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Reddy v State [2010] FJHC 538; HAA010.2010 (26 November 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAA 010 OF 2010

BETWEEN:

VINAY VIKASH REDDY
F/N PREM KUMAR REDDY
APPELLANT

AND:

STATE
RESPONDENT

Counsel: For the Appellant - In Person
For the Respondent - Mr. Kaisamy

Date of Hearing: 24.11.2010
Date of Judgment: 26.11.2010

JUDGMENT

1. The appellant Vinay Vikash Reddy was charged in the Magistrates Court under Section 299 & 270 of the Penal Code. The charge states as follows:

FIRST COUNT
Statement of Offence (a)

BURGLARY: Contrary to Section 299 and LARCENY IN DWELLING HOUSE: Contrary to Section 270 of the Penal Code, Cap 17.

Particulars of the Offence

VINAY VIKASH REDDY s/o PREM KUMAR REDDY on the 19th day of January 2008 at Labasa in the Northern Division, did break and entered by night the dwelling house of CHANDRA MANI SWAMY d/o VIRAPPA with intent to steal therein and did steal therein a Nokia Mobile phone valued $349.00 and cash $200.00 to the total value of $549.00, the property of CHANDAR MANI SWAMY d/o VIRAPPA.

2. The appellant was arrested on the 21st July 2008 and produced on the 24th July 2008. As per the record he was enlarged on bail.

3. The charge was read and explained to the Accused appellant on the 19th August 2009.

4. The Accused appellant pleaded guilty to the charges against him on the 10th December 2009. The learned Magistrate had imposed 3 years imprisonment, 18 months to run concurrent with the serving sentence, and the balance 18 months to run consecutively.

5. The appellant submitted that he had been mislead by the advice of the visiting Magistrate. Now I consider the appeal. Considering the appellants acquaintance with the Court, I am unable to accept that the appellant was misguided by the Magistrate. Further, he was not tried by the said Magistrate. He was tried by another Magistrate. On perusing the case record, he was before the Magistrates Court on 10 occasions and I do not see proceedings which indicates that the accused appellant was given any wrong advice or any misguidance by the Magistrate.

6. The Accused appellant submitted that Prosecuting Police Officer misguided him to plead guilty. Considering the reasons stated above, I am unable to accept this ground of appeal.

7. In the additional grounds of appeal, the appellant submitted that he had already served 6 months in Prison, and it was not considered. Now I peruse the record and find that the accused was arrested on 21/7/2008, and enlarged on bail on the 24/07/2008. He was sentenced in another case on the 16th June 09. He pleaded guilty in this case on 10/12/2009. The period he served in the Prison was for the other case. Considering the above facts this ground of appeal also fails.

8. The appellant submitted that he was not given discount for his plea and mitigation. Now I consider the reasons for the sentence of the Magistrate paragraph 4 states as follows:

"I have considered the fact of mitigation tendered by you and the fact that you pleaded guilty without going for a hearing. I will deduct one year of imprisonment to make the sentence 2 years."

The learned Magistrate had properly considered the circumstances and given the appellant one third discount. Therefore, I am of the view that the Magistrate had given the appellant a very reasonable deduction on the sentence. For the reasons setout above this ground of appeal also fails.

9. Even though it was not pleaded by the appellant, I visit the sentence imposed on him. When I perused the reasons for sentencing, I find the Magistrate had considered the previous conviction as aggravating facts. I re produce the relevant paragraph for easy reference.

"As you have admitted that you have 4 previous convictions and the fact that you are presently serving a term of 18 months imprisonment and more particularly the previous convictions are of Larceny and house breaking consider that as Aggravating Factors and I reduce (sic) the sentence by 1 year to make the sentence 3 years of imprisonment considering the submission make by you although it is a fit case to impose the sentence consecutively. I impose the sentence at 3 years to run concurrently with the present sentence you are serving."(emphasis added)

10. The Magistrate while considering the aggravating factors he had considered the previous convictions of the appellant which is incorrect. In Saurara vs The State (2008) FJSC 43; CAV0020.2007 27 February 2008. The Supreme Court of Fiji decides as follows:

"The only issue giving rise to a ground for special leave, is the use by the sentencing Judge of prior offences as aggravating factors. In our opinion it is wrong in principle to treat convictions for prior offences as aggravating circumstances attaching to a subsequent offence of the purposes of sentencing. An offender who has a significant record of prior offences is obviously unable to claim the benefit of mitigation on account of previous good character or a relatively minor criminal record. When considering the deterrent element of punishment necessarily involved in sentencing, the fact that a person has been convicted and sentenced previously for a number of offences similar to that under consideration by the sentencing court, may support a higher penalty in the current sentences by way of more effective deterrent. There are obviously limits on the extent to which sentences may be increased by reference to such considerations. It is however, strictly to regard the commission of previous offences as an aggravating circumstance in relation to the offence being dealt with."

11. Considering the above decision by the Supreme Court, I find considering of previous conviction by the Magistrate is inappropriate.

12. Considering all available materials, I do not see any reason to interfere with the conviction.

13. Due to the reasons stated above, I vacate the sentence of 3 years imposed on the appellant, and replace with 2 years imprisonment. I order this sentence to be implemented from the date of conviction.

14. Subject to variation in the sentence, the appeal is dismissed.

15. 30 days to appeal.

S. Thurairaja
JUDGE

At Labasa
26th November, 2010