(4) Any non-parole period fixed under this section must be at least 6 months less than the term of the sentence.

36. 	If a court sentences an offender to be imprisoned for a term of less than 2 years but not less than one year, the court has discretion fix a period during which the offender is not eligible to be released on parole.

37.	The sentence imposed by the learned Magistrate is less than two years but not less than one year. So, under Section 18(1) it is not mandatory for court to fix a non-parole period. The learned Magistrate fixed a non-parole period at 16 months when he imposed a sentence of twenty four months' imprisonment; that is six months less than the term of the sentence. 

38.	Under Section 18(3) the learned Magistrate had discretion to fix a non-parole period without violating the mandatory provision in Section 18(4). Having considered the nature of the offence, past history of the Appellant and also the term of imprisonment, the learned Magistrate has exercised his discretion judiciously and lawfully when he fixed the non-parole period at sixteen months for a sentence of twenty four months' imprisonment. 

Order

39. 	For reasons given in my judgment, sentence is slightly varied. The operation of half of the term of imprisonment is suspended for a period of two (02) years from the date of sentence. Accordingly, Appellant is to serve only twelve months in prison from the date he was sentenced. Balance twelve months' term is suspended for a period of two years. 

[The purpose and the effect of the suspended term is explained to the accused along with the consequences of the breach under section 26 (3) of Sentencing and Penalties Decree 2009].

40.	If an offence punishable with a term of imprisonment is committed within the operational period of the suspended term, the suspended term shall begin to run in addition to the sentence that the Appellant may get for the subsequent offence.

41.	The Appellant is also informed that the commission of an offence punishable with imprisonment during the operation of the suspended sentence is an offence itself against Section 28 of the Sentencing and Penalties Decree for which he could be arraigned and punished by the Court. 

Aruna Aluthge
Judge

At Lautoka
29th February, 2016

Solicitors: Pillai, Naidu & Associates for Applicant
Office of the Director of Public Prosecution for Respondent