IN THE HIGH COURT OF FIJI ISLANDS
APPELLATE JURISDICTION
AT LABASA

CRIMINAL APPEAL CASE NO: HAA 0029/08

BETWEEN

EDWIN VIKASH
Appellant

AND

STATE
Respondent

Mr. Amrit Sen or the Appellant
Ms Bull for the State/Respondent
Date of Hearing & Ruling 24 October 2008

RULING

1.	Edwin Vikash, this is your appeal against sentence of 2 years imprisonment. In Labasa Magistrate Court Criminal Case No: CR 307,308,& 309 of 2008, you were charged with another and convicted on 3 counts of House Breaking Entering and Larceny: contrary to section 300(a) of the Penal Code Cap 17.

2.	It is evident from the particulars of the offence, that you committed three separate offences of house breaking entering and larceny contrary to section 300(a) of the Penal Code Cap 17. These offences were not committed on the same day nor were they committed against the same house property, but they were committed with close proximity in time and place, and for the purpose of sentencing, the trial Magistrate was correct in applying the ‘one transaction-rule’ of sentencing. 

3.	The liable maximum penalty for an offence under section 300(a) of the Penal Code Cap 17 is 14 years imprisonment.

Appellant’s Submission

4.	In his letter dated 2 July 2008, petitioning appeal, the appellant submits the following reasons in support of his appeal against sentence as being harsh and excessive: (court summary)

i)	The trial Magistrate did not show consistency and uniformity of approach by high sentence procedure and principles in arriving at the sentence and that which regards the first offenders;

ii)	The trial magistrate did not give due weight to the appellant’s guilty plea;

iii)	The trial Magistrate failed to consider that I cooperated with the police and all items were recovered;

5.	At the hearing of the appeal, the following additional submission were made by Mr. Amrit Sen on behalf of the appellant:

i)	The trial Magistrate failed to consider mitigating factors submitted by the appellant, in particular the fact that he is a first offender and that there were testimonies given by several community members;

ii)	All items were returned except a few food items that were already eaten;

iii)	The trial Magistrate erred when he said that one of the aggravating factors was the breach of trust. The facts of this case does not arise from a situation where there was a trust relationship between the appellant and the victims;

iv)	The trial Magistrate erred in law when he considered aggravating factors that were not part of the Summary of facts admitted by the appellant.

Respondent Submission

6.	Ms Sianiniu Faa’logo-Bull, counsel for the respondent was commendable in conceding that the trial Magistrate did not consider all the relevant mitigating factors that was submitted in the trial and referred to by Mr. Sen in his submission. However, she submits that the failure to refer to those mitigating factors did not result in a substantial miscarriage of justice.

7.	On the sentence of 2 years, the State submitted that it was not harsh nor excessive in that it was within the tariff for those offences. However, I note that there is an inconsistency with their claim that the trial Magistrate ‘….considered both mitigating and correctly identified an aggravating factor and proceeded to make appropriate adjustments in sentence on account of these.’ With their earlier concession that all relevant mitigating factors were not considered. 

Appeal Determination

8.	The court is concerned that the Court Record it was supplied with did not contain the letters of commendation for the appellant, submitted in the trial below as part of the mitigation that was placed before that court before it sentenced the appellant. Court staff must ensure that all documents filed in the Magistrate Court are included in the Court Record prepared for appeal purposes. Failure to do so, would lead to incomplete record being used by the High Court in determining appeals and that would be a miscarriage of justice.

9.	In this appeal, it was not until counsel for the appellant referred to certain letters of commendation during the hearing of this appeal, which was submitted during the trial in the trial, that I became aware that the court record I have been using for this appeal is incomplete because it did no contain those letters. 

10.	I have carefully reviewed the sentence determination by the trial Magistrate and the relevant law and principles he applied. I am satisfied that he was not in error when he chose the staring point of the sentence as 3 years imprisonment. The circumstances of this case and the need for deterrence required for this type of offending in our community justifies a higher starting point within the sentence tariff: see Naikelekelvesi v The State [2008] FJCA 11; AAU 061 of 2007.

11.	For the aggravating factors, in this case the trial Magistrate, considered that the ‘.. breaching the trust of your neighbours’ and ‘…..the offence took a lot of time to plan and execute’ as relevant. These factors were not in the summary of facts admitted to by the appellant, as a matter of law, it could not have been considered by the trial Magistrate, without the court hearing evidence on them. The trial Magistrate erred in law in taking into consideration 

12.	aggravating factors that were not part of the summary of facts admitted by the appellant.

13.	However, there were aggravating factors and these were: the physical violation of the home of the victims; the violation of the privacy of the home and the limited recovery of items stolen during the commission of these offending. The sentence is increased by 3 months to 3 years 3 months imprisonment.

14.	The mitigating factors that were relevant for consideration by the trial Magistrate were as follows: a 24 year old first offender with a young family to support; most of the item stolen taken were recovered; remorse expressed and high commendation from members of the community. I would reduce the sentence by 9 months to 2 years 6 months.

15.	For the guilty plea, the appellant pleaded guilty at the first available opportunity. In doing so he saved court time and resources, a further discount of a third of the sentence is justified in this instance: Hem Dutt v The State [2006] FJCA 59; AAU 066 of 2005. The sentence is 1 year 8 months imprisonment. I would vacate the sentence of 2 years imprisonment and substitute 1 year 8 months effective from 18 June 2008.

16.	Given the final sentence of imprisonment of 2 years decided by the trial Magistrate, he is required to consider section 29(1) of the Penal Code Cap 17. Under that provision a court must give consideration to the issue of whether to suspend or not the imprisonment term reached, especially whether the accused is a first offender. This was not done or at least there is nothing in the sentence ruling to inform on the fact that the court has considered it and decided not to suspend. The trial Magistrate erred in this regard.

17.	On this appeal I must now consider whether the sentence of 1 year 8 months should be suspended. Unlike the situation that prevailed at the time of sentencing in the Magistrates Court, this court may consider any exceptional circumstances of the case and those that may have arisen, up until this appeal.

18.	I have also given consideration to the observation of the Lord Chief Justice Lane in R v Bibi [1980] 1 WLR 1193 at page 1195 where he said:

‘ …sentencing courts must be particularly careful to examine each case to ensure, if an immediate custodial sentence is necessary, the sentence is as short as possible, consistent only with the duty to protect the interests of the public and to punish and deter criminal"

19.	I consider that there are exceptional circumstances in this case to suspend the term of imprisonment. I consider the following factors as relevant for the court’s decision to suspend the sentence in this case:

i)	the appellant is a first offender with a young family and is likely not to re-offend if given a second chance;

ii)	Most of the items stolen were recovered;

iii)	He has partially serve 4 months 2 weeks of imprisonment – a short and sharp term of imprisonment, a reminder of the folly of his ways;

iv)	Failure of the trial Magistrate to consider section 29(1) of the Penal Code Cap 17 during sentencing.

20.	I therefore suspend the balance of the sentence of 1 year 8 months imprisonment for a period of 2 years effective from today.

21.	In conclusion, the appeal against sentence succeeds on the terms outlined above. The conviction is confirmed.

ORDERS

22.	I make the following Orders

i)	Appeal against sentence succeeds;

ii)	Sentence of 2 years imprisonment is set aside and substituted with 1 year 8 months effective from 18 June 2008;

iii)	The balance of the term of imprisonment is suspended for a period of 2 years effective from today.

23.	The appellant was warned that if he re-offends within the 2 year period in which the balance of his imprisonment term in this case is suspended, the court convicting him may reactivate all or part of the suspended sentence.

Isikeli Mataitoga
JUDGE

At Labasa
24 October 2008.