Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Nausa v State [2011] FJHC 23; HAA022.2010 (28 January 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 022 OF 2010

BETWEEN:

ISOA NAUSA
Appellant

AND:

STATE
Respondent

Appellant in Person
Mr. T. Qalinauci for the State

Date of Hearing: 25 October, 9 December 2010 & 27 January 2011
Date of Judgment: 28 January 2011

JUDGMENT

[1] In the Magistrates Court at Ba on the 2nd August 2010 this appellant entered a plea of guilty (at first opportunity) to one charge of theft. He was charged with stealing a Sanyo digital camera which the Court was told had been recovered. On the 2nd September he was sentenced to 15 months for the offence and in addition the learned Magistrate activated a prior suspended sentence of 9 months ordering it to be served consecutively.

[2] The appellant now appeals his sentence to this Court on the grounds that:

(i) Insufficient weight was given for his early plea of guilty;

(ii) No weight was given to his co-operation in assisting the Police to recover the camera;

(iii) There was no violence;

(iv) The activation of the suspended sentence was harsh and excessive.

[3] The brief facts of the case were that on the 12th June 2010 the appellant stole a digital camera from the back seat of a car outside the Nailaga Mortuary, and ran off. The camera was worth $3000 and the appellant sold it a few days later to a third party at Churchill Park, Lautoka for an undisclosed sum.

[4] The appellant is 30 years old, a casual worker and married with one child. He cares for his sick mother and financially supports his brother and sister who are students. He was most remorseful and sought forgiveness from the victim. Sadly he has 19 live previous convictions, most of them in 2001 and 2002 but only 3 in the last five years. His latest conviction in February 2010 resulted in a suspended sentence of nine months imprisonment suspended for 2 years.

[5] When sentencing this appellant the learned Magistrate took a starting point of 12 months and then found it to be an aggravating feature that he committed the offence whilst on a suspended sentence. For that aggravation he added a further 6 months. He deducted 3 months for "co-operation with the Police, recovery of the items as well as your guilty plea" resulting in a sentence for the theft of 15 months. The Magistrate then activated the suspended sentence (having already asked cause why he shouldn't) and added this nine months consecutively to the theft sentence.

[6] Apart from punishing the appellant twice for offending while on a suspended sentence (aggravating feature and activating) the Magistrate unfortunately fell into error in activating the previous sentence.

[7] The new laws of procedure and sentencing now in place for one year have completely changed the Courts' approach to suspended sentences. Whereas previously suspended sentences could be activated at the discretion of the tribunal, this is no longer the case.

[8] All judicial officers, all Counsel (including State Counsel) and all police officers should by now know that activation of suspended sentences can only be effected pursuant to section 28 of the Sentencing and Penalties Decree 2009. If a suspect is in breach or thought to be in breach of a suspended sentence he must be charged with breach under section 28(1) and if he is found guilty of the breach then and only then MUST a Court activate the sentence.

[9] In this case the Magistrate had no lawful authority to activate the sentence, the appellant never having been charged with breach. His defence counsel also fell into error by obviously not knowing about section 28 when asked to make submissions on the suspended sentence.

[10] In his written submissions to this Court, State Counsel refers to section 28, even quoting the section verbatim, but then obviously not having understood the import of the section he has quoted, invites me to find that the Magistrate having given the accused time to show cause, quite properly activated the sentence.

[11] This failure on the part of Police, Counsel and the Magistrate to fully understand law that has been in place for 12 months is lamentable.

[12] The suspended sentence is quashed and I now turn to the 15 month sentence for theft. The starting point of twelve months is perfectly proper but to add 6 months to reflect the aggravation of a prior suspended sentence is, in this Court's view, rather excessive there being in existence machinery to deal with suspended sentences (as referred to supra).

[13] From his total of 18 months, to allow only 3 months for the very powerful mitigation available to this accused was derisory. The accused pleaded guilty as soon as he possibly could and he willingly co-operated with the Police: his record is not attractive but he should not be punished for it. In any event the record shows an attempt to reform.

[14] Early pleas of guilty should be rewarded and until the Fiji Court of Appeal issues specific guidelines it should be a rule of thumb that at least 25% if not 33% discount should be given depending on the timing and sincerity of the plea.

[15] From the starting point of twelve months perhaps a proper discount could have been 3 or 4 months, and with no aggravating features the sentence should have been in the region of eight to nine months.

[16] The appellant has been in custody now for 7 months which equates to a term of approximately 10 months taking into account remission.

[17] In the premises, and considering that this appellant has been treated so unfairly, I make the following orders:

(i) The appeal against sentence is allowed.

(ii) The consecutive suspended sentence of nine months is quashed.

(iii) The appellant having been in custody since June 2010 is sentenced to a term of imprisonment that will allow his immediate release today.

Paul K. Madigan
Judge

At Lautoka
28 January 2011