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Court of Appeal of Fiji |
IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT
CRIMINAL APPEAL NO. AAU 58 OF 2011
(High Court HAC 172 of 2010S)
BETWEEN:
NIKO LESU
SUNIA VOSATAKI
Appellants
AND:
THE STATE
Respondent
Coram : Calanchini P
Waidyaratne JA
Madigan JA
Counsel : Ms. N Nawasaitoga for the Appellants
Ms. P Madanavosa for the State
Date of Hearing : 18 November 2014
Date of Judgment : 5 December 2014
JUDGMENT
Calanchini P
[1] I have read the draft judgment of Waidyaratne JA and agree that the appeal against sentence should be allowed. I also agree with
his proposed orders.
Waidyaratne JA
[2] This is an appeal against the sentence pursuant to section 21(1)(c) of the Court of Appeal Act Cap.12.
[3] The Appellants were charged for committing arson contrary to section 362(a) of the Crimes Decree 2009.
[4] According to the particulars of the offence, the Appellants on the 29th June 2010 at Sawaieke, Gau in the Southern Division had set fire to a house of Ratu Marika Lewanavanua.
[5] The details of the case in brief are:
The complainant is the chief of the village. The appellants who were from the same village had been disappointed with the decision of the complainant to permit a new church denomination into their village without consulting the members of the village and allowed the church to use a house of the complainant for the church services. As a show of disapproval of the decision of the chief, the said house had been burnt down.
[6] On the 20th October 2010 the charge had been read to the Appellants and both had pleaded guilty to the charge of arson. On the same day the summary of facts had been read and the Appellants had admitted the same.
[7] The summary of facts reflect that the damaged house had an estimated value of $7000.
[8] On 7th April 2011, both Appellants, having pleaded guilty to the charge of arson and the High Court Judge being satisfied with their plea were convicted accordingly.
[9] Thereafter, parties had been allowed to file written submissions on or before 4th November, 2010 and submission on sentencing fixed for 9th November 2010.
[10] The court record also show that on the 30th November 2010 the Court indicated its desire to hear the complainant and on 16th December 2010 the complainant was present in court. On this day the State moved for time to obtain a valuation of the damaged house.
[11] On the 6th May 2011, the Appellants had been sentenced to 4 years imprisonment. Aggrieved by the aforesaid sentence, the Appellants applied for leave to appeal against their sentences.
[12] The grounds of appeal are summarised as follows:
[13] Having considered the submissions on behalf of the Appellants the justice of appeal granted them leave to appeal against their sentences.
[14] Considering the above grounds of appeal, at the outset I observe that the charge and the information forwarded by the Director of Public Prosecutions on 20th October 2010 are as follows:
"Niko Lesu and Sunia Vosataki are charged with the following offence:
Arson: Contrary to section 362(a) of the Crimes Decree No. 44 of 2009.
The particulars of offence: Niko Lesu and Sunia Vosataki on 29th June 2010 at Sawaieke Gau in the Southern Division wilfully and unlawfully set fire to the house of Ratu Marika Lewanavanua."
[15] The charge or the information forwarded by the Director of Public Prosecutions does not indicate any value of the property damaged or destroyed by an act of the appellants.
[16] However, as stated before the summary of facts submitted by the State against the two appellants refers to a value of the damaged house estimated at $7,000.
[17] Further, according to the Court record on 16 December 2010 the State had moved for time to obtain the valuation of the damaged house.
[18] In the above background, it appears that there had been an attempt by the prosecution to obtain evidence with regard to the value of the damaged house but the court record does not show that the State had pursued it or any results regarding the same thereafter.
[19] In this background, it appears that the prosecution had estimated the valuation of the damaged house at $7000 but had failed to substantiate the same with evidence.
[20] Further, the learned High Court Judge in his sentencing judgment dated 6 May 2011 had considered the following aggravating facts and stated thus:
"a) You have burnt the house of the chief of the village.
b) Severe breach of respect.
c) The value of the house was about $7000 [which was admitted by both of you admitting the summary of facts and disputed subsequently.]
d) You claim you are remorseful, both of you are given time from October 2010 to April 2011 to raise money to compensate the victim but you have not shown any interest to collect a red cent. It shows you are not remorseful of your act.
e) You had no regard to the religious rights of the victim."
[21] In the above circumstances, it is clear that the prosecution has estimated the value of the damaged house at $7,000 without any evidence or any other material whatsoever.
[22] The aforesaid estimated value of the damaged house had been disputed by the Appellants, though they admitted the same in the summary of facts but before their sentences were pronounced.
[23] The learned High Court Judge in his sentencing judgment dated 6 May 2011 had considered and accepted the estimates of the value of the damaged house at $7,000 and also stated that the said value is disputed by the Appellants though they have admitted the same in the summary of facts.
[24] Therefore, I am inclined to agree with the position of the Appellants that there was a dispute pertaining to the value of the damaged house.
[25] In such circumstances, section 244 of the Criminal Procedure Decree 2009 (previously section 306 of the Criminal Procedure Code) provides:
"Before passing sentence the court may receive such evidence as it thinks fit, in order to inform itself as to the appropriate sentence to pass in accordance with the sentencing guidelines and sentencing options provided for in the Sentencing and Penalties Decree 2009."
[26] The above provision conforms to the Common Law on the hearing of disputed facts that could decide the sentence.
[27] In the case of R v. Newton 77 Cr. App. R.13, it was stated:
"Where there is a plea of guilty but a conflict between the prosecution and defence as to the facts, the trial judge should approach the task of sentencing in one of three ways; a plea of not guilty can be entered to enable the jury to determine the issue; or the judge himself may hear evidence and come to his own conclusions, or the judge may hear no evidence and listen to submissions of counsel, but if that course is taken and there is a substantial conflict between the two sides, the version of the defendant must so far as possible be accepted."
[28] The courts in Fiji have accepted the Newtown hearing as part of the criminal procedure on disputed fact affecting sentence.
See, Kumar v. The State [2001] FJCA 15; AAU 0024.2000S (24 May 2001); Heffernan v. The State [2003] FJHC 163; HAA0051J.2003S (12 December 2003); Naidu v. The State (2002) FJHC 137; HAA 0012J.2002B (23 July 2002)
[29] In the instant case as stated earlier it appears that the Appellants though at the commencement had pleaded guilty to the charge and accepted the summary of facts, later had disputed the value of the damaged house which was given an estimate by the prosecution without evidence.
[30] In that background, it is evident from the court record that the prosecution had not established the value of the house as estimated at $7000 and referred to in the summary of facts submitted by the prosecution.
[31] Further, it is also clear that the learned High Court Judge had accepted the said value and considered the same as an aggravating factor.
[32] Therefore, it is clear that the Learned High Court Judge had not adhered to and considered the provisions in the Criminal Procedure Decree in order to resolve the disputed issue raised by the Appellants prior to the determination of the sentence against the Appellants.
[33] Therefore, I am of the view that the learned High Court Judge had acted contrary to the provisions of the law and thereby misdirected himself in determining the aggravating factor of the estimated value of the damaged house.
[34] Furthermore, as a result of the above consideration, the Learned High Court Judge had considered the disputed fact to diminish the weight to be attached to remorse expressed by the appellants in their plea of guilt. Thereby, the Learned High Court Judge had misdirected himself in determining the sentence and had incorrectly computed the enhanced sentence.
Ground 3 - Harsh and Excessive Sentence Exceeded the Tariff for Arson
[35] The Appellants next complaint was that the total sentence of 4 years is excessive. Further it was submitted on behalf of the appellants that it was a sentence made in error of law and that the error was the decision of the Learned High Court Judge to take 5 years as the starting point in making the sentence determination.
[36] The Appellants further submitted that the Learned Trial Judge had considered a new tariff for arson from 9 months to 6 years whereas the established tariff for arson by the High Court is 2 to 4 years imprisonment as decided in Lagi v. The State [2004] FJHC 69; HAA 0004.2004S (12 March 2004).
[37] Therefore, the Appellants argued that the 5 years starting point determining the sentence for arson was wrong in law.
[38] It is now established that the tariff for arson as decided in the case of Lagi v. The State (supra) and thereafter in several other cases is presently established to be 2 to 4 years imprisonment.
[39] In the instant case it is apparent from the sentencing judgment dated 6 May 2011 that the Learned High Court Judge in sentencing the Appellants had considered the tariff for arson from 9 months to 6 years. Using this tariff he had fixed his starting point at 5 years. Then he had increased the sentence by 3 years based on mistaken and wrongfully decided factors.
[40] Therefore, the total sentence of 4 years imprisonment with a term of 3 years non parole is wrong in law.
[41] Section 23(3) of the Court of Appeal Act provides:
"On an appeal against sentence, the Court of Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted by law by the verdict (whether more or less severe) in substitution therefore as they think ought to have been passed, or may dismiss the appeal or make such other order as they think just."
[42] And having considered the following cases Kim Nam Bae v. The State [1999] FJCA 21, AAU 0015 of 1998; and Simeli Bili Naisua v. The State Cr. App. No. CAV 0010 of 2013, in which it upheld that the "Appellate Court will interfere with a sentence if it is demonstrated that the trial judge made one of the following errors; a) acted upon a wrong principle; b) accorded extraneous or irrelevant matters to guide or affect time; c) mistook the facts; d) failed to take into account some relevant considerations."
[43] Arson is an extremely serious offence and the maximum penalty is life imprisonment. Despite the serious penalty, as mentioned earlier, the Courts in Fiji for considered reasons have placed the tariff for arson between 2 years and 4 years imprisonment.
[44] In the instant case it is now necessary to consider the proper aggravating factors in order to determine the starting point for the sentence. In this instance I am inclined to take cognizance of the following aggravating features to which both Appellants voluntarily admitted subsequent to their plea of guilt and their convictions.
[45] The following mitigating factors are also taken into consideration:
[46] Considering the above aggravating and mitigating factors, the time that had passed from the date of offence todate, the fact that there is no likelihood of continuing threat to the victim is apparent. Being mindful to punish offenders to an extent and in a manner which is just in the circumstances, the sentence imposed by the learned trial judge in the High Court is quashed and the Appellants are sentenced to 2 years imprisonment with effect from 6 May 2011.
Madigan JA
[48] I too have read the draft judgment of Waidyaratne JA and for the reasons given therein I agree that the appeal should be allowed
and the proposed orders be made.
Orders of Court
Hon. Mr Justice Calanchini
PRESIDENT, COURT OF APPEAL
Hon. Mr Justice Waidyaratne
JUSTICE OF APPEAL
Hon. Mr Justice Madigan
JUSTICE OF APPEAL
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