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Chand v State [2007] FJHC 65; HAA 30.2007 (11 October 2007)

IN THE HIGH COURT OF FIJI
AT LABASA
NORTHERN DIVISION
CRIMINAL JURISDICTION

Criminal Case No: HAA
25, 26, 27, 28, 29& 30 of 2007

BETWEEN:

DEO CHAND F/N JADU RAM
APPLICANT

AND:

THE STATE
RESPONDENT

Ms N. Tikoisuva for the State
Appellant n Person

Date of Hearing: 11 October 2007.

RULING

1. On 11 October 2007, I dismissed the appeal filed by the appellant Deo Chand [f/n Jadu Ram] against a consolidated sentence of 3years 4 months passed by the Labasa Magistrate Court in Criminal Case Nos: 68-71/07; 82/07, 88/07 and 102/07.
   
2. The appellant filed a petition of appeal dated 5 September 2007 upon the following grounds:
   
   1. the learned magistrate failed to maintain judicial neutrality in weighing all the evidence against me and gave full advantage to the prosecution;
   2. Very little consideration were given to my guilty plea to all the charges;
   3. The learned magistrate gave excessive weight from the appellant’s previous convictions;
   4. Sentence of 3 years and 4 months was harsh and excessive
      

Sentence in the Magistrates’ Court

3. On 13 February 2007, the appellant pleaded guilty to the following 2007 cases in the Labasa Magistrate Court, Criminal Case No. 68/07[HAA 025/07], 69/07 [HAA 026/07], 71/07 [HAA 028/07] and 70/07 [HAA 027/07] relates to 4 counts of House Breaking Entering and Larceny, contrary to section 300 of the Penal Code, Cap 17. The penalty for these offences is 14 years maximum. The appellant was sentenced to 2 years imprisonment on each count to be served concurrently.
   
4. In HAA 29/07 [Criminal Case No. 82/07] the appellant was charged with one count of larceny from dwelling house contrary to section 270(a) of the Penal Code, Cap 17. The penalty for this offence is 14 years. The appellant was sentenced to 1 year imprisonment consecutive to the sentence in HAA 26/07 [Criminal case No. 69/70] and HAA 28/07[ Criminal Case No.71/07] of 2 years imprisonment. This makes the total sentence of 3 years imprisonment.
   
5. In HAA 29/07 [Criminal Case No 82/07] the appellant was charged with one count of Larceny contrary to section 259 of the Penal Code, Cap 17. He pleaded guilty and was sentenced to 2 months imprisonment consecutive to the earlier sentences referred to in paragraphs 3 and 4 above.
   

Grounds of Appeal

6. On ground i) referred to in paragraph 2 above, there were no prosecution evidence as such because the appellant pleaded guilty after he admitted to a set of facts. This ground of appeal is misplaced and is dismissed.
   
7. Ground ii) referred to in paragraph 2 above, has no merit. In a well constructed and balance ruling the learned magistrate clearly gave proper weight and discount for the guilty plea when passing sentences. This ground of appeal fails.
   
8. On ground iii) alleging that the learned magistrate gave excessive weight to the previous convictions rather than the facts of the cases before him. It must also fail. I reviewing the sentences, I had noted that if the previous convictions of the appellant were given its proper weighting the overall sentence should be in the region of 4 to 5 years. This ground has no merit and is dismissed.
   
9. With regard to the claim by the appellant that the total sentence of 3 years 4 months imprisonment was harsh and excessive, the court invited the appellant at the hearing of his appeal, to provide the basis on which he makes his claim. He was unable to provide any explanation at all. He simply restated his belief that the sentence was harsh and excessive.
   
10. The appellant also complained that his mitigation was not considered by the learned magistrate when passing sentence. This complain has not merit on the basis of the repeated reference in the sentence ruling, on the mitigating factors the court considered in reaching each of the sentences it imposed.
    

Review of the sentence

11. In the light of the appellant’s inability to substantiate the ground of his appeal, the court decided to review the sentence passed in the learned magistrate to satisfy itself that it is indeed correct in principle and not harsh or excessive.
    
12. First on the approach adopted for sentencing by the learned magistrate. The learned magistrate started his sentence by identifying the fact that the sentence he was about to pass relates to 7 files. There was only one set of mitigation provided by the appellant for all of the 7 files. There was no dispute as to the facts in each case files. The learned magistrate first separated the files according to the same charges and he proceeded to pass sentence with each accordingly. There were 4 separate sentences passed.
    
13. This court is of the view that the approach adopted by the learned magistrate is proper and nothing can be criticised about it.
    

Sentence for 4 counts of House Breaking Entering and Larceny

14. The first four files [HAA 25,26,27 and 28/2007] relate to four separate counts of House Breaking Entering and Larceny, contrary to section 300 of the Penal Code, Cap 17. The sentence passed by the learned magistrate was 2 years imprisonment on each count to be served concurrently. This was the sentence despite the fact that they relate to separate and distinct criminal acts on different dates.
    
15. In his sentencing remarks the learned magistrate identified the correct sentence tariff band for these offences as 2- 3 years: Felix Vusonitokalau v The State Crim App No. HAA 056/05. He picked the staring point of 3 years and gave 1 year for mitigation and guilty plea but did not add anything for aggravated factors. In fairness to the appellant, the guilty plea should be accounted separately after the mitigation and aggravating factors are accounted. On the facts here, 1 year should have been added to the sentence of 2 years after the mitigation was considered, making the cumulative total of 3 years imprisonment for the appellant’s previous convictions. For the guilty plea, one third should be taken off resulting in 2 years imprisonment. This in law is the correct sentence and it is not harsh or excessive: Charlton Lanyon v The State Crim App No. HAA 42/2004.
    
16. The learned magistrate ordered that the sentence be served concurrently. If he had ordered one of the sentences, to be consecutive to the others, it would have been still proper in law: Krishna & Others v Reginam 8 FLR 236. The learned magistrate did not and I will interfere with that ruling.
    

Sentence for 1 count of Larceny from Dwelling House

17. The learned magistrate than passed sentence on HAA 29/07 [Criminal Case No. 82/07], where the appellant had pleaded guilty to one count of larceny from dwelling house, contrary to section 270(a) of the Penal Code, Cap 17. He imposed a 1 year sentence on the appellant to be served consecutive to the previous sentence of 2 years.
    
18. As I observed to the appellant during the appeal hearing, a 1 year sentence in the circumstances of this case and given the appellant’s semi-professional life style as a thief, is lenient and is certainly not harsh and excessive. This offence carried a maximum sentence of 14 years. The only reason this court will not interfere with it, is that it is still within the broad band of sentences that may be passed for offences of this kind.
    

Sentence for 1 count of Larceny

19. In HAA 30/07 [Criminal Case No 88/07] the appellant was sentenced to 2 months imprisonment for larceny contrary to section 259 and 260 of the Penal Code, Cap 17. This sentence was to be served consecutive to earlier sentences in HAA 25 & 26 of 2007 [Criminal Case No. 69/07]. Again this was not harsh and excessive sentence, when you consider the tariff for this offence is in the range 2 to 3 year imprisonment. The maximum sentence for this is 10 years for the appellant given his previous conviction for felony.
    
20. The total sentence appealed against is 3 years 2 months in HAA 25,26,27,28,29 and 30 of 2007. In Labasa Magistrates’ Court Criminal Case No. 102/07 the appellant was sentenced to 2 months imprisonment each for resisting arrest and escaping from lawful custody but concurrent. The total sentence of 2 months to served consecutive to earlier sentences totalling 3 years 2 months, making the final sentence of 3 years 4 months imprisonment.
    

Totality of the sentence

21. Having found that the sentences in the magistrates’ court were not harsh and excessive or wrong in principle with regard to each set of files, I considered the totality of the sentence and whether it may be harsh and excessive. The factors that have weighed heavily in my consideration are:
    
    • The appellant has 37 previous convictions of similar offences;
      
    • No sign of remorse demonstrated by the appellant;
      
    • Need to ensure that offenders like the appellant who are persistent in their anti-social behaviour are warehoused to protect the community who have been the subject of his unacceptable behaviour;
    • The appellant has been given favourable consideration before by the court but he exhibits no sign that he would change for the better;
      
    • The sentence passed was within the tariff for the kind of offence in question;
      
    • The need for deterrence to any one who may be like minded
      
22. In considering the above factors, I am assisted by the decision of His Lordship Mr Justice Winter in Charlton Lanyon v The State [supra] where he stated:
    

" repetitive, recidivist offending must invariably lead to longer sentences of imprisonment unless the offender can demonstrate special circumstances that motivate the court to sentence otherwise. This principle meets three of society’s needs. Firstly it might act as a deterrent to the offender and others who fall into a pattern of semi-professional crime to support themselves. Secondly, society is entitled to sideline or warehouse repeat offenders out of the community for longer periods of time so that at least during their term of incarceration they cannot wreck havoc on the lives of law abiding citizens. Third, offenders deserve punishment that fits the circumstances of the crime."

23. The appellant in this case has 37 previous convictions of similar offending to the offences he was charged with for the cases in this appeal. He clearly has not learnt his lessons. For the offence of House Breaking Entering and Larceny alone the appellant has 20 previous convictions, another 11 previous convictions for burglary and simple larceny offences and 2 of robbery with violence. This is the lifestyle of a professional thief. I have concluded that the sentences passed by the learned magistrate have not violated the totality principle in sentencing.
    
24. In the light of the above, the appeal against sentence has no merit and is dismissed.
    
25. The sentence of 3 years 4 months passed in the Magistrates’ Court is confirmed.
    

Isikeli Mataitoga
JUDGE

At Labasa, 11 October 2007.